Olgierd Cherfi v Tabcorp Assets Pty Ltd T/A Tabcorp

[2016] FWC 6726

[2016] FWC 6726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Olgierd Cherfi
v
Tabcorp Assets Pty Ltd T/A Tabcorp
(U2016/2263)

COMMISSIONER CRIBB MELBOURNE, 20 SEPTEMBER 2016

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] Mr Olgierd Cherfi (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by Tabcorp Assets Pty Ltd t/a Tabcorp (the Respondent, Tabcorp) on 15 April 2016. The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] The application was lodged outside the statutory time limit, on 13 May 2016, seven days late. There was a hearing of Mr Cherfi’s extension of time application on 17 June 2016 and 20 July 2016. Mr Cherfi was represented by Mr C Agnew, solicitor whilst the Respondent was represented by Ms C Symons, of Counsel. Mr Cherfi gave evidence as did Ms B White, Human Resources Business Partner, Tabcorp and Ms C Davies, Infrastructure and Workplace Manager, Tabcorp.

[3] This decision deals with Mr Cherfi’s extension of time application.

Legislative framework

[4] Section 394 of the Act sets out the requirements for making an application and also the basis on which an extension of time may be granted. Section 394(3) is as follows:

“(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.”

[5] I will deal with each of the factors in turn.

Section 394(3)(a) - reasons for the delay

(a) Evidence

(i) Mr Cherfi

[6] Mr Cherfi gave evidence that:

• He had never been disciplined by any of his previous employers. 1



• When he commenced with Tabcorp, he was provided with a contract. 2



• He telephoned Mr Agnew on 19 April 2016 and Mr Agnew asked him how many employees his employer had. He had replied eight. 3



• During the telephone conversation on 19 April 2016, he did not believe that he was made aware that there was a time limit. 4 He was not aware, as at 6 May 2016, that the time limit for making an unfair dismissal had expired.5



• He became aware of that after his discussion with Mr Agnew on 11 May 2016. 6



• He did not believe that he had mentioned to Mr Agnew the name of his employer during the conversation on 19 April 2016. This conversation was quite ambiguous. He did not get any clear direction except to provide his contract. 7



• Mr Agnew had asked him what his salary was. He had told Mr Agnew that it was roughly $140,000/$145,000 as he really did not know. 8



• Mr Agnew had then requested that he urgently send him a recent payslip and a copy of his contract. 9



• He agreed that he already had a copy of his contract and that he had found his contract in his archives in his garage and had emailed it to Mr Agnew on 20 April 2016. 10



• He confirmed that his contract stated that his salary was $132,420 and that he was not aware of having received any annual incentive. He explained that he had requested his payslips to determine exactly how much he was earning (to see whether he had been paid any incentives). 11 He did not have access to his payslips after his dismissal.12



• He emailed Ms White on 6 May 2016 requesting a copy of his payslips and leave information. In the email he said that he had previously requested this information from Ms Davies. 13



• He confirmed that the email also stated that “at your earliest convenience” and that the information could be emailed or posted. 14 He said that he was being polite and amicable and friendly in his email.15



• In saying that the material could be posted, he did understand that it could take a number of days to arrive. He had given two options so as to be flexible. 16



• He denied that his email showed a lack of urgency. 17



• He had verbally asked Ms Davies, while he was packing up his desk, for a copy of all of his payslips and leave information. 18



• He accepted that the first formal request for his payslips etc. was on 6 May 2016. 19



• On receiving a copy of his payslip on 13 May 2016, he forwarded it to Mr Agnew who advised that he was able to file an unfair dismissal claim and that he should do so immediately. Mr Cherfi instructed Mr Agnew to do so. 20



• At the time of his conversation with Mr Agnew on 19 April 2016, he was on medication and had been since the end of October/early November 2015. 21



• He had seen his medical practitioner, Dr Demian on 24 May 2016 who had provided a medical certificate and given him medication. 22



• He had seen Dr Demian before his dismissal and confirmed that he had suffered mental strain and anxiety prior to his dismissal and also between 15 April 2016 and 13 May 2016. He had also been seeing a psychologist. 23



• The side-effects of the medication were drowsiness, not exactly functioning on all cylinders and basically being unable to/should not be driving a car. He did drive his daughter to and from childcare three days a week. 24



• In addition, he was/is suffering from depression. 25 He is currently on a mental health plan.26



