Muhammad v Labour Solutions Australia Pty Ltd

[2016] FWC 2388

[2016] FWC 2388

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Umar Muhammad
v
Labour Solutions Australia Pty Ltd
(U2015/13952)
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 15 APRIL 2016

Application for relief from unfair dismissal Application for relief from unfair dismissal –

extension of time granted.

[1]        This decision arises from an application for an extension of time for lodgement of an

application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the

Act).

[2]        The relationship between Mr Muhammad and Labour Solutions Australia Pty Ltd

(Labour Solutions) ended on 28 August 2015. Mr Muhammad lodged his application at the

Fair Work Commission (the Commission) on 30 October 2015. This application ought to have

been filed by 18 September 2015 to be within the time limit prescribed by the Act. His

application was therefore lodged 41 days outside the statutory time limit.

[3]        When determining this application I had before me the Application for Unfair

Dismissal lodged by the applicant. In paragraph 1.4 of the application Mr Muhammad

provided the following matters for the consideration of the Commission when deciding to

accept his application out of time:

“1. I was not given a written notification about my dismissal

2.          I am new to Australia, did not have understanding of Australian law related to

employment

3.          I was looking for a lawyer to give me some advice

4.          Language barrier as I was not able to express myself in English to some (sic)

who could assist me in this matter.”

[2016] FWC 2388

[4]        I wrote to Mr Muhammad on 3 November 2015 outlining the matters I was required

by the Act to consider and asked him to provide a statement addressing those matters within

14 days. I granted him an additional week as he needed legal advice to help present

submissions.

[5]        I listed the application for hearing an extension of time for lodgement on 1 March

2016 at Brisbane. At the hearing Mr Muhammad was represented by Mr J. Farren, of counsel,

instructed by Ms B. Burton of Legal Aid Queensland. Labour Solutions was represented by

Ms M. Munro of McCullough Robertson Lawyers.

[6]        Mr Muhammad gave evidence and was cross-examined.

[7]        I allowed Mr Muhammad’s application for an extension of time for lodgement and

issued an Order granting his application on 7 April 2016.

[8]        The relevant legislative framework for the exercise of the Fair Work Commission’s

discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy

...

(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.

[9]        The meaning of “exceptional circumstances” was considered in Nulty v Blue Star

Group Pty Ltd [2011] FWAFB 975 where the Full Bench said:

[2016] FWC 2388

“[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:

[2016] FWC 2388

‘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 everyday 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

[2016] FWC 2388

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.”

[Endnotes not reproduced]

[10] For exceptional circumstances to arise, as contemplated by s394 of the Act, it is not

necessary that the applicant for that extension of time be overtaken by a catastrophic event.

Reasons for delay in the category of extreme events are not necessary to meet the test. All of

the factors outlined in s.394 (3) must be considered and weighed when deciding whether or

not exceptional circumstances, circumstances sufficient to support an exception, exist.

Background

[11] A decision to extend the time for lodgement of an application lodged pursuant to s.394

of the Act is a discretionary decision. The Act provides criteria to be considered when

exercising that discretion. The individual circumstances of each applicant considered against

the criteria must be taken into account.

[12]      Although well educated, Mr Muhammad is an Ethiopian refugee and his English is

limited, both written and oral. Mr Muhammad is a native Oromo speaker. I am satisfied that

when attempting to lodge his application his experience was a confusing, complex and

distressing ordeal. I have set out below a truncated version of his experience which I

considered when exercising my discretion:

	Mr Muhammad turned to the Multicultural Development Association (MDA) 10 days
after his dismissal.
	MDA referred him on to seek legal advice at the Queensland Public Interest Law
Clearing House Refugee Civil Law Clinic (Refugee Civil Law Clinic) where he met
with two solicitors on 7 September 2015.
	From that meeting Mr Muhammad gained the impression that he was about to receive
legal representation for his case. He was not made aware of time being of the essence
to his unfair dismissal application. I am satisfied that this failure amounted to
representational error by those who took instructions from Mr Muhammad.

