Mr MD Moniruzzaman v EG Fuelco (Australia) Limited
[2022] FWC 3225
•16 DECEMBER 2022
| [2022] FWC 3225 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr MD Moniruzzaman
v
EG Fuelco (Australia) Limited
(U2022/7948)
| COMMISSIONER CAMBRIDGE | SYDNEY, 16 DECEMBER 2022 |
Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused.
This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by MD Moniruzzaman (the applicant) and the respondent employer is EG Fuelco (Australia) Limited (the employer).
The application was lodged with the Fair Work Commission (the Commission) at Sydney on 30 July 2022. The application indicated that the dismissal of the applicant took effect on 24 June 2022. Consequently, the application was made some 15 days after the 21 day time limit prescribed by subsection 394 (2) of the Act.
On 18 August 2022, the employer filed a response to the application (Form F3) which identified inter alia, a jurisdictional objection to the application on the basis that the application, filed on 30 July 2022, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection).
During a Pre-Hearing Conference/Conciliation proceeding conducted on 9 September 2022, attempts to reach a conciliated settlement of the matter were unsuccessful. The Commission issued Directions which required the Parties to file and serve evidence and submissions in respect to the out of time objection, and to also provide clarification whether they were content for the out of time objection to be determined upon the documentary material which had been filed, or alternatively if either Party requested a Hearing.
Subsequently, the Parties have provided evidence and their respective submissions regarding the out of time objection, and on 8 November 2022, the employer provided email confirmation that they were content to have the out of time objection determined upon the filed documentary material. On 16 November 2022, the applicant filed and served an email that confirmed that he was “…requesting the honourable Commissioner to grant my extension of time application based on the submitted evidence and the submission.” Consequently, the determination of the out of time objection has been provided upon careful examination and consideration of the filed documentary material which included some video evidence that was provided by the applicant.
Relevant Factual Background
The applicant had worked for the employer for more than 9 ½ years. The applicant worked in a position of Console Operator at the employer’s retail fuel and convenience outlet located in the Sydney suburb of Woolooware. The applicant was engaged on a permanent part-time basis.
On 8 May 2022, the applicant returned to work after taking five weeks of approved annual leave. On 20 May 2022, the applicant sought approval for another period of almost six weeks annual leave from 10 June to 21 July 2022. The employer initially refused to approve the applicant’s request, and it declined to grant any further period of annual leave. However, the applicant advised the employer that the request for annual leave was made to facilitate his travel to Bangladesh to assist with the care of his mother-in-law who was seriously ill, and upon receiving this advice, the employer told the applicant that it would grant approval for a maximum of two weeks annual leave.
On 1 June 2022, the employer formally declined the applicant’s request for annual leave. The applicant had indicated to the employer that he had purchased flights to Bangladesh and that the shorter period of two weeks annual leave would not provide sufficient time for the anticipated care requirements for his mother-in-law. On 12 June 2022, the applicant (and his spouse and daughter) flew from Australia to Bangladesh.
On 20 June 2022, the employer sent an email to the applicant which included a letter that was titled “Re: Show Cause – Proposed Termination of Employment” and this show cause letter advised inter alia, that the applicant’s request for annual leave had been declined, and that the employer was unable to hold the applicant’s permanent part-time role open for an extended period of time. Further, the letter advised that the employer was treating the applicant’s unapproved absence from work as a breach of contractual obligations, and the applicant was invited to provide a response as to why his employment should not be terminated because of his unapproved absence.
On 23 June 2022, the applicant sent an email to the employer in response to the show cause letter. The email response from the applicant provided the employer with copies of medical documentation including a Discharge Certificate for the applicant’s mother-in-law which confirmed her hospital admission for the period 9 to 22 May 2022. The medical documentation provided by the applicant also included a letter from Dr. Md. Zakir Hossain, Chief Cardiac Surgeon, Ibn Sina Cardiac Center, which stated that the applicant’s mother-in-law had suffered a stroke and heart attack and that “…she needs 24 hours care for next 16 or more weeks to improving after current situation. And as my knowledge her Daughter & Son in law only available to looking after for post stroke.” The medical documentation that was provided by the applicant was not accompanied by any explanation, elaboration, or response to the show cause letter.