• The first paragraph of Dr Demian’s letter was said to accurately describe the stressors in his life. He agreed that his daughter’s illness took place prior to his dismissal. 27 On the day he made the application, he was definitely not of sound mind.28 He did not recall his brother coming to the house on that day.29



• Between 15 April 2016 and 13 May 2016, a number of events occurred and he was very busy. 30



• His wife had an operation on her spine on 27 May 2016. The operation was not successful and she needs to undergo further procedures. 31 Her medical condition is not resolvable.32



• His wife needs his assistance to care for their daughter. 33 He agreed that he had more time at his disposal after his dismissal compared with prior to his dismissal. This was because he was not working.34



• The reason why it took from 19 April 2016 to 6 May 2016 (when he sent an email to Ms White about his payslips) was because he was the primary carer assisting his wife at home. He was doing follow-up work and chasing up information but his primary concern was his family. 35 He explained that, during that period, his mind was elsewhere (on his wife and child).36



• When employed by Tabcorp, he had a flexible working arrangement which allowed him to come into work a little bit later. This meant that he could prepare breakfast, assist his wife get ready for work and get his daughter dressed and take her to childcare. 37 His daughter remained attending childcare three days a week after his dismissal and so she was at home for two days a week. On the days his daughter went to childcare, for a period of the day, she was not at home with Mr Cherfi.38



• Having taken his daughter to childcare, Mr Cherfi attended to his tax returns and his wife’s private health insurance matters. 39 He had a period of five - six hours a day whilst his daughter was in childcare.40



• He dealt with his tax returns but did not complete them. He retrieved all of the paperwork from the garage, plonked them on the table, but never did anything with them. He did not complete his tax returns nor any of the other administrative matters. 41



• He also undertook housework duties. In terms of attending to the neglect around the house, he did not spend a great deal of effort on remedying the neglect. 42



• After dropping his daughter off at childcare, he would come home and sleep for the majority of the day, on most days. He had no energy. 43

Meeting on 15 April 2016

Mr Cherfi

[7] It was Mr Cherfi’s evidence that:

• Having been told that he had been dismissed, he said words to the effect that he would be pursuing this further. Ms White had responded by saying that that was his right. 44



• When Ms Davies and Ms White came back into the room, he did not say that he would immediately contact Fair Work and submit an unfair dismissal claim. 45



• Ms White did not respond by saying that he had every right to submit an unfair dismissal claim. 46

(ii) Ms White

[8] Ms White gave evidence that:

• The purpose of the meeting was to inform Mr Cherfi that his employment had been terminated. 47



• Following an adjournment during the meeting, Mr Cherfi had noted to both Ms Davies and herself that he could raise a claim for unfair dismissal. 48



• She explained to Mr Cherfi that there was a representative from MyCoach, Soula, to whom she would like to introduce Mr Cherfi. Mr Cherfi asked if she could stay back for five minutes to have a quick conversation without Ms Davies. She agreed and Ms Davies left the room. 49



• Mr Cherfi then told her that he had already contacted his lawyer and would be making a claim with Fair Work. 50



• She had responded by saying that she understood and that it was his right. Mr Cherfi had replied by saying that the company was making a mistake and that the company should reconsider its course of action. 51



• She had responded by saying that the conversation was unprofessional and that she was not entering into it and that she would go out and introduce him to Soula. 52



• Mr Cherfi had spoken twice about making an unfair dismissal claim. The first time, was in front of herself and Ms Davies. The second time, it was just with her. 53



• It was confirmed that she had received an email from Mr Cherfi on 6 May 2016 requesting copies of his payslips. 54



• As she does not have access to employee payslips, she forwarded the email to corporate payroll, Mr Linton. 55 It was the first email that she had received in relation to payslips.56



• She received the request from Mr Cherfi at 1:10 p.m. on Friday, 6 May 2016 and had responded at 8:39 a.m. on Monday, 9 May 2016. She could not recall why she had not responded to the email until the Monday. 57 She said she would have actioned the email at her earliest convenience.58 She had actioned the request as soon as she saw it come through.59



• Mr Cherfi’s email was not tagged with any urgency. It said “at your earliest convenience” and that is what she did. She did not receive any further emails from Mr Cherfi. 60



• She denied not responding to Mr Cherfi’s email until the Monday because she was aware that Mr Cherfi had a 21 day time limit for filing his application. 61



• It was her understanding that Mr Linton had responded and provided Mr Cherfi with the required information. 62