[2016] FWC 2388

	The Refugee Civil Law Clinic referred him to Corrs Chambers Westgarth (Corrs) who
agreed to act for him pro-bono.
	On the 15 or 16 September 2015 Mr Muhammad was telephoned by a solicitor from
Corrs who instructed him to obtain a Separation Certificate from Labour Solutions. He
was not advised of the 21 day time limit for lodgement although that time limit
expired on 18 September 2015.
	Mr Muhammad proceeded as advised to focus his attention on gaining the Separation
Certificate.
	Approximately 33 days after his termination of employment Mr Muhammad received
a letter from the Queensland Public Interest Law Clearing House Refugee Civil Law
Clinic stating that it could not act on his behalf. Mr Muhammad is mostly illiterate. A
copy of that letter was also sent to Sandra from the MDA by electronic mail with the
addition of a covering email advising of the statutory time limits for lodgement. Mr
Muhammad contacted Sandra in the week commencing 5 October 2015. His evidence
was that he was not informed of the time limit. Mr Muhammad then went back to the
MDA. The MDA made an appointment for him in the first available vacancy at the
Caxton Legal Centre.
	Mr Muhammad met with a solicitor at the Caxton Legal Centre on 28 October 2015. It
was on this occasion that he was first made aware of the time limit for lodgement.
	Mr Muhammad lodged his F2 application on 30 October 2015 with the help of a staff
member from the MDA. He was then 41 days outside the time limit.

[13] I considered the various criteria to which my attention is directed by s.394 (3) of the

Act.

reason for the delay-s.394(3)(a)

[14]      The reasons Mr Muhammad provided for delay in lodgement were:

	ignorance of the law;
	language difficulties and,
	representational error.

[2016] FWC 2388

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

s.394(3)(b)

[15]      There was some dispute concerning the exact date of termination of employment but

Mr Muhammad accepted that his employment ended on 28 August 2015.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[16]      Mr Muhammad disputed his dismissal directly with Labour Solutions and by lodging

this application.

prejudice to the employer-s.394(3)(d)

[17]      I am satisfied that there is no prejudice to the respondent in granting the extension of

time beyond that which all respondents experience in having to defend an unfair dismissal

application.

the merits of the application-s.394(3)(e)

[18]      I am not satisfied that the application is without merit. If accepted, the applicant’s

allegations would constitute egregious breaches of workplace rights and/or systematic

discrimination, coupled with significant procedural fairness issues. The respondent denies any

breach of workplace rights or discrimination. These matters cannot be determined without

evidence.

fairness as between Mr Muhammad and other persons in a similar position-S.394(3)(f)

[19]      I am not satisfied that there is any issue of fairness between Mr Muhammad and any

other person.

Conclusion

[20] I have had regard to the fact that the applicant’s first, and almost only, language is

Oromo. This is a rare language in Australia. It is not one of the languages for which there is a
[2016] FWC 2388

translation on the Fair Work Commission’s website. There is only one qualified interpreter

available in Brisbane and the Commission had difficulty obtaining a date when that interpreter

was available. It was more difficult for Mr Muhammad to obtain information about his

employment rights (for example by accessing the Commission’s website) than it is for

employees who speak English or languages for which there are translations available, both

more generally, and on the website.

[21]      I accept the evidence of Mr Muhammad in all respects. In particular, I accepted his

evidence that no advice was given to him regarding the statutory time limit until it was

provided by the Caxton Legal Centre.

[22]      I am satisfied that the applicant also failed to lodge his application in time because of

significant representational error. A number of volunteer organisations and individuals sought

to assist Mr Muhammad. However, all of them failed to provide the most important piece of

advice i.e. to lodge in time. When Mr Muhammad first sought legal advice, he was well

within the statutory limitation date. If he had been given adequate legal advice at first instance

I am satisfied that he would have filed his application within time. He was never advised that

time was of the essence and was referred from person to person, and organisation to

organisation, none of whom advised him regarding the limitations on time for lodgement. I

am satisfied that Mr Muhammad actively pursued a legal remedy. His difficulties arose from

his particular circumstances and the failures on the part of those who sought to help him.

[2016] FWC 2388

[23]      I have given particular attention to Mr Muhammad’s social, language and legal

difficulties in the exercise of my discretion and, having considered all of the matters to which

my attention is directed by the Act. I was satisfied that there were exceptional circumstances

which would warrant my granting an exception to the statutory time limit and on that basis I

accepted Mr Muhammad’s application for an extension of time.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. Farren of Counsel and Ms B. Burton, Legal Aid Queensland for the applicant.

Ms M. Munro, McCullough Robertson Lawyers for the respondent.

Hearing details:

Brisbane.

2016,

1 March.

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