Ms Atefeh Heydari-Torshizi v B 4 Kids Pty Ltd T/A B 4 Kids

[2010] FWA 1536

[2010] FWA 1536

FAIR WORK AUSTRALIA

DECISION

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

Ms Atefeh Heydari-Torshizi
v
B 4 Kids Pty Ltd T/A B 4 Kids
(U2009/9973)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 26 FEBRUARY 2010

Termination of employment – extension of time.

[1] Ms Atefeh Heydari-Torshizi (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the FW Act”) on 7 December 2009. The Applicant sought an unfair dismissal remedy following the termination of her employment by B4Kids Pty Ltd (“the Respondent”) on 17 November 2009.

[2] The Respondent has raised two objections to Fair Work Australia (“FWA”) further dealing with the application. The first of these (“the first objection”) is that the Applicant’s application was made 6 days after the 14 day period within which s.394(2)(a) of the FW Act stipulates an application must be made.

[3] It therefore falls to FWA to determine whether it should allow the application within a further period (other than the 14 day period). The FW Act relevantly reads in these regards as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

[…]

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

[4] The second objection (“the second objection”) to FWA dealing with the application further arises in relation to whether the Applicant had served the minimum period of employment for purposes of s.383 of the FW Act, and within the meaning of s.384 of the FW Act.

[5] The hearing in relation to these objections was conducted in Brisbane on 19 February 2010.

THE FIRST OBJECTION

[6] The Applicant was informed of the first objection and provided the statutory excerpt and a copy of the Respondent’s submissions in relation to the same. The Applicant’s own evidence-in-chief was obtained at the time of the hearing. That evidence can be summarised as follows:

• The Applicant is 55 years of age has lived and worked in Australia for 20 years;



• English is her second language, but she is a competent English speaker, except when placed under stress;



• The Applicant has a qualification from Tehran University and was a Mathematics teacher, and has also completed a degree level qualification through James Cook University 1;



• The Applicant is a competent user of email and admits to using the internet for web searches 2;



• The Applicant did not know about Fair Work Australia or its role in relation to unfair dismissal remedies, although younger people may have that knowledge 3;



• The date of notification of the termination and the date the termination took effect was 17 November 2009 (notwithstanding the termination letter, which was read to the Applicant on 17 November 2009, was dated 13 November 2009);



• Some two days after her employment had been terminated the Applicant was advised in a social context to take some action to obtain relief through the Townsville Community Legal Service Inc, or through Fair Work Australia;



• Some seven days later the Applicant was interviewed, it appears, by a volunteer lawyer at the Townsville Community Legal Service Inc.; 4



• The reason why no action was taken for nine days (after the termination) was that the Applicant was shocked and upset by the decision to terminate her employment 5;



• The Applicant attended a medical practitioner for an unspecified reason 6 on 20 November 2010 and was provided with a medical certificate for that day only (though the Applicant appeared not to be employed at that time);



• The Applicant wrote the Respondent on 20 November 2009 about two matters and these matters did not concern the circumstances of her dismissal or challenge her dismissal 7;



• Upon being advised by the Townsville Community Legal Service Inc, the Applicant attended what appears to be a State Government office on either Monday 30 November 2009 or Tuesday 1 December 2009;



• The Applicant attended the State Government offices on either 30 November 2009 or 1 December 2009, where she was directed to the Fair Work Ombudsman; and



• The Applicant attended the Fair Work Ombudsman on 7 December 2009, where she was informed she had to act quickly and an application for an unfair dismissal remedy was facilitated by the Fair Work Ombudsman;



• The reason why the Applicant waited one week before contacting the Fair Work Ombudsman was that she was still in shock from the dismissal. 8

The reason for the delay

[7] The Applicant reasons for delay in lodging her application are that she was in shock from having her employment terminated and she was unaware of the role of FWA in relation to a remedy. The Applicant was inactive, as it were, because of these reasons for some 16 days on her own evidence.

[8] These reasons do not assist me in finding that there were exceptional circumstances attending the late application. The extent of the apparent shock was not made out in any medical sense. In any event, the Applicant’s state of mind and degree of composure was not a hindrance to attending three service providers (the Townsville Community Legal Service Inc; the State Department offices and the Fair Work Ombudsman) and write a letter in clear and amenable terms to her former employer (on 20 November 2009).