• She was not aware that Mr Cherfi did not receive his payslips until 13 May 2016. She was not cc’d into the email that Mr Linton sent to Mr Cherfi. 63



• After her email to Mr Linton, she could not recall any discussions with Ms Davies about Mr Cherfi’s request. 64 Only she and Mr Linton knew about Mr Cherfi’s request.65



• She did not recall having a conversation with Ms Davies about the statement in Mr Cherfi’s email that he had previously requested his payslips from Ms Davies with no response. 66



• Employees can access their payslips themselves through Oracle employee self service but access is terminated when employees leave the organisation. 67



• She is not responsible for terminating employee access to Oracle - the employee’s manager is responsible (Ms Davies). 68

(iii) Ms Davies

[9] Ms Davies gave evidence that:

• Towards the end of the meeting, Mr Cherfi said that he would be taking it further. She understood from that/Mr Cherfi said words to the effect that, Mr Cherfi would be taking it to his lawyer and to Fair Work. 69 This was clarified to be that Mr Cherfi had actually said that he would be taking it further but she was unsure of his exact words. To the best of her knowledge, Mr Cherfi had said that he will be pursuing it further.70



• When Mr Cherfi was packing up his desk, he asked if he could access his computer. She had said to Mr Cherfi words to the effect that his password had been closed or disabled and he would not be able to get into the system. 71 Ms White was not present at this time.72



• It was categorically denied that Mr Cherfi requested his payslips and leave slips at that time. 73



• She spoke to security and they had authorised termination of Mr Cherfi’s accounts. 74 She was not aware of what the processes were for terminating accounts. However, she knew that Mr Cherfi’s password was locked because she knew that, as soon as she requested termination, security would do that immediately so that anything in those systems will cease.75



• She agreed that Mr Cherfi could not get access to his payslips once he was locked out of the system. 76 If a former employee requested copies of their payslips, she would contact Human Resources and Payroll and get them for that person.77



• She had a conversation with Ms White about Mr Cherfi after his dismissal. She could not recall the date of the conversation but said it would have been after his dismissal as she thought it came out of the discussions about this proceeding. 78



• Ms White had said that Mr Cherfi had requested payslips and made a comment that she (Ms Davies) had not actioned that request. She said that this was incorrect. 79



• Mr Cherfi had not made any contact with her since his dismissal. 80



• She was aware that some time earlier, Mr Cherfi had back issues but the more recent discussions were around his family. More flexible working arrangements were in place to address those issues. 81



• She thought that Mr Cherfi’s family issues and own health issues probably affected Mr Cherfi’s ability to carry out his work. 82

(b) Submissions

(i) Mr Cherfi

[10] On behalf of Mr Cherfi, it was submitted that, as Mr Cherfi never had a job description, Mr Agnew was unable to look at Mr Cherfi’s prospects or assess them. Mr Cherfi had been unable to provide him with the job description despite his (Mr Agnew’s) request for one. 83 Further, as a professional, given that it was a performance or expectation related dismissal, Mr Agnew would look at the termination letter and the reasons for dismissal compared to what one would expect.84 The payslips were said to be important as the remuneration in Mr Cherfi’s contract was very close to the threshold. Mr Agnew had a professional obligation to ensure that Mr Cherfi did not lodge a frivolous claim. Mr Cherfi was acting on his instructions to obtain his payslips.85

[11] The major reasons for the delay were said to be that Mr Cherfi was in a state of mental distress as a consequence of needing to provide care and support for his wife who was suffering a serious spinal condition. Due to this distress, it was argued that Mr Cherfi was emotionally impaired in making an application. 86 In addition, at the time of his dismissal, Mr Cherfi was the primary carer for his daughter due to his wife’s illness. This meant that the responsibility of caring for his wife and daughter became Mr Cherfi’s primary concern.87

[12] The decision in Rowe v V/Line Pty Ltd 88 (Rowe) was referred to and was stated to be the closest case to this one in relation to the length of the delay and that the applicants in both cases had issues with their personal health (Mr Cherfi also had family health issues). It was argued that Mr Cherfi’s family and personal health issues commenced prior to his dismissal. This was said to lend greater weight to the fact that Mr Cherfi was suffering some form of extreme anxiety or stress that resulted in the application being lodged late.89 In the Rowe decision, the Applicant had also been suffering from mental health issues before he was dismissed, as was the case with Mr Cherfi.90