On 24 June 2022, the employer sent the applicant an email which included a letter that was titled “Re: Termination of Employment”, and which confirmed that the applicant had been dismissed “…for breach of contractual obligations having absented yourself from the workplace on extended leave without approval.” The applicant responded to the termination of employment letter on the day that he received it, 24 June 2022, by mentioning that he was returning to Australia on 20 July 2022.
On 20 July 2022, the applicant returned to Australia from Bangladesh. On 21 July 2022, the applicant submitted an online inquiry with the Fair Work Ombudsman regarding the circumstances surrounding his dismissal. On 25 July 2022, Joshua from the Fair Work Ombudsman provided the applicant with an online response which inter alia, stated, “As you’ve noted, your employment ended on 24/06/2022. Unfair dismissal has a timeframe of 21 days from the point of termination to apply, so this option may no longer be applicable.”
On 26 July 2022, the applicant sent an email to the employer’s HR department and requested that they “withdraw/consider my termination for medical purposes.”
On 28 July 2022, the employer’s Employee Relations Specialist, Ms Saville, sent an email to the applicant which relevantly included the following statement, “I have reviewed the information on your case and can confirm the decision of termination will stand.”
On 30 July 2022, the applicant filed his claim for unfair dismissal remedy which was made 15 days after the 21 day period following the dismissal that operated from 24 June 2022.
The Applicant’s Case in Support of an Extension of Time
The applicant provided documentary material dated 30 September 2022, to support a finding that there were exceptional circumstances upon which the Commission should grant an extension of time, and this material included evidence and submissions in support of that outcome. The applicant also provided further material dated 10 November 2022, in support of an extension of time and in opposition to the out of time objection raised by the employer. This further material also included still photographs and video footage of the applicant’s mother-in-law.
The submissions made by the applicant included a series of assertions that were said to have established exceptional circumstances which provided basis for the Commission to grant an extension of time. The applicant submitted that he was unaware of his legal rights, in particular the 21 day time limit, and that because he was overseas when the termination of his employment occurred, he had limited internet access, and this meant that he had great difficulty exploring his legal options.
The submissions made by the applicant also asserted that he was busy looking after his mother-in-law and that while he was overseas most of his family members were affected by COVID-19. In addition, the applicant stated that his wife, his daughter, and he himself, all suffered from “food poising [sic] and diarrhoea” whilst they were overseas.
The applicant submitted that because of the various difficulties that he confronted while overseas, the 21 day time period should start from the day that he returned to Australia, that being 20 July 2022. In this regard, the applicant said that he contacted the Fair Work Ombudsman within 24 hours of his return to Australia, and he lodged the unfair dismissal claim 10 days after he had returned to Australia.
In further submissions, the applicant referred to the mental stress that was caused by his termination during the time that he was looking after a seriously ill immediate family member. The applicant also mentioned the issue of dispute about payment of personal leave entitlements, and that the termination after almost 10 years of service was unfair and caused him physical and mental issues.
In summary, the applicant provided material which asserted that the reasons for the delay with the filing of his unfair dismissal claim involved, firstly, that he was unaware of the 21 day time limit, secondly, he was confronted with communication, health, and other difficulties associated with being overseas at the time of the dismissal, and thirdly, he was occupied with caring for his seriously ill mother-in-law. Further, the submissions made by the applicant asserted that he had acted quickly upon his return to Australia, and he had made the unfair dismissal claim within 10 days of his return. The applicant submitted that there were exceptional circumstances that were “of an uncommon and out-of-ordinary course, and I had not had an opportunity to seek a piece of legal advice within the period of 21 days from the Termination letter.”
