Nahom Mebrahtu v Prompt Enterprises Pty Ltd T/A Prompt Plumbing and Electrical

[2018] FWC 952

[2018] FWC 952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nahom Mebrahtu
v
Prompt Enterprises Pty Ltd T/A Prompt Plumbing and Electrical
(C2017/7151)

COMMISSIONER SAUNDERS NEWCASTLE, 12 FEBRUARY 2018

Application to deal with contraventions involving dismissal -application for extension of time refused – application dismissed.

Introduction

[1] On 21 December 2017, Mr Nahom Mebrahtu lodged an application pursuant to s.365 of the Fair Work Act 2009 (Act) alleging that the termination of his employment with Prompt Enterprises Pty Ltd T/A Prompt Plumbing and Electrical (Respondent) on 20 November 2017 was in contravention of the general protections provisions of the Act (Application).

[2] Section 366 of the Act provides that a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s.365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[3] This decision concerns whether I should exercise my discretion to allow Mr Mebrahtu a further period for his Application to be made.

The Hearing

[4] On 25 January 2018, a hearing was conducted by telephone in relation to Mr Mebrahtu’s application for an extension of time.

[5] Mr Mebrahtu gave evidence in support of his application for an extension of time. The Respondent adduced evidence from Mr Mustafa Hasanovic (known as ‘Adam’). Both parties made submissions.

Legislative Scheme

[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following in relation to “exceptional circumstances”:5

“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

Reasons for delay – s.366(2)(a)

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 6 A dismissal can be communicated orally.7

[10] There must be an acceptable reason for the delay in making the general protections application. 8

[11] The applicant must provide a credible reason for the whole of the period that the application was delayed. 9 Ignorance of the 21 day timeframe is not an exceptional circumstance.10

[12] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is an acceptable reason for the delay beyond the 21 day period and ultimately whether that reason constitutes, or contributes to a finding of, exceptional circumstances. 11 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:12

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[13] In his Application, Mr Mebrahtu stated that he was dismissed on 13 November 2017; however, Mr Mebrahtu accepted at the hearing on 25 January 2018 that his dismissal was communicated to him (for the first time) orally on 20 November 2017. It follows that Mr Mebrahtu’s employment with the Respondent came to an end on 20 November 2017.

[14] The 21 day time period for Mr Mebrahtu to make a general protections application pursuant to s.365 of the Act expired on 11 December 2017. 13 Given that Mr Mebrahtu filed his Application on 21 December 2017, the Application was 10 days late.14

[15] In accordance with the principles summarised in paragraphs [9] to [12] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging a general protections application. In this case, that is the period from 11 December 2017 to 21 December 2017. However, the circumstances from the time of the dismissal (20 November 2017) must be considered in order to determine whether there is an acceptable reason for the delay beyond the 21 day period and ultimately whether that reason constitutes, or contributes to a finding of, exceptional circumstances.

[16] In his Application, Mr Mebrahtu explained his delay in lodging his Application as follows:

“There was a delay due to me waiting on a response from the respondent regarding my payment. I was underpaid and have still not been paid for all the time I have worked with the employer… On the 22 November 2017, I spoke to the respondent who offered me no specific reason as to why I was terminated. Since then I have made countless attempts to get into contact with the company for my payment. I have still not received my total payment. I then sent an email on the 11 December 2017 and received a threatening response. But am still awaiting for my payment.”

[17] In Mr Mebrahtu’s Statement of Evidence filed on 24 January 2017 (Statement), he further explained his delay in lodging his Application in the following way:

“The respondent did not take this matter seriously and refused to comply with my requests, which is why my application was late, I kept waiting for responses and the timeframe was dragged out. I was advised by fair work [sic] that once I have all relevant and required information to call back for further assistance”.

[18] Mr Mebrahtu’s Statement is consistent with his Outline of Argument filed on 24 January 2017 (Outline of Argument).

[19] In his Statement and Outline of Argument, Mr Mebrahtu sets out the time line from the time of his dismissal (20 November 2017) as follows:

“My application was delayed because I was waiting for all relevant paperwork from the respondent.

● I was let go on 13 November 2017, by Adam’s partner who dealt with electrical side of the business. As he was unable to provide me with reasons behind my dismissal, I was given no prior warning and as an apprentice was never provided with training group discussions. I asked to speak to Adam who employed me, however Adam was unavailable. After my dismissal I called the office and requested payment slips and documents I had filled out regarding my employment.

● After my dismissal I was demoralized, stressed and in a depressive state. After further researching into my dismissal I realized that the way I was treated was unfair.

