Mr Khosrow Ehtesami v Phoenix Building Approvals

[2018] FWC 2325

[2018] FWC 2325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Khosrow Ehtesami
v
Phoenix Building Approvals
(U2018/1798)

COMMISSIONER JOHNS SYDNEY, 24 APRIL 2018

Application for relief from unfair dismissal - whether to extend time for lodging the application. .

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Koshrow Ehteshami (Applicant) a further period for lodgement of his application for an unfair dismissal remedy. The relevant circumstances are as follows:

a) employment terminated by Phoenix Building Approvals Pty Ltd (Respondent) on 24 August 2017;  3

b) completed F2 application lodged on 22 February 2018,

c) application therefore filed 182 days after the employment was terminated;

d) that being 161 days after the 21 day time limit provided for in the FW Act.

[3] In his F2 application the Applicant acknowledged that his application was filed late. He explained the delay as follows:

“Was suffering from shoulder injury at that time. Also called Legal Aid, but they could not give me any time within 21 days, which I was not aware of this deadline. And on Feb 2018 which I could talk to them they said the 21 days is over. This is when I knew about the 21 days.”

The jurisdictional objection

[4] On 19 April 2018 the Respondent formally indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.

[5] On 28 March 2018 the Commission (as constituted by her Honour Deputy President Dean) asked the Applicant to further explain the reason for the delay in filing his application.

[6] On 4 April 2016 the Applicant wrote to the Commission in the following terms, 4

“After my unfair dismissal … I was in a state of shock. As I had a history of [medical condition], by [medical condition] became worse and I could not think clearly and failed to fill out the Fair Work Australia form within the first 21 days which I had to do.

It was [not] until February 2018 that my new local GP [medical treatment disclosed].

A few weeks after [medical treatment]… Then I thought I should do something about Unfair Dismissal, which I went to Fair Work Australia and filled out the form.”

[7] The Applicant also filed a Medical Certificate. It confirmed a presentation on 3 February 2018 and diagnosis. It also advised of a continuing condition since 2000.

[8] On 4 April 2018 the Respondent continued to refute the Applicant’s submission. It noted that there was no evidence of the medical condition during the period of employment. It disputed that the medical condition could have prevented the Applicant from filing an application for 5 months.

[9] On 5 April 2018 the matter was allocated to me. On the same day I issued Directions as follows,

“Any party wanting to file any evidence (witness statement), submissions or documents in support of their position addressing each subsection in section 394(3) of the Fair Work Act 2009 (Cth) (attached) must do so by 4pm on Thursday, 19 April 2018.”

[10] On 18 April 2018 the Applicant filed:

a) a Witness Statement by Shirin Ehteshami (his wife), and

b) the Medical Certificate previously filed and dated 10 March 2018.

[11] On 19 April 2018 the Respondent objected the Commission relying upon the material filed by the Applicant. It submitted it should be given no probative weight.

[12] The matter was listed for hearing before me yesterday. The Applicant represented himself. The Respondent was represented by its Director, Richard Shalala.

Legislative scheme

[13] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[14] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 5 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.  6

Facts leading up to and relating to the dismissal

[15] The following matters were agreed between the parties:

a) the Respondent is a small business. The Respondent is a building approvals company. It provides Fire & Life Safety Code, BCA Regulation and Fire Safety Engineering & Inspection services to the Building & Construction Industry.

b) the employment commenced on 4 or 14 April 2016. Nothing turns on the commencement date.

c) the Applicant was employed as a A4 accredited building inspector.

d) the Applicant earned $60,000 per annum plus superannuation.

e) On 24 August 2017 there was an incident. The Respondent says the Applicant behaved in an aggressive manner. The Applicant denies this and makes counter-allegations against the Mr Shalala, which he denies.

f) The employment ended on that day.

g) On 25 August 2017 the Applicant was paid 32 hours for work up to the cessation date. He was also paid 8 hours’ notice and accrued leave.

h) On 5 September 2017 the Applicant was paid a further 32 hours pay in lieu of notice (and further accrued leave amounts).

Consideration of s.394 criteria

Paragraph 394(3)(a) - The reason for the delay

[16] I find that there were 182 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission. That is a period just short of 6 months.

