Mr Neset Icbudak v Charter Security Protective Services Pty Ltd T/A Charter Security

[2014] FWC 6523

[2014] FWC 6523

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mr Neset Icbudak
v
Charter Security Protective Services Pty Ltd T/A Charter Security
(C2014/5841)

COMMISSIONER GREGORY MELBOURNE, 23 OCTOBER 2014

Application for extension of time to lodge application to deal with contraventions involving dismissal.

Introduction

[1] Mr Neset Icbudak was dismissed by Charter Security Protective Services Pty Ltd T/A Charter Security (“Charter Security”) on 19 May 2014. He had been employed by the Company since it took over the security contract at the Melbourne Market on 1 February 2014. However, he had worked at the site with the previous contractor for more than 8 years.

[2] When Charter Security took over the contract Mr Icbudak, together with a number of other employees, was offered ongoing employment, commencing with a 6 month probationary period. Charter Security submits Mr Icbudak was dismissed prior to the end of this probationary period because of issues to do with his work performance. However, Mr Icbudak submits he was dismissed because of certain issues he raised with his Supervisor about what was happening at the site.

[3] On 4 June 2014 Mr Icbudak lodged an unfair dismissal application with the Fair Work Commission (“the Commission”). It was dealt with in a conciliation conference on 8 July, but was unable to be resolved. It was then set down for hearing on 25 August, and Mr Icbudak was required to file submissions and evidence by 15 August. However, on 11 August he discontinued the application, based on legal advice he received.

[4] He now wants to pursue an application under s.365 of the Act because, in his submission, he has been singled out and discriminated against by Charter Security as a result of raising the issues with his Supervisor about various practices at the site. 1

[5] However, his application was lodged with the Fair Work Commission (“the Commission”) on 11 August, 84 days after he was dismissed and 63 days after the 21 day period provided for in s.366(1) of the Act.

[6] Section 366(2) of the Act provides a discretion to the Commission to extend the time for making application if it “is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) The merits of the application; and

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

[7] Mr Icbudak appeared on his own behalf. Mr C. Delaney from the Australian Security Industry Association appeared on behalf of Charter Security.

The Issue to be Determined

[8] Are there “exceptional circumstances,” taking into account the matters contained in s.366(2) of the Act, to warrant the Commission exercising its discretion to extend the time for Mr Icbudak to make application?

The Evidence and Submissions

[9] Mr Icbudak did not provide a submission or witness statements in accordance with the directions issued. However, he did provide a statement at the hearing in support of his request for an extension of time, accompanied by what can be described as four character references from former work colleagues and previous employers.

[10] The statement indicates that in the week prior to his termination he complained to his Supervisor about unlicensed guards working on the market site, and the fact that inactive market users were being allowed to enter the market. 2 He said he was then called into a performance review with his Supervisor, Mr Paul Delmo (“Mr Delmo”). He had worked with Mr Delmo at the site over an extended period of time.3

[11] Mr Icbudak said a number of performance issues were raised with him in that discussion, although he had not previously been warned or spoken to about any of these issues. 4 He was then told that he was going to be dismissed. His statement continued to indicate he believes the decision to dismiss him was made because of the issues he had raised about what was occurring at the site, and not because of his work performance.5 Mr Icbudak accordingly believes he has been discriminated against, and it is this discrimination that forms the basis of his s.365 application.

[12] In terms of the reasons for the delay in making application, Mr Icbudak indicated that he sought advice from various law firms, and was finally able to get some pro bono legal assistance. 6 However, this occurred after he had made his unfair dismissal application. The advice indicated he was unlikely to be successful in continuing to pursue that application because of the fact he was engaged at the time on a 6 month probationary period.7 It was apparently suggested that he discontinue that application and lodge a general protections application instead.8

[13] However, Charter Security submits Mr Icbudak’s dismissal was simply due to poor performance during the probationary period, and was not related to the issues he claimed to have raisedwith his Supervisor. 9 It provided evidence from Mr Delmo and from Mr Shane Cox, the Operations Supervisor, in support of these submissions.

[14] It also submits there is nothing that points to the existence of “exceptional circumstances.” It continues to submit it has already expended considerable time and effort in responding to the previous unfair dismissal application. This has involved the conciliation conference and the preparation that followed for the hearing that then did not eventuate because Mr Icbudak discontinued his application. 10 It submits his decision to now proceed with a general protections application is not an “exceptional circumstance” that warrants the Commission extending time to make application.