[9] Further, absence of knowledge of the role of Fair Work Australia does not itself provide exceptional circumstances for a late application. This is particularly so when the Applicant is a competent English speaker and has access to internet and email and is an experienced user thereof. The Applicant’s suggestion that knowledge of Fair Work Australia was some how restricted to young persons (she being 55 years of age) did not assist the Applicant’s case.

[10] Though it was not raised by the Applicant, I have considered, too, that there might be some small measure of delay caused by the Townsville Community Legal Service Inc having directed the Applicant to a State Department, which is not a body that has a role to play in lodging an application under the Federal legislation.

[11] That all said, the Applicant’s evidence was unclear about what she was advised to do by the Townsville Community Legal Service. An inference may be drawn from her evidence that that her discussion on 26 November 2009 concerned an underpayment issue and not an unfair dismissal application. I say this because the Applicant gave evidence that the Townsville Community Legal Service suggested she wait and see if the correct money was paid to her (in which event the Legal Service had stated that she would not have a problem). The Townsville Legal Service had also that the Applicant had addressed her complaint to her employer in her correspondence of 20 November 2009. The two issues in the correspondence of 20 November 2009 concerned a lost watch and an underpayment issue. 9

[12] On the Applicant’s evidence, it may not have been until she approached the Fair Work Ombudsman (after the 14 day period) that she clarified in her own mind to herself and\or others that she was seeking to contest the termination of her employment as opposed to an underpayment issue. 10

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

[13] The Applicant became aware of the dismissal at the time it took effect.

Any action taken by the person to dispute the dismissal

[14] There is no evidence of the Applicant having taken any action to dispute the dismissal apart from what was proffered in the Applicant’s evidence above. The correspondence to her former employer of 20 November 2009 did not agitate the circumstances of the dismissal itself.

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

[15] There is no evidence of any prejudice to the employer being caused by the delay in the late lodgement of the application.

The merits of the application

[16] As is often the case, the merits of the application have not been canvassed in any detail in the course of these proceedings. Consequently, I presume for purposes of these considerations that the Applicant’s case is not without merit.

Fairness as between the person and other persons in a similar position

[17] There was no specific nomination of a person in a similar position as the Applicant such that an issue of fairness might arise for purposes of my considerations. At a general level, however, it might be expected that the Applicant should be treated herself in the same manner as other persons who are terminated and upon termination, notwithstanding their shock and absence of knowledge about the institutional arrangements, are expected not to be dilatory in making their application.

[18] Equally so, I have not been able to identify in the Applicant’s personal circumstances (linguistic barriers, unfamiliarity with public institutions or inherent cultural differences) that may have given rise to exceptional circumstances (in relation to a person in a similar position had the Applicant faced such barriers etc).

CONCLUSION IN RELATION TO FIRST OBJECTION

[19] The evidence led in this matter in relation to s.394(3)(a)-(f) of the FW Act (and wider) does not demonstrate any exceptional circumstances (or anything uncommon or unusual) such that I should allow the application. The application is dismissed, as a consequence.

SECOND OBJECTION

[20] Given my finding above in relation to the first objection, there would appear to me to be no benefit to the parties from exploring the second objection. This is particularly so as I have indicated to the parties that the issue, because it involves a consideration of s.384(2) of the FW Act, amongst other things, and may require further evidence being advanced as to the nature of the Applicant’s casual period of employment with a previous management of the centre.

[21] My conclusion in relation to the first objection does not warrant me burdening the parties further.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms A Heydari-Torshizi on her own behalf

Ms B Weir of Clarke Kann Lawyers for the Respondent

Hearing details:

2010.

Brisbane:

February, 19.

 1   Transcript of Proceedings on 19 February 2010 at PN563-567

 2   Transcript of Proceedings on 19 February 2010 at PN223-231

 3   Transcript of Proceedings on 19 February 2010 at PN187-194 and PN74

 4   Transcript of Proceedings on 19 February 2010 at PN96

 5   Transcript of Proceedings on 19 February 2010 at PN98

 6   Some days after the hearing, the Applicant sent an email to Fair Work Australia and stated that she was being treated for stress two weeks prior to the termination of her employment, owing to interactions with her employer. See also Transcript of Proceedings on 19 February 2010 at PN168 for absences prior to 17 November 2010 for being “sick”.

 7   Transcript of Proceedings on 19 February 2010 at PN374

 8   Transcript of Proceedings on 19 February 2010 at PN132, 182-188 and 201

 9   Transcript of Proceedings on 19 February 2010 at PN96 and 174

 10   Transcript of Proceedings on 19 February 2010 at PN174

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