Ms Armita Zarnegar v Guardian Network T/A Guardian Network Pty Ltd

[2015] FWC 8513

[2015] FWC 8513

FAIR WORK COMMISSION

DECISION

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

Ms Armita Zarnegar
v
Guardian Network T/A Guardian Network Pty Ltd
(U2015/12948)

COMMISSIONER ROE MELBOURNE, 8 DECEMBER 2015

Application for relief from unfair dismissal - extension of time.

[1] Ms Zarnegar says that she was dismissed from her employment with Guardian on either 18 August 2014 or 8 July 2014. She lodged her unfair dismissal application on 17 September 2015.

[2] Ms Zarnegar did not attend the hearing of the extension of time matter on 27 November 2015. She was represented at the hearing by a support person, Ms Asher who spoke on her behalf. Ms Asher said that Ms Zarnegar was in Iran because her father was ill. It is not clear when Ms Zarnegar went to Iran. The notice of hearing was sent on 29 September 2015. Ms Zarnegar requested to participate by telephone in the hearing on 18 November 2015. I rejected that application on 26 November 2015 and provided reasons. We attempted to get Ms Zarnegar on the telephone when she did not appear at the hearing but were unsuccessful.

[3] I decided given the circumstances and the period of delay it would be unfair to require the employer to attend a further hearing and that the matter should proceed to be heard in the absence of the Applicant.

[4] I decided that it was not necessary to cross examine the evidence of Ms Zarnegar as it was possible to determine this matter on the basis that her evidence in respect to the reasons for delay are accepted.

[5] The reasons for the late lodgement of the application given by Ms Zanegar are:

● She was not aware of her rights and it took her some time to get advice that she should approach the Fair Work Commission.
● She has a shoulder injury which limits her capacity to fill in the required forms on the computer.
● She was not aware that she had been dismissed.
● She has only been in Australia a few years and English is her second language.

[6] Given that Ms Zarnegar was not present at the hearing and given that she provided late advice that she was in Iran due to the serious illness of her father, I considered it appropriate to give Ms Zarnegar a final opportunity to provide any further submissions she may wish to make as to why it would be unfair or unjust to determine the matter in the manner I foreshadowed based upon the evidence and submissions provided by both parties. I indicated that I would consider any submission she might make before 8 December 2015 prior to finalising my decision.

[7] Submissions were provided on 7 December 2015. In respect to the reasons for delay Ms Zarnegar raised the following in those written submissions:

● Ms Zarnegar says that she rang Work Safe at least 4 times in 2014. She says that that Work Safe said it was not an issue of bullying but a rostering issue.
● She says she contacted the Fair Work Ombudsman in August 2015 and they said that they could only deal with alleged underpayments.
● It is not suggested that Ms Zarnegar raised any issue concerning dismissal or unfair dismissal with either Work Safe or the Fair Work Ombudsman.
● She submitted her workers compensation claim in March 2015 some 8 months after the injury.
● She only became aware of the role of the Fair Work Commission after speaking to John Faine on ABC radio.
● Ms Zarnegar confirms that there was no contact between her and Guardian or Guardian and her between September 2014 and the making of the unfair dismissal claim in September 2015 apart from a conversation in March 2015. The conversation in March 2015 concerned Ms Zarnegar’s request for an aged care certificate to be provided and she says that her workers compensation claim was also raised.

[8] None of the matters raised alter my conclusion that the matter can be determined without the need to cross examine the evidence of Ms Zarnegar as it is possible to determine this matter on the basis that her evidence in respect to the reasons for delay are accepted.

[9] It is well established that ignorance of workplace rights is not usually a reason for delay which will lead to a finding of exceptional circumstance. It is apparent from the material provided that Ms Zarnegar is educated and competent in the English language. I am satisfied that a shoulder injury might slow the completion of a form on a computer but it would not prevent it from being done or prevent the person from obtaining assistance to complete the form. It certainly does not explain why the form could not be completed within the 21 day period, let alone within a 12 month period.