Mr Cherfi’s health

[13] It was submitted that Mr Cherfi had been suffering family and personal issues prior to his dismissal. 91 These were said to have been aggravated as a consequence of his dismissal. It was stated not to be the normal stress one would have as a result of being dismissed. Rather, it was described as a continuation or aggravation of a pre-existing condition.92 Although Dr Demian’s opinion did not say in clear terms that Mr Cherfi could not make an application, it was stated that the opinion does use the words ‘extreme stress’.93

[14] The Applicant argued that the state of Mr Cherfi’s mental health did not seem to have been contested by Tabcorp. The contest was said to concern Dr Demian’s opinion and the fact that it does not make any reference to Mr Cherfi’s impaired ability to make an application. 94

Family circumstances

[15] The exceptional circumstances were explained to be that Mr Cherfi’s wife was suffering a fairly rare and unique medical condition which does not seem to be resolvable. It was said that, as a spouse, this can weigh heavily on a person, being as it is an unresolvable condition. This situation was stated to be significant but special. 95

[16] In addition, it was recalled that Ms Davies’ evidence was that Mr Cherfi’s personal and family circumstances were affecting Mr Cherfi’s ability to do his work. It was contended that, if Mr Cherfi was unable to carry out his work effectively, prior to his dismissal, post dismissal, he was not capable of pursuing correctly an unfair dismissal application. 96 Mr Cherfi’s evidence was said to have been that he tried to do a number of administrative things but had never completed them.97

[17] With respect to Mr Cherfi’s evidence that his primary concern was his family, it was argued that it was not a case of just looking after his family. This was on the basis that Mr Cherfi’s wife has a serious medical condition which is not resolvable. This was categorised as unique and something that the Commission should take into account. 98

Representative error

[18] Mr Agnew stated that Mr Cherfi had contacted him on 19 April 2016 and that Mr Cherfi had sent him his contract. Therefore, it was contended that Mr Cherfi did take some steps. In addition, Mr Cherfi had tried to make contact with him (Mr Agnew) between 20 April 2016 and 11 May 2016 on a number of occasions. 99 It was said to be reasonable that Mr Cherfi, having telephoned a lawyer with experience in this area, should expect things to be moving along on his behalf.100

[19] Mr Cherfi’s evidence, in relation to starting on his tax returns but not completing them, was said to demonstrate that Mr Cherfi did not have the capacity to follow through on things. It was said that Mr Cherfi was reliant on other people as he did not have that capacity. This was stated to support Dr Demian’s opinion that Mr Cherfi must have been under an extreme level of stress. 101

[20] It was indicated that there is some level of representative error as Mr Agnew did not advise Mr Cherfi, until 11 May 2016 that he had a 21 day time limit. It was stated that Mr Cherfi had quite rightly relied on himself (Mr Agnew) to get things done for him. 102

Mr Cherfi’s contract

[21] It was outlined that Mr Cherfi’s contract clearly stated a base salary of $132,000 but that it also provided for total employment costs of $145,000. The Applicant argued that, added to the complexity was Mr Cherfi’s payslip which had on it, under the heading of salary, the figure of $145,000. It was contended that it was crucial for Mr Agnew to have a look at Mr Cherfi’s payslip despite the payslip adding to the confusion. 103 Even though, on $132,000, Mr Cherfi was below the high income threshold, it was argued that Mr Cherfi was still very close to it together with a lack of clarity in the contract about the performance bonuses.104

[22] With respect to the request for his payslips, it was submitted that Mr Cherfi had requested his payslips on 15 April 2016 as well as on 6 May 2016. The Applicant argued that Ms Davies’ evidence should not be accepted. This was because of Ms Davies’ convenient recollection of what was said at the termination meeting. Ms Davies was said to have changed her view, during her evidence, as to what Mr Cherfi had said at the meeting. As Ms Davies could not recollect the conversation, it was suggested that Mr Cherfi’s evidence needed to be preferred in relation to whether or not he had requested his payslips. 105

[23] The Applicant submitted that it was not in Ms White’s interests to progress the matter quickly. It was stated that Mr Cherfi needed the payslip information to know whether, jurisdictionally, he could make an unfair dismissal application. If Mr Cherfi had lodged his application and then it was found that he was above the high income threshold, Mr Cherfi would be potentially exposed to a costs application. 106

Exceptional circumstances

[24] It was submitted that there are a multitude of factors in this case which make it unusual. One factor alone may not make it unusual. However, it was contended that, if all of those factors are added together, they meet the exceptional circumstances test. 107

