Mr Mohammedakram Malek v Velvet Paints Pty Ltd T/A Inspiration Paints

[2021] FWC 4241

[2021] FWC 4241

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Mohammedakram Malek
v
Velvet Paints Pty Ltd T/A Inspiration Paints
(U2021/5388)

COMMISSIONER O'NEILL MELBOURNE, 19 JULY 2021

Application for an unfair dismissal remedy.

[1] These are edited reasons of the decision delivered ex tempore and recorded in transcript on 19 July 2021. Mr Mohammedakram Malek was employed by Velvet Paints Pty Ltd (which trades as Inspiration Paints) as a salesperson. He was employed from 2 September 2019 until his employment was terminated effective 25 May 2021.

[2] On 21 June 2021, Mr Malek applied for an unfair dismissal remedy. This was 6 days after the expiry of the 21-day period allowed for unfair dismissal remedy applications to be made. 1 Mr Malek’s application should have been made by 15 June 2021.

[3] The question is whether additional time should be allowed for Mr Malek to make his application to the Commission.

Extension of Time

[4] Additional time can be allowed under section 394(3) of the Fair Work Act 2009 (Cth) (Act) if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”. 2 In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

•  the reason for the delay,

•  whether the person first became aware of the dismissal after it had taken effect,

•  any action taken by the person to dispute the dismissal,

•  prejudice to the employer (including prejudice caused by the delay),

•  the merits of the application, and

•  fairness as between the person and other persons in a similar position.

Reason for delay 

[5] The Act does not specify what reason for delay might justify granting an extension however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour however, all of the circumstances must be considered. 3

[6] Mr Malek says that he lodged his application late for several reasons.

[7] Firstly, he thought that Velvet Paints had dismissed him in anger, and that once they had calmed down, they would change their mind and call him to return to his job. Mr Malek says he believed this because it had happened before with other staff at the Oakleigh office. Mr Malek understood from a conversation with another staff member that a former employee had at one point in time been re-employed by Velvet Paints even though they had allegedly stolen something. Mr Malek did not have any details of what had occurred in that case and had never spoken to either the company or the individual concerned about it. It had been mentioned to him as something of a cautionary tale.

[8] He says that he thought his employer would change their mind after one or two or three weeks’ time. He says that when he received the letter terminating his employment, even though he understood what it said and meant, he “took it lightly”, similar to when he had in the past received formal written warnings. He said it was only when he went to the store to buy something – a day or so before lodging his application on 21 June 2021 that he realised he had been replaced and was not going to get his job back.

[9] Secondly, Mr Malek says that he was suffering from a serious medical condition which made it difficult for him to perform even daily routine activities. Mr Malek provided a medical certificate that stated that Mr Malek was suffering from a medical condition and for the period 22 May to 5 June 2021 would be unable to attend his usual occupation. Mr Malek also provided a letter signed by Dr Tariq addressed “To Whom it may Concern” dated 23 May 2021. The letter stated he has been suffering severe allergy and rhinitis, and that “it will be appreciated if he rests and takes break for a couple of weeks, that will significantly improve his physical and mental health”.

[10] Mr Malek stated that he had low vitamin D levels which meant he was not recovering from his chest congestion, fever, cold, hay fever and allergies. Mr Malek provided various test results, including vitamin D levels. He was also concerned that his medical condition came about because of substances he says he had been exposed to at work, and he feared he would get cancer unless he treated his medical issue. Mr Malek said that is why he focused on his health rather than making an unfair dismissal application.

[11] I am not satisfied that any of these matters are exceptional circumstances. Whilst I accept that Mr Malek may have been hoping that his employer would change their mind and ask him to return to work, there was no real basis for Mr Malek to have held this hope, and certainly not for anything more than a few days. The letter of termination from the company was unequivocal and unambiguous. Further, Ms Hyrsikos for the Respondent confirmed that the Applicant had called her shortly after the dismissal, on 1 June 2021. During that call Ms Hyrsikos sought confirmation from Mr Malek that he had received the letter of termination and final payment and wished him all the best. She said that the telephone conversation was not aggressive in tone or subject matter, and that she wished the Applicant all the best. Mr Malek could well, in this conversation, or subsequently, have mentioned his hope that the dismissal had taken place in a moment of anger, and that there would be a change of mind and requested this, but he did not do so.