The Employer's Case in Opposition to an Extension of Time
The employer provided an Outline of Submissions document dated 14 October 2022. The employer’s Outline of Submissions document set out the relevant factual circumstances surrounding the termination of the applicant’s employment, and the events that followed the dismissal and which then led to the filing of the late unfair dismissal application on 30 July 2022.
The material provided on behalf of the employer asserted that there were no exceptional circumstances to warrant an extension of time. In particular it was asserted that, taking into account all of the relevant matters for consideration, the Commission should decline to exercise its discretion to grant an extension of time.
The submissions made by the employer focused upon the asserted reasons for the delay that had been advanced by the applicant. In this regard, particular criticism was raised of there being no reasonable explanation for why the applicant did not act sooner to challenge his dismissal. The employer submitted that the applicant had the ability to provide medical documentation to the employer in response to the Show Cause letter of 20 June 2022, and this demonstrated that he could have challenged his dismissal before his return to Australia.
The submissions made by the employer also made criticism of the delay that occurred after the applicant had returned to Australia. In this regard, the employer stated that there was no evidence to suggest that the applicant experienced exceptional circumstances upon his return to Australia so as to provide any justification for a further delay of 10 days. The employer submitted that “This delay is sufficient to suggest disregard for both the decision and the unfair dismissal process and a sufficient reason for this application to proceed no further.”
The employer further submitted that the applicant’s suggestion that he had insufficient internet access should not be accepted, as it was clear the applicant had the time and capacity to respond to letters that were sent to him in relation to his absence. Further, the employer stated that in any event, even in the absence of an internet connection, the applicant had the capacity to make phone calls to inter alia, the Fair Work Commission.
The submissions made by the employer also asserted that there was insufficient merit in the applicant’s case as he had been dismissed for a valid reason involving his wilful and deliberate absence from the workplace contrary to the employer’s clear refusal to grant the extended period of leave that he had sought.
In summary, the submissions made by the employer asserted that the Commission should not exercise its discretion to grant an extension of time because the applicant had not established exceptional circumstances in any explanation for his delay in making the application 15 days late. Further, the employer submitted that it was clear that the applicant had been notified of his dismissal on 24 June 2022, and he had not taken action to dispute his dismissal until 10 days after his return to Australia, and in any event, there was an absence of merit in respect to the applicant’s unfair dismissal claim.
Consideration
Subsection 394 (2) (a) of the Act stipulates that an application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) allows for an extension of the 21 day time period if, pursuant to subsection 394 (3), exceptional circumstances are established.
In this case, the application was filed on 30 July 2022, which was some 36 days after the day on which the applicant’s dismissal took effect, 24 June 2022. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 15 days after the expiry of the 21 day time limit.
Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) of the Act is in the following terms:
“(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.”
As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.
Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.
Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.
In this case the delay was 15 days relevant to the 21 day time limit. Consequently, the period of the delay of a further 15 days in the context of a 21 day time limit could be appropriately described as a significant delay in the context of the statutorily prescribed time limit.
Subsection 394 (3) (a) - The Reason for the Delay
In this instance, the reasons for the delay that were advanced by the applicant involved firstly, communication difficulties associated with his absence from Australia at the time that he was notified of his dismissal, and secondly, the applicant placed reliance upon the carers responsibilities that he was occupied with involving his seriously ill mother-in law, and thirdly, the applicant asserted that he also suffered from health issues whilst he was travelling overseas.
Ordinarily, the message of dismissal should be communicated personally, that is by way of face-to-face contact with arrangements for the presence of a support person and the provision of documentary confirmation. However, in this instance, where the applicant had been absent from work in contravention of the employer’s directive whereby it had refused his request for an extended period of leave, there was no reasonable prospect for the advice of dismissal to be communicated personally. In circumstances where advice of a dismissal is communicated by means other than direct contact between the employer and the employee, the 21 day period to lodge an unfair dismissal application could not begin to run before an employee who has been dismissed became aware that they had been dismissed, or at least had a reasonable opportunity to become aware of the dismissal.
