Mrs Marya Samimi v ARB Corporation Ltd t/a ARB 4x4 Accessories

[2013] FWC 6392

[2013] FWC 6392

FAIR WORK COMMISSION

DECISION

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

Mrs Marya Samimi
v
ARB Corporation Ltd t/a ARB 4x4 Accessories
(U2013/1376)

DEPUTY PRESIDENT ASBURY BRISBANE, 2 SEPTEMBER 2013

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

BACKGROUND

[1] Mrs Marya Samimi applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by ARB Corporation Ltd trading as ARB 4x4 Accessories. Mrs Samimi’s dismissal took effect on 5 April 2013 and the application was made on 30 April 2013, four days outside the time allowed in s.394(2) of the Act.

[2] The application was listed for Directions/Conference and Directions were issued requiring the parties to file and serve outlines of submissions, witness statements and any documentary material in relation to the extension of time application. Both parties provided outlines of submissions. A witness statement in support of the extension of time application was made by Mrs Samimi.

[3] The parties were requested to advise the Commission on receipt of that material, whether they wished to cross-examine any person who had provided a witness statement. No advice was received and the matter is determined on the basis of material on the file.

LEGISLATION AND ISSUES FOR DETERMINATION

[4] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as FWA allows under s.394(3). That sub-section provides as follows:

(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

[5] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[6] Even when exceptional circumstances are established, a discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2

CONSIDERATION

Reasons for the delay

[7] The reasons given by Mrs Samimi for the delay are that she:

(a) was not given documentation by her employer setting out the reason for her dismissal and was unsure of what occurred, because she was told that her services were no longer required;
(b) received a separation certificate on 15 May which was dated 13 May, after filing her unfair dismissal application which did not set out reasons for her dismissal;
(c) was caring for her husband who suffers from a disability and was attending a court case for her husband.

[8] Mrs Samimi said that the circumstance of having to look after her husband and attend a court case affected her and caused anxiety and stress. A statement was provided from Mrs Samimi’s treating GP Doctor Hilary McVie, to the effect that Mrs Samimi’s husband attended a court case on 11 and 12 April 2013 and that Mrs Samimi and her husband were concerned about the court case. Doctor McVie also states that Mrs Samimi reported that: “during this time she forgot to do the paperwork that she needed to for Fair Work Australia.”

[9] In relation to the merits of her case, Mrs Samimi states in her application for an unfair dismissal remedy that she was dismissed half way through a shift, and had no warnings or meetings with respect to her working ability during the 18 months of her employment.

[10] ARB submits that the reasons provided by Mrs Samimi for failing to make the application within the required time are not exceptional. No detail is provided about Mrs Samimi’s obligations to care for her husband and it can be inferred that this was a situation that existed before and after the period in which the application was required to be made. The letter from Doctor McVie indicates that the court case took place on 11 and 12 April 2013, and this still allowed two full weeks for the application to be made. Notwithstanding these matters Mrs Samimi was able to make an application four days late, and the reasons advanced do not explain her failure to make the application within the time allowed.

[11] It is also submitted that Mrs Samimi understood that she was dismissed on 5 April 2013, and the fact that she did not receive written reasons or other documentation is not relevant to her understanding about the date of her dismissal.

[12] In relation to merit, ARB submits that Mrs Samimi was formally counselled on 28 February 2013 that her performance was not acceptable and needed to be improved or her employment would be terminated. Mrs Samimi had also filled in time keeping records, and left the workplace before the time she had recorded. Mrs Samimi had been warned about this matter and advised that this was her last chance.

Do the reasons for delay in filing the application constitute exceptional circumstances?

[13] I do not accept the reasons for the delay in making the application provided by Ms Samimi constitute exceptional circumstances. Mrs Samimi had 21 days from the date of the dismissal to make the application. The circumstances relied on by Mrs Samimi to explain the delay, do not cover the entire period. It is unfortunate that Mrs Samimi’s husband is disabled, and I do not doubt that this is a difficult matter for her to deal with. However, I also accept that it is reasonable to infer that this is not a circumstance that arose during the period in which the application was required to be made.

[14] Further, I am of the view that the court case provides an explanation for part of the delay but the failure of Mrs Samimi to make the application in the period after the court case was not explained. I am unable to accept that the fact that Mrs Samimi did not receive written reasons for her dismissal or a separation certificate, is an acceptable explanation for failing to make an unfair dismissal application in the required time. The fact that reasons are not provided for a dismissal is a ground upon which it might be asserted that the dismissal was unfair. It is not a reason to delay making an unfair dismissal application. Failure of an employer to provide a separation certificate is also not a reason to explain delay or an exceptional circumstance.

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

[15] The fact that Mrs Samimi did not receive written reasons for her dismissal or a separation certificate, is not a basis for finding that she was not aware of her dismissal when it took effect. Mrs Samimi states in her application that the dismissal took effect on 5 April 2013 and there is no suggestion in the application or in Mrs Samimi’s witness statement that she did not understand that this was the case.

Any action taken by Mrs Samimi to dispute the dismissal

[16] There is no evidence that Mrs Samimi took any action to dispute her dismissal or to place ARB on notice that she intended to dispute it, before making her application for an unfair dismissal remedy.

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

[17] There is no evidence of prejudice to ARB, other than the requirement to defend the application if time is extended.

The merits of the application

[18] I am unable to determine that Mrs Samimi’s application is without merit, although there is an indication in the submission made by ARB that there are grounds upon which the application could be defended.

Fairness as between Mrs Samimi and persons in a similar position

[19] There is no evidence that there are any matters particular to this case relevant to this consideration. However, there are a number of cases where matters of the kind raised by Mrs Samimi have been considered and found not to be exceptional circumstances. 3

CONCLUSION

[20] I am not satisfied that the reasons given by Mrs Samimi for the failure to make her application within the required time constitute exceptional circumstances. This is not a case where the discretion to extend time is triggered. Accordingly Mrs Samimi’s application is dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Final written submissions:

16 July 2013.

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

 3   See McKenzie v Kartaway Miniskips [FWC 544]; Reeve v Ramsay Health Care [FWA 5349]; Sibosada v Rumarra Aboriginal Corporation [FWC 2640]; and Wemyss v Mission Aust Employment Service [FWA 1798].

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