[12] In any event, Mr Malek could have lodged his application and still retained hope that Velvet Paints would re-employ him.

[13] Mr Malek has provided limited evidence of his medical condition which, at its highest, might be said to explain why his application was not lodged by 5 June 2021. However, Mr Malek had until 15 June 2021 to make his application within time. Mr Malek has provided no evidence that establishes that he was unable to lodge his application. He made his application online on 21 June, having initially attempted to lodge the application at his home but in light of temporary internet problems at home, went to a friend’s house and lodged it online. He has not provided a persuasive explanation nor evidence for the period between 15 June 2021 and when his application was lodged on 21 June 2021. Mr Malek said that he had to take his pregnant wife to hospital on 16 and 17 June 2021, and that these check-ups took all day. These are two days, and do not explain why he was unable to lodge his application. Mr Malek has indicated that he did not appreciate that he needed to provide medical evidence for the period after 5 June 2021. However, the directions issued to the parties were very clear and I do not accept that Mr Malek has not had a reasonable opportunity to provide all material that he seeks to rely on to support an extension of time being granted.

[14] In short, I am not satisfied that Mr Malek has provided an acceptable explanation for the delay and that is a matter that weighs against granting an extension of time.

Whether the person first became aware of the dismissal after it had taken effect 

[15] Mr Malek became aware of his dismissal when he received the letter terminating his employment on 26 May 2021, via express post. Mr Malek acknowledged that he made a mistake in his application where it refers to 18 May. That Mr Malek became aware of his dismissal one day after it took effect is not a substantial consideration in all the circumstances.

Any action taken by the person to dispute the dismissal

[16] Mr Malek did not take any action to dispute his dismissal until 21 June 2021 when he lodged his application with the Commission and is a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay)

[17] In the circumstances I consider this to be a neutral consideration, there being no evidence of any significant prejudice if Mr Malek was to be allowed additional time to bring his claim. I treat this as a neutral consideration.

Merits of the application

[18] The dismissal appears to have been founded upon Mr Malek’s absence from work and Velvet Paints’ conclusion that he had abandoned his employment. Velvet Paints was not required to, and did not, file substantial material supporting their dismissal of Mr Malek. It is not possible to make an assessment of the merits of Mr Malek’s application, and this factor is a neutral consideration.

Fairness as between the person and other persons in a similar position 

[19] Mr Malek says his situation is similar to that in another case where an employee was granted an extension of time to bring an unfair dismissal application: Ovendon v Fortezza Pty Ltd (2010) FWA 3863. In that case, the Commissioner was satisfied by the medical evidence provided that the applicant was “in no fit condition to deal with the matter”. However, that case was quite different to Mr Malek’s circumstances. Mr Malek’s medical certificate provides no detail as to his capacity to make an application, and in any event only certifies that Mr Malek was unable to attend his usual occupation until 5 June 2021 – leaving some 10 days left for Mr Malek to lodge his application within the time limit.

[20] In this case, this is a neutral consideration.

Conclusion

[21] On balance, I am not satisfied that there are exceptional circumstances in this case.

[22] As discussed above, I can only allow additional time for Mr Malek to make his application if there are exceptional circumstances. As there are none, no additional time can be allowed. This means that Mr Malek is not entitled to apply for an unfair dismissal remedy.

[23] The application is dismissed. An order to that effect will be issued separately.

COMMISSIONER

Appearances:

M Malek, Applicant.
D Hrysikos for the Respondent.

Hearing details:

2021.
Melbourne (by video)
July 19.

Printed by authority of the Commonwealth Government Printer

<PR731813>

 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13].

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].