[15] Charter Security also made reference to the other matters in s.366 that the Commission is required to take account of. It acknowledges, firstly, that Mr Icbudak has taken action to dispute the dismissal, initially by making an unfair dismissal application, and now by pursuing the current application 11. However, it submits the fact he has made two applications in relation to the same circumstances should not be considered a factor that weighs in his favour.

[16] It next submits it will suffer significant prejudice if an extension of time is granted, given the time and effort that has already gone into responding to the unfair dismissal application. 12 It also submits the current application totally lacks merit, and it is not substantiated or supported by any evidence.13 However, it submits its evidence does support the submissions about the performance issues that were the reason for Mr Icbudak’s dismissal.14 It also submits that there was another employee who was also dismissed, in similar circumstances, prior to the end of his probationary period.15

Consideration

[17] Mr Icbudak is clearly unhappy about the circumstances to do with his termination from his job as a Security Officer with Charter Security at the Melbourne Market. However, he appears to have responded to his dismissal in what might be described as a haphazard way. He initially lodged an unfair dismissal application and pursued this application until two weeks before it was set down to be determined by way of arbitration.

[18] It then appears that after making various attempts to obtain legal advice, he finally obtained advice which indicated the unfair dismissal application was unlikely to be successful, because he was employed on probation at the time. He then proceeded to discontinue that application, and lodged an application instead under s.365. However, by this time the application was filed more than two months after the 21 day period provided for in s.366 of the Act. He now seeks to have additional time in which to make application.

[19] As indicated already s.366 of the Act sets out various matters that the Commission is required to take into account in determining an application of this kind. A number of decisions of the Commission have also considered what is required to find that “exceptional circumstances” exist to justify an extension of time in which to make application. For example, the Full Bench decision in Nulty v Blue Star Group 16(“Nulty”), which was also handed down in the context of a general protections application, gave particular consideration to the meaning of the expression “exceptional circumstances.” It came to the following conclusion:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 17

[20] The decision makes clear that to find “exceptional circumstances” exist requires something out of the ordinary or unusual, and such circumstances might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.366(2) that I must take account of.

(a) the reason for the delay

[21] In summary, the reason for the delay is due to the fact that Mr Icbudak initially made an unfair dismissal application, but then obtained legal advice which suggested that this application was unlikely to be successful. Apparently, this advice was not obtained until around three months after his dismissal, and after he had made various attempts to obtain advice.

[22] After receiving this advice he discontinued the unfair dismissal application and proceeded to file an application under s.365. Charter Security submits, in response, that there is nothing in these circumstances to warrant an exercise of the Commission’s discretion to extend time in which to make application.

[23] This view is supported by previous decisions of the Commission, including the decision in Nulty which, firstly, makes clear that ignorance of the statutory time limits is not an exceptional circumstance. The decision also makes clear that in establishing a timeframe in which to make application the Parliament can be presumed to have expected that an employee, who has been dismissed, will seek out information “on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 18

[24] I also note the decision of a Full Bench of Fair Work Australia in Dr Bing Du v University of Ballarat 19 when it concluded:

“[31] In respect of Doctor Du’s reason for the delay in making his unfair dismissal remedy application, we consider that it is not out of the ordinary course, unusual, special or uncommon for employees whose employment has ceased to not be aware of the law and to be unable to pay for advice or afford legal costs. Moreover, free advice is available from a number of sources, including the FWA website, about the grounds for an unfair dismissal remedy application and about making such applications to FWA by completing the appropriate form and paying the filing fee or obtaining a waiver of the filing fee.” 20

[25] In the present matter the delay appears to have been caused by the fact that Mr Icbudak did not obtain appropriate advice in a timely manner before proceeding to make his unfair dismissal application. It was only when that advice was finally obtained, more than three months after his dismissal, that he decided to “change tack” and lodged the present application.

(b) any action taken by the person to dispute the dismissal

[26] It is clear that Mr Icbudak is unhappy with the circumstances surrounding his dismissal, and has endeavoured to take action against Charter Security in response to that decision.

