Mr Salman Ahmed v Wilson Security

[2020] FWC 4117

[2020] FWC 4117

FAIR WORK COMMISSION

DECISION

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

Mr Salman Ahmed
v
Wilson Security
(U2020/8583)

DEPUTY PRESIDENT CROSS SYDNEY, 5 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 22 June 2020, Mr Salman Ahmed (“the Applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant claimed he was employed, by Wilson Security Pty Ltd (“the Respondent”). The Applicant commenced his employment with the Respondent on 21 May 2018. The Applicant resigned from his employment on 14 February 2019, and that resignation took effect on that date.

[2] Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the resignation took effect, an application for a remedy should have been lodged by 8 March 2019. The application was therefore lodged outside of the time prescribed and was lodged over one year and three months after the last day on which such an application could have been made.

[3] On 6 July, Directions were issued to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his application (“the Application”) would be determined (“the Directions”).

[4] In the hearing of the Application, the Applicant relied upon his Form F2 Unfair Dismissal Application, the first page of a medical report from a Dr McNamara dated 11 April 2019, a letter from Mehdat Metry of MM Psychological Services to Dr Assad Malek regarding the Applicant, and a reply email with annexures. The Respondent relied upon a brief Outline of Submission (the “Respondent’s Submission”), and a copy of the Applicant’s resignation letter.

[5] The matter was heard on 3 August 2020.

Relevant Facts

[6] The relevant facts of the matter as disclosed by the materials filed are:

(a) The Applicant was employed by the Respondent from 21 May 2018 to 14 February 2019. The Applicant resigned verbally on 14 February 2019, and at the request of the Respondent confirmed that resignation in writing. The email of resignation was as follows:

Hi Christine,

Thanks for your email

As Discussed could you please accept my resign from Wilson Security

also I would like to thank you very much for almost one year working with a great Company Wilson Security Thank you again for understanding

kind regards

Salman AHMED

ID NO 43979

(b) The Applicant states that he resigned because he was on medication and stressed at that time.

(c) The first page of a medical report from a Dr McNamara dated 11 April 2019, noted that the Applicant suffered from stress, and that at the time of interview he was working as an uber driver.

(d) On 27 August 2019, the Respondent invited the Applicant to attend an interview for another position. That interview was cancelled before it occurred.

(e) The letter from Mehdat Metry of MM Psychological Services to a Dr Assad Malek dated 24 October 2019, regarding the Applicant stated that the Applicant was suffering mixed anxiety and depression

(f) By email dated 27 July 2020, to the Commission, the Applicant responded to the brief submission of the Respondent. Apart from the two annexures to that email, the totality of the reply was as follows:

“Dear Madam, Sir ,

To respond to the email from Mr Agnes Toth Human Resources manager , Please see attached  

1-  Caution Notice from( NSW police Force ) this time I was looking for assist from Human Resources manager but unfortunately they informed me that we don’t have HR ,if you need assist talk to your supervisor

2- 27th of Aug I applying to come back to work I was really looking for work to support my self so I received email from the company for interviews but unfortunately I reserved phone call before the interview from the company informed me that It’s CXL & I can’t work again in the company. Thank you very much.”

(g) The Applicant worked as an Uber driver from May 2019 to date, though in the hearing of the matter he stated he did not work full time.

Submissions

[7] The Applicant relied upon the contents of his answer to question 1.5 of his Form F2 Unfair Dismissal Application regarding why he was late in filing his application. Therein he explained that it was not until he received an email from “Seek Career Advice” that explained how to make an unfair dismissal application to the Commission that he remembered his story and “believe it wasn’t for genuine reason to make resign from my job”.

[8] The totality of the Respondent’s submission was as follows:

“I write in relation to the above matter and to provide Wilson Security’s (the “Company”)’s submission.

Please note that the Company has not received an outline of submission from the Applicant, other than a copy of their Unfair Dismissal Application and a medical certificate, which had no connection to the Applicant’s employment with the Company or their departure. Therefore, in the absence of sufficient information from the Applicant, the Company is not able to respond in accordance with the instructions received from the Commission.

The Company objects to the Applicant’s Unfair Dismissal application and requests that it be striked (sic.) out based on the following grounds:

a) the Applicant is significantly out of time (1.5 years), which is considered unreasonable;

b) the Applicant has not provided a valid reason or any evidence to support his late application; and

c) the Applicant was not dismissed by the Company, instead he resigned on 14 February 2020, first verbally, then in writing (please see resignation letter attached).”

Consideration

[9] Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:

“(2)  The application must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (3).”

[10] As the Application was lodged outside of the 21 day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:

“(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.”

[11] It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[12] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[13] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWC 479 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[14] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]

“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, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[15] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[16] The Applicant essentially relies upon stress and depression to explain his delay. While he has presented some medical evidence, it falls well short of establishing a medical condition that has precluded the Applicant for the period of the delay from pursuing his rights. Stress and mental illness alone are insufficient of themselves to establish exceptional circumstances under the Act 1.

[17] I further note that the fact that the Applicant has worked as an Uber driver from May 2019 to date, whether full time or part time, would seem to clearly indicate that the Applicant was not so incapacitated as to be unable to agitate his claim.

[18] Insofar as the Applicant relies upon the undated email from “Seek Career Advice”, that submission would seem to be suggesting some ignorance of the law for a period. On the evidence as it stands, that period cannot be identified, but I note that ignorance of the law, in particular the 21 day limitation period, is not an acceptable reason for delay.

[19] I find that there was no acceptable explanation for any part of the Applicant’s delay in filing the Form F2. Accordingly, this factor weighs in the Respondent’s favour.

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

[20] This is not a relevant factor in this matter.

(c) Action taken by the person to dispute the dismissal

[21] The Applicant did not challenge the alleged dismissal in any way, and he characterised it as a resignation. Nonetheless, the Respondent made no submission regarding this consideration being accorded any weight. Accordingly, I consider that this is a neutral factor.

(d) Prejudice to the employer

[22] The Respondent made the submission in the hearing that the relevant events are “not fresh in the memory” of the Line Manager. After such a significant period of time I have no difficulty accepting that submission, and find that this factor weighs in the Respondent’s favour.

(e) Merits of application

[23] This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.

[24] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[25] There are a number of facts in this matter, however, that are not contested. In particular, that the Applicant resigned. I consider that the Applicant will have difficulty in establishing that his dismissal was harsh, unjust or unreasonable. In these circumstances, the question of the merits of the application weighs slightly in the Respondent’s favour.

(f) Fairness between the person and other persons in a similar position

[26] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[27] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight were acceptable reason for delay and prejudice to the employer, and with further slight apportionment of weight regarding merits of the application. All factors weighed in the Respondent’s favour.

[28] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721590>

 1   Susan Rose v BMD Constructions Pty Ltd [2011]FWA 673; Matthew Simari v Australian Aged Care Group Pty Ltd[2020] FWC 403.