● 22 November 2017 after further discussion with family and friends I went into see Adam for further reasons behind dismals [sic].

● 23 November 2017 I called the office and advised the receptionist that I requested for my payslip and all other documentation completed by myself. I also advised I was underpaid

● 6 December 2017 I contacted fair work who provided me with the rates and advised me that as I have not signed anything I should be getting paid as a labourer and that this form of employment seemed like a sham agreement.

● After attempting to contact the office several of times I emailed Adam on the 8 December 2017 who responded with his accountants details. I contacted the accountant who responded with the payslips but not other documentation.

● 11 December 2017 I emailed Adam requesting information advised by fair work [sic]

● 12 December 2017 received a email from respondent advising that he will respond within 7 business day, on the same day received another email from the respondent accusing me of threatening him and his staff (evidence is available to support that allegations are false).

● Add up, the payment dates were incorrect and I was being underpaid. I contacted fairwork and they told me to email him and ask for the right amount.

The respondent did not take this matter seriously and refused to comply with my requests, which is why my application was late, I kept waiting for responses and the timeframe was dragged out. I was advised by fair work that once I have all relevant and required information to call back for further assistance…”

[20] The matters Mr Mebrahtu relies upon for the delay in filing his Application, as summarised in paragraphs [16] to [19], are not, either viewed in isolation or considered together, out of the ordinary course unusual, special or uncommon.

[21] This factor (s.366(2)(a)) weighs against granting Mr Mebrahtu an extension of time.

Any action taken by the person to dispute the dismissal – s.366(2)(b)

[22] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 15

[23] On 22 November 2017, Mr Mebrahtu had a discussion with Mr Hasanovic in which Mr Mebrahtu challenged his dismissal and the reasons for it. Mr Mebrahtu also engaged in email and other communications with the Respondent following his dismissal, together with communications with either the Fair Work Ombudsman or the Commission. It is clear from these post-dismissal communications that Mr Mebrahtu took action to dispute his dismissal. This factor (s.366(2)(b)) weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)

[24] Prejudice to the employer will weigh against granting an extension of time. 16 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.17 The employer must produce evidence to demonstrate prejudice.

[25] A long delay gives rise “to a general presumption of prejudice”. 18 The period of the delay in this matter was 10 days which is a relatively intermediate period of delay.

[26] In its Respondent’s Outline of Argument: Extension of time, the Respondent asserts that an extension of time would put an unfair burden on the Respondent’s business as the matter would require the Respondent’s attention during the “busiest time” of the year.

[27] Noting that the delay was 10 days, I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the Respondent is a neutral consideration.

Merits of the application – s.366(2)(d)

[28] Mr Mebrahtu contends that his employment was terminated because of his race. He also contends that his payment at the rate of an apprentice, without receiving any training or meeting any of the other requirements of an apprenticeship, was a sham. Mr Mebrahtu further contends that the Respondent contravened s.340 of the Act, although he does not identify with any precision the workplace rights he relies upon. In support of his allegations concerning racial discrimination, Mr Mebrahtu contends that at the time he was dismissed, the Respondent called him a “thug” or that he looked like a “thug”.

[29] The Respondent denies these allegations and contends that it dismissed Mr Mebrahtu because he was not a suitable candidate for the Respondent’s business, due to his behaviour and attitude towards its staff members.

[30] The resolution of the contested factual questions concerning the reason(s) for the termination of Mr Mebrahtu’s employment and the basis on which Mr Mebrahtu was employed by the Respondent will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Fairness as between the person and other persons in a like position – s.366(2)(e)

[31] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 19 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.”

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

Conclusion

[33] Haven taken into account the matters referred to in paragraphs [13] to [32] above, I am, on balance, not satisfied that there are exceptional circumstances warranting Mr Mebrahtu being allowed a further period for the Application to be made. Mr Mebrahtu’s circumstances were not out of the ordinary court, unusual, special or uncommon.

[34] Accordingly, the application for an extension of time is refused. The jurisdictional objection to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Mr Mebrahtu represented himself

Mr Hasanovic represented the Respondent

Hearing details:

2018.

Newcastle:

January 25.

<PR600380>

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

 2   Section 366(2) of the Act

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ibid at [13]

 6   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 7   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 9   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 10   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 11   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 12   [2016] FWCFB 349 at [31]

 13   That is, 21 days from 20 November 2017 (not including 20 November 2017) is 11 December 2017.

 14   That is, 21 December 2017 is 10 days after 11 December 2017.

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 16   Ibid

 17   Ibid

 18   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 19   [2016] FWCFB 6963

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