Mr Mehluli Sibanda v Ayuya Pharmacy Trust. & Others T/A HealthPro Pharmacy

[2023] FWC 435

[2023] FWC 435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Mehluli Sibanda
v

Ayuya Pharmacy Trust. & Others T/A HealthPro Pharmacy

(C2022/7446)

DEPUTY PRESIDENT CROSS SYDNEY, 2 March 2023

Application to deal with contraventions involving dismissal

1. This Decision was originally made on an ex-tempore basis on transcript on 14 February 2023. In publishing these Reasons, I have taken the opportunity to revise same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).

1. Mr Mehluli Sibanda (the Applicant) was employed by Ayuya Pharmacy Trust & Others trading as HealthPro Pharmacy (the Respondent).  The reasons for the Applicant's termination of employment revolved around disputes involving his travel to Zimbabwe to attend on his seriously ill mother.  That travel, in the Respondent's submission, dealt a serious blow to the Respondent's own arrangements in relation to booked holidays. 

1. The Applicant has applied for a general protections remedy (the Application) under section 365 of the Fair Work Act 2009 (Cth) (the Act).  That Application was lodged on 9 November 2022.  Applications for general protections remedy must be made within 21 days after dismissal took effect.  As the Applicant's employment was terminated from 24 September, based on that date, the Application for remedy should have been lodged no later than 15 October 2022, taking into account weekend days.  The Application was therefore lodged out of the time prescribed and was made, in effect, 23 days after the last date on which it could have been made.

1. The Act allows the Commission to consider extending the period within which an application for a general protections remedy may be made if it is satisfied that there are exceptional circumstances. 

1. The matters I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are outlined in section 366(2) of the Act.  Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances.  The requirement that these matters be taken into account means each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.  Individual matters might not, viewed in isolation, be particularly significant, so it's necessary also to consider the matters collectively and ask whether, collectively, the matters show exceptional circumstances. 

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.  I must be satisfied, taking into account section 366(2), that there are exceptional circumstances.  I will now consider these matters.

1. In relation to the reason for delay, the Act does not specify what reason might tell in favour of granting an extension of time, but the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances. 

1. Essentially, the reason put by the Applicant in relation to why his Application was late goes to asserted difficulties in obtaining legal advice upon his return to Australia on 15 October 2022.  15 October 2022 is a relevant date because that is the date upon which the Application should have been filed.  That was the last date for filing. 

1. On the Applicant's statement, it notes that, upon returning to Australia, the Applicant began to make enquiries with local solicitors in Maryborough but was unable to find a solicitor who could see him and eventually made contact with a solicitor on 24 October 2022.  He had an initial telephone appointment to provide instructions on 25 October 2022 and, following that meeting, the solicitor provided advice on 27 October 2022, that was, apparently, captured in the junk mail of the Applicant's email system and he did not see that email until he followed up with the solicitor on 2 November 2022, and was able to obtain the advice that, he says, was sent to him on 21 October 2022 (I note this as being some days before his evidence says he saw his solicitor). 

1. The Applicant then states that, over the next few days, he provided his solicitor with information requested to complete the Application and it was completed and filed on 9 November 2022. 

1. The chronology presented as constituting an exceptional reason for delay is extraordinary in its lack of attention to the urgency of filing an application.  It is clear that the Applicant was able to obtain legal advice some weeks before he finally filed his Application and yet the necessary urgency that would have attended on such enquiry and advice was simply not followed. 

1. In the circumstances, I am not satisfied the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case. 

1. Turning to the question of whether the Applicant had taken action to dispute his dismissal, it is relevant that the first the Respondent knew of the Application was upon receipt of that Application at least 23 days after the expiry of the 21-day period.  In the circumstances, this is also a matter that weighs in favour of the Respondent, though not to the level of magnitude in relation to acceptable reason. 

1. As to prejudice, the Applicant submits that there can be no prejudice to the Respondent, although it was a difficult submission to follow.  Effectively, there had been no claim of prejudice suffered by the Respondent, although I note that there were no materials filed at all by the Respondent, but, in the circumstances of this matter, I can only conclude that this is neutral in this instant case. 

1. Regarding the merits of the Application, in cases such as this, where the substantial merits of an Application are not fully examined into or agitated, it is inappropriate that I make an assessment about the merits based on the limited material that is available.  At the least, I would say that it would appear that there is arguable merit on either side. 

1. Regarding fairness as between the applicant and other persons in a similar position, neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.  I therefore consider this to be a neutral consideration. 

1. In conclusion, statutory time limits that are applicable to the exercise of a person's right to bring a general protections remedy are an expression of parliament's intention that rights should be exercised promptly so as to bring about certainty.  Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty.  The reason for time limits is that parties should be able to know that, if there is a question about an action taken by one party, in this case in relation to a dismissal, the right to question that action will be exercised promptly; otherwise, except in exceptional circumstances, a right to bring the action will be lost. 

1. My conclusions in this matter have been that the factors that weigh in favour of the Respondent and against the Applicant were, principally, the absence of any acceptable reason for a delay and the failure of the Applicant to take any action to dispute the dismissal. 

1. In those circumstances, I have indicated I am not satisfied there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the Application. 

1. An extension of time is therefore refused and the Application for a general protections remedy made by the Applicant is dismissed.  An order to that effect will be separately issued. 

DEPUTY PRESIDENT

Appearances:

Mr D Lang, for the Applicant
Ms A Ayuya, for the Respondent

Hearing details:

2023.
February 14.
Sydney.

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