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

[27] I am satisfied that this is an issue of some significance in the present circumstances. Charter Security has already been involved in considerable time and effort in dealing with the unfair dismissal application made by Mr Icbudak. This has involved participation in a conciliation conference, and the subsequent preparation of submissions and witness evidence for a hearing, after the conference was unsuccessful in resolving the matter. It is obviously now being required to get involved again in responding to the present application and, at this point, the application for an extension of time to be granted in which to make application.

(d) the merits of the application

[28] It is clear that the respective merits of the decision to terminate Mr Icbudak’s employment are keenly contested. Mr Icbudak submits that he has been discriminated against because of issues he raised with his Supervisor about certain “goings on” in the workplace. He submits that he was dismissed within a week of raising these issues. However, he did not provide detailed submissions or witness evidence in support of this submission. On the other hand Charter Security rejects his submissions and submits he was dismissed because of issues to do with his work performance during a time in which he was still employed on probation. It also points to the fact another employee was dismissed at the same time in similar circumstances.

[29] I am unable to form a clear view about the respective merits of the matter on the basis of the submissions and evidence now before the Commission. However, I also note that the relevance of the issue of “merit,” when determining an application for an extension of time, has been considered by a Full Bench of the former Australian Industrial Relations Commission in the matter of Kyvelos v Champion Socks Pty Ltd 21(“Kyvelos”) when dealing with similar legislative provisions to those now contained in the Fair Work Act. The Full Bench stated:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE (7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 22

The Full Bench continued:

“It should be emphasised that in considering the merits the Commission not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE (8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 23

[30] As indicated, I have not formed a concluded view about the respective merits of the matter based on the limited submissions and evidence before the Commission at this point. However, the decision in Kyvelos makes clear it is not necessary to do so at this point.

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

[31] Charter Security submits Mr Icbudak has not been singled out and points to the fact another employee was dismissed at the same time in similar circumstances. Mr Icbudak also took issue with the circumstances surrounding the termination of that employee.

Conclusion

[32] In coming to a decision in this matter I have had regard to each of the matters in s.366(2) of the Act that I am required to take account of. As indicated, I have also had regard to the principles established in decisions, such as Nulty, in terms of what is required to find that “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which to make application.

[33] In coming to a decision in this matter I have had particular regard to the reasons relied upon by Mr Icbudak for the delay in making the present application. They have been referred to already and are not restated now. However, in summary, they concern his lack of knowledge and understanding about what remedies might be available to him, following his termination by Charter Security, and his failure to pursue those options in a timely manner. I have already referred to decisions of this Tribunal, which have concluded that these circumstances do not constitute the “exceptional circumstances” that would warrant an extension of time being granted, but are instead circumstances that are all too often encountered. I am also satisfied that a similar conclusion should be reached in regard to this matter.

[34] This is not intended to be critical of Mr Icbudak. He is obviously concerned about the decision to terminate his employment. He has taken action to try and deal with those concerns. However, his failure to obtain appropriate advice in a timely way has led to the situation where he filed an unfair dismissal application, subsequently discontinued that matter, and now seeks to pursue the present application. For all the reasons indicated I do not consider these circumstances to be exceptional. The application is dismissed.

COMMISSIONER

Appearances:

Mr N. Icbudak appeared on his own behalf.

Mr C. Delaney from the Australian Security Industry Association appeared on behalf of the Respondent.

Hearing details:

2014

Melbourne

17 September

 1   Applicant’s statement dated 21 August 2014 at para 1 to 3.

 2   Ibid.

 3   Ibid at para 1.

 4   Ibid at para 7 to 11.

 5   Ibid at para 13.

 6   Transcript at PN33.

 7   Ibid.

 8   Ibid.

 9   Respondent’s Outline of Submissions dated 12 September 2014.

 10   Ibid at para 22.

 11   Ibid at para 18 to 21.

 12   Ibid at para 22.

 13   Ibid at para 23.

 14   Ibid at para 25.

 15   Ibid at para 23.

 16   [2011] FWAFB 975.

 17   Ibid at para 13 to 14.

 18   Ibid at para 14.

 19   [2011] FWAFB 5225.

 20   Ibid at para 31.

 21   Dec 1294/00 M Print T2421.

 22   Ibid at para 14.

 23   Ibid.

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