Muhammad Qureshi v KiwiMployment Pty Ltd T/A KM Corporate Security

[2019] FWC 4991

[2019] FWC 4991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Muhammad Qureshi
v
KiwiMployment Pty Ltd T/A KM Corporate Security
(U2019/5177)

COMMISSIONER PLATT ADELAIDE, 23 JULY 2019

Application for an unfair dismissal remedy – extension of time – application dismissed.

[1] Mr Muhammad Ali Qureshi has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with KiwiMployment Pty Ltd T/A KM Corporate Security ( KiwiMployment) which his form F2 Unfair Dismissal Application advised took effect on 29, 30 (sic) January 2019.

[2] Mr Qureshi filed his Unfair Dismissal Application in the Fair Work Commission on 7 May 2019. The application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“….because at the time of the given redundancy, I was not aware about the reality and later-on just a few days ago I got to know the facts and reality of my unfair Dismissal (sic). I searched and then got information about Fair works and now applying with a hope of receiving compensation and fairness (sic).”

[3] On 7 July 2019, KiwiMployment lodged a form F3 Employer Response which indicated that the dismissal occurred on 31 January 2019 and raised a jurisdictional objection on the basis that the application was lodged out of time, and that it was a case of genuine redundancy. This decision only deals with the extension of time issue.

[4] On 28 June 2019, my Associate corresponded with the parties and advised that the extension of time issue would be considered at a telephone Hearing on 11 July 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Mr Qureshi was directed to provide a statement concerning the extension of time and any documents to be relied upon by 5 July 2019. KiwiMployment was invited to file any material in reply by 9 July 2019.

[5] Mr Qureshi did not comply with the Directions and a Non-Compliance Hearing to deal with that issue was conducted at 2:00pm on 8 July 2019. Mr Qureshi did not attend. Mr Brenton Ellis represented KiwiMployment. Mr Ellis foreshadowed an application pursuant to s.399A of the Act and was advised to submit a formal application. At 1:00am on 9 July 2019, Mr Qureshi emailed the Commission complaining that he had less than 4 hours’ notice of the Non-compliance Hearing, that he was not well and stressed and that he would attend the hearing on 11 July 2019. At 9:46am on 9 July 2019 my Associate spoke with Mr Qureshi and explained the information he needed to provide in respect of the extension of time application.

[6] At 10:22am on 9 July 2019, KiwiMployment filed the s.399A application which relied on Mr Qureshi’s failure to submit material or attend the Hearing on 8 July 2019.

[7] At 6:02am on 10 July 2019, Mr Qureshi provided a short email which contained submissions on the extension of time issue.

[8] A Hearing was conducted by way of telephone conference on 11 July 2019. A sound file record of the telephone conference was kept. Mr Qureshi represented himself and Mr Ellis represented KiwiMployment. The Hearing was adjourned for a short period to allow Mr Qureshi an opportunity to email supporting documents to the Commission.

[9] Mr Qureshi’s position is summarised as follows:

•  KiwiMployment is a labour hire provider, and he was placed in a role with Healthcare.

•  On Tuesday 29 January 2019 he was advised that he would be made redundant. This communication was confirmed in an email from Mr Ellis on that day. The email advised that KiwiMployment did not have any roles outside of Healthcare and that his last day of employment would be 12 February 2019.

•  Mr Qureshi responded to this advice by email later on that day, and advised that he was not well and badly stressed because of the “fake complaint and unfair allegation”. He protested that this was another instance of someone trying to penalise him because he spoke the truth.

•  At 9:21am on 30 January 2019, Mr Ellis advised Mr Qureshi that MSS had requested that he did not work in Healthcare and KiwiMployment had to comply with that direction. Mr Ellis advised that his complaint of discrimination and bullying was being investigated. Mr Ellis advised it was unfortunate that they did not have suitable and sustainable work to provide him outside of Healthcare and that redundancy was the only option available.

•  On 30 January 2019 Mr Qureshi attended Doctor Chris Moschou and was provided with a medical certificate which advised he was unfit for work from 30 January to 23 February 2019 due to a medical condition. A copy of the certificate was provided after the conclusion of the Hearing.

•  Mr Ellis acknowledged the medical certificate on 31 January 2019 and advised that KiwiMployment had determined to pay out the notice period and that the employment would cease immediately.