[17] In the hearing before me yesterday the Applicant reiterated that the reasons for the delay were:

a) his state of shock following the dismissal,

b) that he could not think clearly,

c) his medical condition, and also

d) that he did not know about the 21 day time limit.

[18] The first point to make is that it is not uncommon for applicants to not know about the 21 day time limit. In fact it is a reason that is regularly encountered by the Commission. In any case, it is well established that ignorance of the timeframe for lodgment is not an exceptional circumstance. 7

[19] in so far as the Applicant relies upon his state of shock following the dismissal, a state of shock is routinely experienced by employees following termination of their employment. It is not an exceptional circumstance.

[20] In so far as the Applicant relies upon his medical condition, the medical certificate provided by the Applicant is insufficient evidence of him being unable to file an unfair dismissal application in the nearly 6 months after the termination of his employment. The medical condition described is regularly and routinely encountered by many Australians. It is not one that necessarily renders them incapable of filing a legal proceeding. The medical certificate provided did not disclose how the medical condition made the applicant incapable of filing an unfair dismissal application.

[21] During the hearing I explored with the Applicant his capability during the period between the termination of his employment and the filing of the unfair dismissal application on 22 February 2018. In answer to questions from me the Applicant indicated that he had undertaken some work in the months following the cessation of his employment. However, it appeared that once he realised this evidence would count against him he recanted from it. He did not recant from the evidence he gave that, following the termination of his employment, he made applications for work. Mr Shalala confirmed that he had been contacted by three prospective employers to provide a reference for the Applicant (which he declined to do). Further, the applicant did not recant the evidence that he gave that since receiving adequate treatment in February 2018 he has been able to undertake some work.

[22] The Commission must consider the reason for the delay. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. 8

[23] In the present matter the Applicant has not provided a credible explanation for the entirety of the delay. It seems that, following the termination of the employment he was well enough to make applications to prospective employers. Further, he has been well enough to work at least since February 2018. Therefore, the reasons advanced by the applicant do not explain why he did not file his application within time.

[24] Therefore, this factor weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[25] It is uncontested that the Applicant was at least aware of the dismissal by the first week of September 2017. However, I find that he first became aware of it on 24 August 2017.

[26] Therefore, this factor weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[27] The Applicant took no other action to dispute the dismissal other than file this application.

[28] The limited action taken by the Applicant to dispute the dismissal weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[29] It is to be noted that the delay in this matter is lengthy. In the hearing before me yesterday Mr Shalala explained that one of the employees named as a witness has left the employer.

[30] Consequently, I find that, in addition to the usual prejudice associated with delay, there may be some exceptional prejudice in the present matter.

[31] The prejudice asserted by the Respondent weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(e) - The merits of the application

[32] In the matter of Kornicki v Telstra-Network Technology Group 9the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 10

[33] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[34] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[35] The substantive factual contest between the Applicant and the Respondent is what occurred on 24 August 2017. Allegations are made both ways about inappropriate/aggressive conduct. This is not a factual dispute that can be resolved at a jurisdictional hearing.

[36] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[37] If the Applicant can establish to the satisfaction of the Commission that he was subject of aggressive behaviour (which I note is denied) then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[38] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[39] The parties agreed that this factor is not relevant.

Conclusion

[40] When the s.394(3) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Rather, the circumstances described by the Applicant are regularly, or routinely, or normally encountered. Consequently, they are not exceptional circumstances.

[41] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

[42]An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr Khosrow Ehtesami for the Applicant

Richard Shalala, Director, Phoenix Building Approvals for the Respondent

Hearing details:

2:30PM by Telephone

23 April 2018

Printed by authority of the Commonwealth Government Printer

<PR602233>

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3   The Applicant says his employment was terminated on 7 September 2017. However, it seems clear that this is a misunderstanding arising out of the payment of notice. In any case, nothing turns on the date of dismissal. In either case the application is significantly out of time.

 4   In the interests of protecting the Applicant’s privacy I have decided it is unnecessary for present purposes to disclose the medical condition

 5 [2011] 203 IR 1

 6 Ibid [13].

 7   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Lawler VP, Sams DP, Williams DP, 16 February 2011) at para. 14, [(2011) 203 IR 1]

 8   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 39

 9   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 10   Ibid.