(ii) Tabcorp

[25] Tabcorp submitted that regard must be had to the entire period from the date of termination until lodgement is made. In addition, the period of delay (seven days) is subject to close inspection. 108 The observation was made that in this case, the reasons for the delay operate across the entire period rather than something extraordinary happening on day 21.109

[26] It was stated that the Applicant’s argument seems to be that the combination of his wife’s illness and caring responsibilities for his child, together with his physical and emotional impairment, impaired him to the extent that he was unable to lodge an application himself or give instructions to a lawyer to lodge on his behalf. In relation to these reasons, it was submitted that, on examination, each of the factors put forward amount to very little and certainly do not get to the high water mark of exceptional circumstances. 110

Mr Cherfi’s mental health

[27] It was said to be understood that the Applicant’s argument is that Mr Cherfi was incapacitated due to his mental state - to the extent that he could not take steps to make an unfair dismissal application. The Commission was referred to the Full Bench decision in Australian Postal Corporation v Zhang 111 (Zhang). It was stated that this decision sets out the requirements in relation to the production of medical evidence, particularly in relation to the extent of incapacity during the entire period.112

[28] The Respondent argued that this was significant in this case because:

• Mr Cherfi has given varying evidence as to what the impact on him was of his medical condition



• There is a very bare letter from Mr Cherfi’s treating general practitioner. It refers to Mr Cherfi being under extreme stress due to work related stress and difficult family circumstances. Which medication had been prescribed is not specified. 113



• The doctor’s letter is not contemporaneous with the period of the alleged incapacity. 114



• The doctor’s letter does not say anything about what Mr Cherfi is able to do or not do ie. the extent to which any illness attributed to his inability to file an unfair dismissal application. 115



• To make good such a reason for the delay, the Applicant is required to provide compelling medical evidence of incapacity for the entire period ie. the 21 day period and the period of delay. 116



• There are inconsistencies in Mr Cherfi’s evidence regarding what he was able to achieve during the relevant period. On the one hand, Mr Cherfi’s evidence was that he had a very busy schedule.



• Mr Cherfi referred to undertaking tasks such as dealing with incomplete tax returns. It was accepted that Mr Cherfi might not have completed them but Mr Cherfi did take steps in relation to his tax returns, his wife’s health insurance and undertaking work around the property. In addition, it was stated that Mr Cherfi’s evidence was that he also took his daughter to and from childcare three days a week and that he assisted his wife get to work in the morning. 117



• This was said to demonstrate that Mr Cherfi had the capacity to undertake various tasks. 118

[29] On the basis of Mr Cherfi’s evidence and the lack of medical evidence, Tabcorp submitted that this explanation does not constitute an exceptional circumstance. 119

Responsibilities to his wife

[30] The Respondent accepted absolutely that Mr Cherfi’s wife has been, is and continues to be, unwell. 120 However, it was argued that the difficulty for the Respondent is that Mr Cherfi’s wife is in full-time employment which means she has a degree of capacity that allows her to work. It was understood from the Applicant’s submissions that Mr Cherfi had very onerous responsibilities in relation to his wife.121 Tabcorp contended that the responsibilities were not as onerous as one might have initially thought.122

[31] This was on the basis that Mr Cherfi had agreed that he had a period of roughly five hours, three days a week to himself when his daughter was at childcare and his wife was at work. As it was Mr Cherfi’s evidence that he was undertaking other responsibilities during those times, it was argued that Mr Cherfi’s responsibilities towards his wife do not rise to the level of exceptional circumstances. 123

Responsibilities to his daughter

[32] Tabcorp submitted that it was accepted that Mr Cherfi had responsibilities towards his daughter but it was argued that they were more limited than one might have understood. It was noted that Mr Cherfi’s daughter was in childcare three days a week for at least five hours each day. 124 Despite Mr Cherfi’s responsibilities towards his daughter, it was argued that Mr Cherfi had a significant period of time to himself and that he was at liberty to make decisions about how to use that time. It was stated that Mr Cherfi made conscious decisions to use his time in particular ways but that there were opportunities within that time, to progress his application.125

Exceptional circumstances

[33] It was argued that Mr Cherfi did have somebody who was acting on his behalf and the steps he was required to undertake by his lawyer were pretty modest. It was stated that Mr Cherfi was required to send his contract to his lawyer which he did. In relation to the payslips, it was Mr Cherfi’s evidence that he knew that this was an urgent requirement. However, he waited until 6 May 2016 to make a request for copies of his payslips.

