Mustafa Hodzic v Bing Lee Electronic Pty Ltd T/A Bing Lee

[2015] FWC 1278

[2015] FWC 1278

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mustafa Hodzic
v
Bing Lee Electronic Pty Ltd T/A Bing Lee
(U2015/2475)

DEPUTY PRESIDENT SAMS SYDNEY, 26 FEBRUARY 2015

Application for relief from unfair dismissal - application lodged ‘out of time’- consideration of ‘exceptional circumstances’ - awareness of rights - serious misconduct - theft - criminal charges- duty to give warning - standard of proof - ‘exceptional circumstances’ not made out - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Mustafa Hodzic (the ‘applicant’) was dismissed from his employment with Bing Lee Electronic Pty Ltd T/A Bing Lee (the ‘respondent’) on 24 October 2014 for serious and wilful misconduct. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 21 January 2015. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. His application was therefore lodged at least 67 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal and various documents attached to the application. The Commission wrote to the applicant on 23 January 2015 outlining the matters I am required to consider under s 394(3) of the Act, and asking him to provide a statement addressing these matters within 14 days. The applicant provided a statement via email, of one page. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 5 February 2015. These are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission said:

‘[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 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 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

CONSIDERATION

Reason for the delay (s 394(3)(a))

[6] The applicant’s response to the letter sent by the Commission on 23 January 2015 primarily addressed the merits of his unfair dismissal case. However, the applicant asserted that he was unaware of the 21 day time limit in which to lodge his unfair dismissal application. The applicant’s reasons are extracted below:

‘Dear Deputy President

I respond to your letter dated 23 January 2015 as follows:

1. I confirm that I was unaware of the 21 days time limit before 18 January 2015 and as soon as I became aware of it I lodged the application on 21 January 2015;

2. I had sent emails to my ex employer on 21 October 2014, 7 December 2014 and 11 January 2015 drawing their attention why I feel aggrieved, determined to dispute the termination and inviting them to contact me to resolve our dispute. My emails and attempts to resolve the dispute directly with Bing Lee have been ignored by them;

3. Bing Lee terminated my contract but never advised me of my rights and the 21 days period requirement;

4. No warnings were provided, I became aware of the dismissal when I received the termination letter. I was told they would wait for the conclusion of the police investigation, the police refused to charge me but the ex employer terminated my employment acting as a 'judge and jury';

5. The ex employer is in the possession of the CCTV footage which they believed was incriminating me but the police disagreed. There was nothing on the footage which could reasonably lead to the conclusion that I stole the wallet. I also believe some statements were provided by employees to Bing Lee/Police, the employer has been in the contact with Police on a regular basis but ave (sic) decided to dismiss me in spite (sic) of lack of any cogent evidence supporting the allegation of theft. I reject this accusation and believe I was sacked due to another ulterior motive;

6. Accordingly, this incident has been fully investigated by the employer and police so they would not be disadvantaged if my application was approved. In my view it might be cynical from them to argue this point where they have decided not to inform me of the unfair dismissal law requirements when my employment contract was terminated;

7. If the application was not approved, my rights would be distinguished and the employer would be encouraged to continue with this dismisSal practice, not to inform the aggrieved employees of their rights and obligations arising out of unfair dismissal rights and get away with it. It is in public interest that ordinary Australian citizens believe that relevant institutions are prepared and ready to rule whether this practice is in accordance with applicable laws. if the application was approved,  I would be given an opportunity to prove my rights have been violated and the employer would be still given the opportunity to present their case. The employer is not facing an automatic defeat if this application for the extension is approved which will be an outcome for me if the application is rejected.

Yours Faithfully

Mustafa Hodzic’

[7] I am not persuaded that the reason given by the applicant constitutes an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. The applicants’ lack of awareness as to the statutory timeframe in which to lodge his unfair dismissal is clearly not an ‘exceptional circumstance’ within the meaning of the Act: see Nulty at [14]. Furthermore, there is no legal obligation upon an employer to inform an employee, following that employees’ termination, of their legal rights under the Act.

[8] In any event, the Commission’s website provides extensive information and guidance as to both workplace rights and the process of filing an unfair dismissal application. Furthermore, the applicant has not provided any reason as to why he could not seek advice from a representative (legal or otherwise) and/or allow that representative to lodge the application on his behalf. Accordingly, I am unable to identify any sound reason for the applicant’s delay in filing his unfair dismissal application.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[9] The unfair dismissal application, lodged by the applicant, acknowledges that he was dismissed on 24 October 2014 and was aware that his dismissal took effect immediately from that date. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[10] In his email to the Commission dated 28 January 2015, the applicant indicated that he attempted to dispute his dismissal on a number of occasions by contacting the respondent via email. He stated that these attempts were ignored by the respondent. I also observe that the applicant indicated that he was, ‘determined to dispute the termination’. I find it curious, given the applicant’s resolve in disputing his dismissal and the respondent’s refusal to engage with him in any way, that he did not initiate further and definitive action prior to lodging his application with this Commission on 21 January 2015. A period of inaction of 88 days is significant. An assessment of this criterion weighs against the grant of an extension of time.

Prejudice to the employer (s 394(3)(d))

[11] Given that the application was lodged 67 days outside of the statutory time limit, I determine that there is a reasonable degree of prejudice to the employer, if an extension of time was granted. That prejudice is further exacerbated when combined with the usual prejudice of costs and time expended in defending the claim. This factor weighs against the granting of an extension of time.

The merits of the application (s 394(3)(e))

[12] It is important to note that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, particularly involving unseen CCTV footage, will only ever be on a prima facie basis. The applicant stated he was unfairly dismissed after his employment was terminated for alleged serious misconduct. It would appear that the applicant was dismissed from his employment after the respondent came to view that the allegation of theft had been made out. The applicant wholly rejected the allegation of theft. The applicant complained that he was not provided with a warning. It must be stressed that in the circumstances of alleged serious misconduct, an employer is not required to provide a warning before dismissing an employee. Nevertheless, an employer is required to seek an explanation from the accused employee and to consider that explanation. It is not clear to me whether this had occurred.

[13] Furthermore, the applicant argued that he was not charged by Police and that there was a ‘lack of cogent evidence supporting the allegation of theft’. The difference in the standard of proof between criminal proceedings and civil proceedings in this Commission are significant. While it is unclear why the Police did not pursue the criminal charge, it is feasible that any criminal charges brought against the applicant may not meet the higher test of ‘beyond reasonable doubt’. However, that does not preclude the Commission finding that, on the ‘balance of probability’ (subject to the Briginshaw test), the applicant had engaged in theft. A prima facie assessment of the applicant’s material would suggest that his prospects of success are negligible.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[14] The applicant did not specifically address this criterion. His dismissal was a conventional summary dismissal based on allegations of serious misconduct. This is a neutral factor in this case.

CONCLUSION

[15] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The delay in filing is significant. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 5 February 2015.

DEPUTY PRESIDENT

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