•  Mr Qureshi travelled overseas from 6 February to 22 March 2019 to be with family as he had no support in South Australia.

•  Upon his return, Mr Qureshi sought employment with GMS staffing, and contends he was advised by GMS Human Resources that there was a problem as a result of his profile with KiwiMployment which restricted his capacity to work in “SA health care security”. Mr Qureshi contacted Mr Ellis who is alleged to have advised him that he was made redundant at the direction of MSS. On 16 April 2019, Mr Qureshi contacted Mr Ken Robertson by email. At the Hearing Mr Qureshi contended that Mr Robertson told him that MSS had not banned him from the site.

•  Mr Qureshi then contacted Mr Ellis to complain that he was not banned by MSS. On 18 April 2019, Mr Ellis provided Mr Qureshi with a copy of an email from Mr Robertson dated 31 January 2019 which stated “After further discussion, it has been decided that Muhammad will be banned from Healthcare for the use of his mobile phone…..”

•  Mr Qureshi contends that after he spoke with Mr Robertson on or about 16 April 2019 he first became aware that he had not been banned from the site and his redundancy was a sham.

•  The application was lodged on 7 May 2019.

•  Mr Qureshi states that he was not aware of the 21 day time limit and only read about the law on redundancy after the April 2019 discussion with Mr Robertson.

[10] KiwiMployment did not file any written submissions on the extension of time. At the Hearing, Mr Ellis submitted that Mr Qureshi had been banned from the site as evidenced by the email trail provided to him on 18 April 2019 and that it has not misled him as to the reasons for his dismissal.

[11] At the conclusion of the Hearing I advised the parties that despite Mr Qureshi’s conduct of his application, I was not disposed to grant the Respondent’s s.399A application and dismissed same.

Applicable Law

[12] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

....

(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).

(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.”

[13] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can 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 are seen as exceptional. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

Consideration

[14] I find that the dismissal occurred on 31 January 2019 as advised in the email communication from Mr Ellis of that date.

[15] This unfair dismissal application by Mr Qureshi was made 75 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[16] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[17] Mr Qureshi explains the delay by his initial distress at having been dismissed, his lack of knowledge of the law and his becoming aware of new information on or about 16 April 2019.

[18] It appears that Mr Qureshi was aggrieved by the decision to dismiss him at the time, but did not pursue this objection, possibly as a result of his medical condition. It is common for employees to suffer shock and trauma as a result of dismissal from employment - Rose v BMD Constructions Pty Ltd² - this of itself is not an exceptional circumstance.

[19] Putting Mr Qureshi’s case at its highest, he became aware of the new information obtained from Mr Robertson on 16 April 2019, corresponded with KiwiMployment and was advised of their position on 18 April 2019. This is the point at which Mr Qureshi should have lodged his claim.

[20] Mr Qureshi explains the delay after that time as his lack of knowledge of the law. A lack of awareness of the 21 day statutory time limit is not an exceptional circumstance. 3

[21] Mr Qureshi has not satisfactorily explained the delay from 20 April 2019 (allowing some time to lodge the claim) to 7 May 2019. This factor weights against the finding that there are exceptional circumstances.

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

[22] Mr Qureshi was aware of the dismissal on the day that it occurred.

Any action taken by the person to dispute the dismissal

[23] Mr Qureshi’s email protested against his dismissal at the time that it occurred and on or about 18 April 2019 upon receipt of the “new” information.

[24] This factor weighs in favour of a finding that there are exceptional circumstances.

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

[25] Prejudice to the employer will weigh against granting an extension of time.⁴ However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.⁵ A long delay gives rise “to a general presumption of prejudice”.⁶

[26] There is no submission that the granting of an extension of time represents prejudice to the Respondent, and therefore this is a neutral factor.

The merits of the application

[27] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

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

[28] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd⁷ considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[29] I am not satisfied that the issue of fairness as between Mr Qureshi and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor, it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[30] Having considered and weighed each of the factors under s 394 of the Act, I am not satisfied that Mr Qureshi’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order⁸ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Qureshi the Applicant.

Mr B Ellis on behalf of the Respondent.

Hearing (Conference) details:

2019.

Adelaide:

July 11.

Printed by authority of the Commonwealth Government Printer

<PR710432>

1 [2011] FWAFB 975.

2 [2011] FWA 673.

 3   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14].

4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

5 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

6 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

7  [2016] FWCFB 6963.

8 PR710433.