In this case, the employer had communicated with the applicant by email which firstly provided him with the Show Cause letter. The applicant provided an email response to the Show Cause letter, which included copies of medical documentation including a Discharge Certificate for the applicant’s mother-in-law which confirmed her hospital admission for the period 9 to 22 May 2022. The medical documentation provided by the applicant also included a letter from Dr. Md. Zakir Hossain, Chief Cardiac Surgeon, Ibn Sina Cardiac Center.
The employer then provided the applicant with an email communication which included a letter that was titled “Re: Termination of Employment” and which confirmed that the applicant had been dismissed “…for breach of contractual obligations having absented yourself from the workplace on extended leave without approval.” The applicant responded to the termination of employment letter on the day that he received it, 24 June 2022, by mentioning to the employer that he was returning to Australia on 20 July 2022.
Consequently, in these circumstances, the actions of the employer in respect of the communication of advice to the applicant of his dismissal, were entirely reasonable and could not provide any basis to establish a reason that could justify any delay with challenge to the dismissal, particularly including the filing of an application for unfair dismissal remedy. There was clear and acceptable notification of dismissal on 24 June 2022, albeit communicated by email.
In respect to the reasons for the delay in filing the unfair dismissal claim, the applicant attempted to rely upon communication difficulties associated with his absence from Australia at the time that he was notified of his dismissal. The applicant asserted that he had limited internet access which meant that he could not engage in the research necessary to understand his legal rights, and he was unaware of the 21 day time limit for making an unfair dismissal claim. These communication difficulties were said to have been compounded by the applicant’s need to attend to the care of his seriously ill mother-in-law.
There would naturally be some level of difficulty associated with communication from a location outside of Australia. However, it was clear that the applicant could communicate with the employer in response to the Show Cause letter and the notification of dismissal. There was no explanation for why the applicant could not have accessed the Fair Work Commission website to obtain the relevant information about making an unfair dismissal claim, which of course, can be made online from anywhere in the world. Even if the applicant had limited time for internet access, he could have communicated by telephone or other means, with someone in Australia who could have undertaken the research about making an unfair dismissal claim. Frankly, if there is any criticism that could be made of the access to information and assistance with making an unfair dismissal claim, it may be considered to be a process that can be too easily activated.
Therefore, the asserted communication difficulties that the applicant said that he experienced whilst being in Bangladesh when he was notified of his dismissal, must be rejected as reason to justify any delay with the making of the claim for unfair dismissal. There was no evidence to sustain the proposition that the applicant was in any way prevented from being able to take steps to research and make a claim for unfair dismissal because of his absence from Australia at the time that he was notified of his dismissal. Similarly, there was no evidence to support the proposition that he was so occupied with the activities involving the care of his mother-in-law that he was unable to find the time to research and make a claim for unfair dismissal before he returned to Australia. Further, there was no evidence that the ill health of the applicant, who was apparently inflicted with “food poising [sic] and diarrhoea” whilst overseas, prevented him from taking action to pursue an unfair dismissal claim.
In addition, there was no evidence to provide explanation for the applicant’s further delay in filing an unfair dismissal claim after his return to Australia and particularly when information provided by the FWO highlighted the 21 day time limit for filing an unfair dismissal claim. At this point in time, circa 25 July, the applicant could have filed an unfair dismissal claim immediately, and there was no explanation provided for the delay of a further 5 days. In these circumstances, to delay filing any claim without satisfactory explanation, must represent a failure to act with sufficient timeliness.
Consequently, when the reasons for the delay are carefully and objectively considered, they do not provide a sound and acceptable reason upon which to establish that the applicant acted with an appropriate level of diligence and genuine regard for undertaking challenge to his dismissal.
Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect
The applicant first became aware of his dismissal on 24 June 2022, when he was sent an email with the attached letter of dismissal. The applicant had been alerted to the prospect of dismissal 4 days earlier when he was provided with the Show Cause letter. Therefore, the applicant first became aware of his dismissal on the date that it took effect, 24 June 2022, and this factor does not provide any assistance to the applicant.
Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal
The applicant did not take action to dispute his dismissal prior to the online enquiries that he made with the FWO on the day after his return to Australia, 21 July 2022, which was the 26th day after his dismissal took effect. There was subsequently no satisfactory explanation for any subsequent delay in disputing the dismissal in the period after the FWO had alerted the applicant to the 21 day time limit for filing an unfair dismissal claim. Therefore, this factor does not provide any assistance to the applicant.
Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)
There was a paucity of evidence as to the details of any prejudice. No identifiable evidence was provided to support any particular submissions that could be made on this point. The time frame of the delay would logically provide some potential for prejudice to arise. On balance, this factor has been treated as being neutral.
Subsection 394 (3) (e) - The Merits of the Application
This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if an extension of time was granted.
It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly, in this instance it was relevant to note that the applicant did not dispute the reason for his dismissal, namely, that he had been absent from work in direct contravention of the employer’s refusal to approve the extended period of leave that was sought by the applicant.
Importantly, the employer had attempted to accommodate the carers responsibilities of the applicant when, having been informed of the illness of the applicant’s mother-in-law, it offered a compromised position that provided for an alternative, shorter period of leave. However, the applicant refused to engage in any dialog regarding the employer’s proposed compromised position.
There should be some reasonable accommodation and understanding for the circumstances involving the illness of the applicant’s mother-in-law and the need for the travel to Bangladesh. However, it appeared from the evidence that the applicant had essentially decided that he would take the amount of leave of his choosing irrespective of the directive of the employer, and without any preparedness to discuss any compromise. Consequently, the actions of the applicant were in direct defiance of the reasonable and lawful directive of the employer and would logically establish valid reason for his dismissal.
On any objective and balanced assessment, albeit of only an elementary nature, the applicant’s unfair dismissal claim presents as a matter with very limited prospects for success. Therefore consideration of this factor would provide little support for the granting of an extension of time.
Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position
In the absence of any evidence about the treatment of other employees of the employer this factor has been treated as being neutral.
Exceptional Circumstances
Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case of Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[1]. The consideration therein establishes a caution against adopting an overly stringent interpretation of what constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.
Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in CheyneLeanne Nulty v Blue Star Group Pty Ltd[2]and the following paragraph from that Decision is particularly helpful:
“[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.”
Conclusion
In this instance the exercise of the discretion to extend time has been required in respect to a delay of 15 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.
The reasons for the delay have included the issue of the communication of advice of dismissal to the applicant by way of email and when the applicant was in Bangladesh. The applicant asserted that he had communication difficulties because he was in Bangladesh and with only limited internet access. However, the evidence does not support the proposition that the applicant was prevented from making relevant inquiries and initiating an unfair dismissal claim.
Additionally, the applicant placed reliance upon the assertion that he was fully occupied with caring for his mother-in-law, and that he had suffered his own health issues. Once again, the evidence does not establish that the applicant was so busy or incapacitated such that he was prevented from taking steps to make an unfair dismissal claim before he returned to Australia. Following careful analysis of these issues, there has not been a satisfactory reason provided for either the initial delay between dismissal and contact with the FWO shortly after the return to Australia, or the subsequent delay in the period following the communication from the FWO and the filing of the unfair dismissal claim.
The other factors under consideration either did not assist the applicant's claim for the Commission to exercise the discretion to extend time or were of neutral impact. On any reasonable and objective assessment, the application had very limited potential merits.
Consequently, in this instance the Commission has been required to carefully evaluate and balance all of the relevant factors. In particular, in this instance there was not an acceptable reason for the delay in filing the application.
On balance and having particular regard for the absence of any satisfactory reason for the delay in the entire period after dismissal until the late filing of the application, the Commission has determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case there was no acceptable reason for the delay. Therefore there could be no sound and proper justification for the Commission to exercise the discretion to extend time.
An Order [PR748670] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.
COMMISSIONER
[1] Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394
[2] Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
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