[34] Further, it was contended that the language Mr Cherfi used in his email to Ms White conveyed no sense of urgency. In addition, the email gave two options to the company for providing payslips - email or post. It was argued that there should be no criticism of the fact that the Respondent took longer than one would expect to provide the payslips as the email did not convey any sense of urgency. 126

[35] Tabcorp disputed that the payslips were the missing link because the information required (Mr Cherfi’s salary) was set out in the contract. Mr Cherfi’s evidence was recalled to be that he was not aware of having received any incentives. Further, it was argued that the payslips made the position less clear, rather than provide the clarification that was sought. 127

[36] The Respondent noted that Mr Cherfi spoke to his lawyer on 19 April 2016 and was told to obtain his payslips. Mr Cherfi did not request his payslips from Ms White until 6 May 2016. There was said to be no credible reason why there was a delay of almost three weeks before Mr Cherfi emailed Ms White. 128 It was stated that, having made the request of Ms White, there was no follow-up of Ms White by Mr Cherfi. This was stated to be despite Mr Cherfi being aware, from 19 April 2016, that there was a degree of urgency.129

[37] Tabcorp submitted that, when all of the explanations offered are considered, each of the explanations falls away. It was argued that none of the explanations individually provide compelling exceptional circumstances and neither do they when they are added together. 130

[38] In relation to the decision in Rowe, the Respondent distinguished the circumstances of that case from this one. The Rowe case was said to be concerned with the question of mental capacity where a connection was made between Mr Rowe’s mental condition and his capacity to make decisions about an application. The Respondent contended that such a connection was not present in this case. 131

[39] With respect to the Applicant’s submission that a short period of delay is a factor that is to be taken into account, Tabcorp contended that this is not a factor expressly identified in section 394. It could be accepted that it might be a matter that bears on prejudice. However, the Respondent argued that, as a standalone criteria, it is not a matter that needs to be taken into account. The decision in Ozsoy v Monstamac Industries Pty Ltd 132 was referred to in this regard.

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[40] During the hearing, it was clarified that it was common ground that Mr Cherfi was informed on 15 April 2016 that he was dismissed. The issue for the Applicant was that Mr Cherfi had not received written confirmation of his dismissal until 21 April 2016. 133

[41] Therefore, I find that Mr Cherfi was aware of the dismissal at the time that it took effect.

Section 394(3)(c) - any action taken to dispute the dismissal

[42] On the basis of the evidence before me, prior to lodging an unfair dismissal application, Mr Cherfi contacted a lawyer on 19 April 2016. There is no material before me which suggests that Mr Cherfi contacted the Respondent to dispute his dismissal after he had been dismissed. On the evidence, it would seem that, at the time he was advised that he had been dismissed, Mr Cherfi made it clear that he did not agree with Tabcorp’s decision.

Section 394(3)(d) - prejudice to the employer

[43] The Applicant submitted that the Respondent has not suffered any prejudice as a result of the delay. During the period of delay (between 6 and 13 May 2016), the Respondent’s overall position was said to have not changed such that the Respondent suffered any prejudice. 134

[44] It was acknowledged by the Respondent that it might not have suffered any substantial prejudice as a result of the delay. However, it was argued that the absence of prejudice to the employer was an insufficient basis on which to grant an extension of time. 135

[45] Given the length of the delay, I find that the Respondent has not suffered any substantial prejudice as a result of Mr Cherfi’s application being lodged late.

Section 394(3)(e) - merits of the application

[46] During the hearing, it was accepted by the parties that, given the conflict about what happened (two different stories about the one set of events) and that a mini arbitration is not to be conducted, this factor is to be considered a neutral factor. 136

Section 394(3)(f) - fairness as between the person and other persons in a similar position

[47] It was contended by the Applicant that there were no other employees in the same unique position as Mr Cherfi. Therefore, it was argued that there should be no concerns on the part of the Respondent concerning non-equitable treatment, if the extension of time was granted. 137

[48] On the other hand, the Respondent submitted that this criteria was not concerned with the fairness as between Mr Cherfi and other employees within Tabcorp. Rather, it was contended that it was a more general balancing of fairness against other applicants in this jurisdiction i.e. the application of consistent principles. 138 Tabcorp contended that the application should be dismissed as it would be contrary to this criteria if it was not dismissed.139

[49] I have not been persuaded that it would be unfair to other persons if it was determined that an extension of time should be granted.

