Ms Ann Karam Guirguis v D & G Enterprises NSW Pty Ltd
[2024] FWC 639
•11 MARCH 2024
| [2024] FWC 639 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Ann Karam Guirguis
v
D & G Enterprises NSW Pty Ltd
(C2023/6764)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 11 MARCH 2024 |
Application to deal with contraventions involving dismissal
Ms Ann Karam Guirguis made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Ms Guirguis’ allegations that she has been dismissed from her employment with D & G Enterprises NSW Pty Ltd (the Respondent) in contravention of Part 3-1 of the FW Act.
Section 366(1) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application has been made out of time. The Respondent has also objected to the application on the grounds that Ms Guirguis was not dismissed under s.386 because she was not an employee.
Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1]
In summary, I have found that Ms Guirguis’ employment ended on 11 September 2023. The application should have been made on 2 October 2023 to comply with s.366(1) of the FW Act. The application was therefore made 30 days outside of the 21-day limit.
I have found that the circumstances in which the application was made are not exceptional, according to the factors in s. 366(2) of the FW Act, and so I have not granted an extension of time to file the application. The application is dismissed.
Directions and hearing
The matter was listed for directions on 5 December 2023. Directions were made for the filing and serving of evidence and submissions.
Ms Guirguis filed witness statements and submissions on 11 December 2023. The Respondent filed witness statements and submissions on 19 December 2023.
The matter was listed for hearing by video on 20 December 2023. At the hearing, Ms Guirguis represented herself and the Respondent was represented by Mr Gian Mutukisna, Director.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 1 November 2023.
When did the dismissal take effect?
The parties provided conflicting evidence about the date that the dismissal took effect. The material provided by the parties shows that the Respondent sent an email to Ms Guirguis on 11 September 2023 in which the Respondent relevantly stated: ‘At this stage we unfortunately will not be proceeding with a permanent employment and wish you all the best with your future endeavours.’ On the basis of this evidence, I find that the dismissal took effect on 11 September 2023.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As I found above, the dismissal took effect on 11 September 2023. The final day of the 21 day period was therefore 2 October 2023 and ended at midnight on that day. The application was made on 1 November 2023. The application was made 30 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 2 October 2023. The delay is the period commencing immediately after that time until 1 November 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]
In the application and the material filed, Ms Guirguis did not provide clear reasons for the delay in filing in application, During the hearing, I asked Ms Guirguis to provide reasons for the delay. Ms Guirguis said that this was the first time she has ever been terminated and she was unfamiliar with the process for challenging the termination. Ms Guirguis said she felt she needed to take action quickly between mid-September and October but that she was ‘misled’. Ms Guirguis did not say who misled her.
Ms Guirguis provided evidence that following the dismissal, she contacted the Fair Work Ombudsman on 11, 12 and 22 September 2023. The application and material filed by Ms Guirguis shows that on 11 September 2023 the Fair Work Ombudsman sent Ms Guirguis information about protections at work, workplace discrimination, phone numbers for Safework NSW and a community legal centre and on 12 September 2023, the Fair Work Ombudsman sent Ms Guirguis information about protections at work, bullying in the workplace, the Workplace Advice Service and the phone number for Safe Work NSW.
During the hearing, Ms Guirguis explained that the Fair Work Ombudsman suggested that Ms Guirguis contact a lawyer and she did so in about the third week of September 2023. Ms Guirguis lodged a workers compensation claim on about 10 October 2023. The workers compensation insurer referred her to a program called ‘Leap Forward’ which took her 6 weeks to complete. She was also referred to a psychologist and psychiatrist. The Job Network was also involved.
My understanding of Ms Guirguis’ evidence is that she is not claiming that she was unaware of the 21-day time limit. Rather Ms Guirguis appears to be submitting that she became busy attending to all of the activities associated with dealing with her dismissal including the workers compensation process and related appointments and that this led to a delay in Ms Guirguis lodging the application.
In my view, Ms Guirguis has not provided a satisfactory reason for the delay. Although Ms Guirguis may have been initially unfamiliar with the process for challenging the dismissal the evidence shows that Ms Guirguis was very proactive in seeking advice and information. On the day of the dismissal Ms Guirguis obtained information from the Fair Work Ombudsman specifically in relation to protections at work, which included the general protections provisions of the FW Act. She received this information again the following day then received legal advice approximately a week later. It is reasonable to expect that Ms Guirguis would have lodged an application soon after receiving this advice but did not do so and has not provided an explanation in this regard.
I accept Ms Guirguis’ evidence that she was busy with all of the activities associated with dealing with her dismissal including the workers compensation process and related appointments however the evidence shows that Ms Guirguis did not lodge a workers compensation claim until October 2023. The workers compensation claim therefore does not explain why Ms Guirguis delayed lodging the claim.
In the circumstances I am not satisfied that the reasons for the delay advanced by Ms Guirguis weigh in favour of a finding that there were exceptional circumstances.
What action was taken by Ms Guirguis to dispute the dismissal?
The evidence establishes that Ms Guirguis sent emails to the Respondent on 11 September 2023 and 1 November 2023 disputing her dismissal.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time is granted because of the time and resources taken to respond to this application and to also deal with the associated workers compensation application.
In my view these issues would have arisen if the application was filed within time and are not caused specifically because there was a delay in filing the application.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
What are the merits of the application?
The Respondent operates a pre-school and claims that Ms Guirguis was engaged on 22 August 2023 for a one week trial for prospective employment in a traineeship position. On 30 August 2023 Ms Guirguis made a disclosure in relation to a child protection matter which resulted in the Respondent deciding not to offer her a permanent role.
Ms Guirguis said that she has lodged the application because she needs to clear her name and resume her traineeship.
In the application, Ms Guirguis indicated at paragraph 3.2 that the Respondent had contravened s.351 which deals with discrimination and s.352 which deals with temporary absence from work. However, Ms Guirguis did not specify the attribute she relies upon as set out in s.351(1). Further, there is no evidence from either party that Ms Guirguis was temporarily absent from work and that this is the reason for the termination. Ms Guirguis has therefore not clearly identified the basis upon which she alleges the Respondent has breached the general protections provisions of the FW Act. In these circumstances and based upon the material before me, Ms Guirguis appears to have limited prospects of success in relation to the application. This matter weighs against a finding that there were exceptional circumstances.
Fairness as between Ms Guirguis and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reason for the delay; and
(b) Ms Guirguis taking action to dispute the dismissal; and
(c) no issue of prejudice to the employer being identified; and
(d) the merits of the application; and
(e) no issue of fairness arising as between Ms Guirguis and other persons in a similar position.
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 nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.[8]
The lack of prejudice to the Respondent and Ms Guirguis taking action to dispute the dismissal are potentially matters which favour an extension of time being granted if I find that there are exceptional circumstances. The fact that there is no issue of fairness arising as between Ms Guirguis and other persons in a similar position is a neutral consideration. However, all of these matters are significantly outweighed by Ms Guirguis failing to provide a reasonable explanation for the delay and my view that Ms Guirguis appears to have limited prospects of success in relation to the application. There two matters weigh against a finding that there were exceptional circumstances and that an extension of time should be granted.
Having regard to all of the matters provided in s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Ms Guirguis’ application for the Commission to deal with a dismissal dispute is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Ms A. Guirguis for the Applicant.
Mr G. Mutukisna for the Respondent.
Hearing details:
2023
December 20
Sydney
[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[2022] FWCFB 234, [15].
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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