[10] Either Ms Zarnegar thought that she was dismissed or she didn’t. She can’t have it both ways. If she doesn’t think that she was dismissed then she can’t make an unfair dismissal application. The employer says, and I accept, that Ms Zarnegar was offered work on 18 August 2014, 25 August 2014 and 1 September 2014 but did not attend for work or explain her absence at the time. I am satisfied that Ms Zarnegar was a casual employee and it is not disputed that she has not been offered work since that date. Ms Zarnegar produced medical evidence which I accept that she was not fit for work from 26 August to 28 August inclusive. She has also produced statements from her medical practitioners dated May and August 2015 which suggest that may not be fit to perform her duties.

[11] Ms Zarnegar has produced no evidence of any action by the employer which could constitute a dismissal other than the failure to offer her further work after she failed to attend for three shifts and in circumstances where the evidence suggests that she was not fit for work until 28 August 2014 and where she has not provided information to the employer that she was subsequently fully fit for work.

[12] It is not disputed that the employer told Ms Zarnegar that she needed a clearance from her doctor that she was fully fit for work before she could return to work.

[13] I am therefore satisfied that one of the following applies:

● Either Ms Zarnegar was constructively dismissed prior to 1 September 2014. The constructive dismissal was the refusal of the employer to offer Ms Zarnegar further shifts in circumstances where she did not attend for three shifts and where her medical certificate did not provide that she was fully fit for work. Given that Ms Zarnegar was told by her employer that she would need medical clearance that she was fully fit for work before she would be able to return to work, if the actions of the employer in failing to offer further employment or modified duties constituted constructive dismissal Ms Zarnegar was aware of this situation by late August 2014; Or

● Ms Zarnegar was not dismissed and Ms Zarnegar by failing to attend three shifts and then failing to provide a medical clearance that she was fully fit for work effectively abandoned her employment. It may be argued that it is appropriate for the employer to provide reasonable time for Ms Zarnegar to provide evidence that she was able to perform the inherent requirements of the job prior to concluding that she had abandoned her employment, but after 12 months without any contact (apart from one conversation in March 2015 which did not relate to return to work) the actions of Ms Zarnegar confirmed that the relationship had ended due to abandonment of employment.

[14] In all of the circumstances it is not viable to suggest that the employment relationship remains on foot. Neither party took sufficient action during the last 12 months to make that a reality.

[15] If Ms Zarnegar was dismissed then I am satisfied that there are no reasons for the delay in making the application which support a finding of exceptional circumstances.

[16] Ms Zarnegar says that she became aware of the dismissal on 18 August 2014 at the latest. Even if that is not correct it appears that there has been no contact between Ms Zarnegar and Guardian about the alleged dismissal for at least six months prior to the making of the unfair dismissal application. There was some contact after the unfair dismissal claim was lodged. This is a neutral factor in the circumstances of this case.

[17] Ms Zarnegar took no action of significance to dispute the dismissal, if there was a dismissal, prior to the lodging of the application. Given the period of delay this is a factor which stands against a finding of exceptional circumstances.

[18] The length of the period of the delay is significant enough to mean that there could be some prejudice to the employer. However, there was no evidence or submission of any particular or significant prejudice. This is a neutral factor.

[19] On the material available to me the case appears to have very limited prospects of success. It is unlikely on the material before me that Ms Zarnegar was dismissed at the initiative of the employer. However, I make no definitive finding on this matter given that I have not heard the evidence and other matters may emerge. The merits of the case are a factor which stand against a finding of exceptional circumstances.

[20] There is no issue of fairness between Mr Zarnegar and other persons in a similar position which arises from the circumstances of this case.

[21] Considering all of the factors I am not satisfied that there are exceptional circumstances justifying an extension of time. The application is dismissed.

COMMISSIONER

Appearances:

Ms K Asher appeared for the Applicant.

Ms S Saxby and Ms M Azaris appeared for the Respondent.

Hearing details:

2015

Melbourne

November 27

Final written submissions:

Further written submission by the Applicant
December 7

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