Section 394(3) - are there exceptional circumstances?

[50] It was submitted on behalf of Mr Cherfi that, when all of the matters were taken into account, it is evident that they are a set of circumstances that are out of the ordinary, unusual and uncommon i.e. exceptional circumstances. 140 The Commission should look at all of the circumstances and not just that, Mr Cherfi, like the rest of us, was doing day-to-day chores regardless of whether one is sick or healthy. The other factors to be taken into account included that Mr Cherfi attempted to progress his claim, relied on an experienced lawyer and tried to obtain a copy of his payslip.141

[51] Tabcorp argued that, having regard to all of the criteria, the application does not meet the test of exceptional circumstances. Further, it was submitted that each of the explanations for the delay, either taken singly or collectively, did not meet the high threshold of exceptional circumstances.

Considerations and conclusions

[52] Under section 394(3) of the Act, the FWC can extend the time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in section 394(3)(a) - (f). Only if the Commission is satisfied that there are exceptional circumstances can the Commission then exercise its discretion to decide to grant an extension of time.

[53] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 142(Nulty) where the Full Bench said:

“[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.” 143

[54] I respectfully adopt the approach by the Full Bench in Nulty in relation to the meaning of exceptional circumstances.

[55] On behalf of Mr Cherfi, it was submitted that the reasons for the delay were that the Applicant was in a state of extreme stress which impaired his ability to file an application and some degree of representative error on the part of Mr Agnew. Mr Cherfi’s distressed mental state was described as the result of his wife suffering a severe spinal condition which was unresolvable. This resulted in Mr Cherfi being primary carer for his daughter and also, he provided care and support for his wife. It was stated that Mr Cherfi had been suffering extreme stress prior to his dismissal due to his family situation and that this had resulted in flexibility being provided by Tabcorp in relation to his work times. Ms Davies’ evidence was said to have corroborated the impact of Mr Cherfi’s family situation on his ability to perform his work. It was argued that, post dismissal, Mr Cherfi was in the same place as he was prior to his dismissal, but that his mental health issues had been exacerbated. This was said to have resulted in an impaired capacity to file an unfair dismissal application.

[56] Tabcorp contended that, either taken singly or collectively, the reasons for the delay proffered by the Applicant did not meet the high test of exceptional circumstances. The Respondent contested the degree to which Mr Cherfi’s caring responsibilities for his daughter and his wife prevented him from filing an application within time. Mr Cherfi’s evidence that he was very busy, following his dismissal, and that he had 5 - 6 hours of free time, three days a week, was highlighted. In addition, Tabcorp argued that Dr Demian’s letter did not state that, as a result of Mr Cherfi’s mental health condition, he had an impaired capacity to make an unfair dismissal application.

[57] I have considered carefully all of the material before me and I find that there are acceptable reasons for the delay. It appears to be common ground that, prior to his dismissal, Mr Cherfi was dealing with a family situation which resulted in Tabcorp providing Mr Cherfi with flexible work arrangements. It was Ms Davies’ evidence that this situation had probably affected Mr Cherfi’s ability to carry out his work. Mr Cherfi’s family situation had resulted in him being the primary carer for his four-year-old daughter. Mr Cherfi’s wife has an unresolvable spinal condition so was unable to fully care for their daughter or for herself. Mr Cherfi’s wife also needed assistance and support from Mr Cherfi.

[58] Mr Cherfi contacted a lawyer, Mr Agnew, on 19 April 2016, and was asked to urgently send him a copy of his contract and his payslip. The purpose of the request was to establish whether or not Mr Cherfi’s salary was above the high income threshold. The evidence is that Mr Cherfi sent Mr Agnew his contract on 20 April 2016.

[59] There is a conflict in the evidence with respect to the issue of whether Mr Cherfi asked his manager, Ms Davies, at the time he was packing up his desk, for a copy of his payslips. Ms Davies categorically denied that Mr Cherfi had requested his payslips at that time. When Mr Cherfi was packing up his desk, it was not disputed by Ms Davies that Mr Cherfi had asked her, words to the effect of, if he could still access the computer system?

[60] In addition, there are different recollections in relation to what Mr Cherfi said, at the end of the dismissal meeting, on the part of Mr Cherfi, Ms Davies and Ms White. However, it does appear to be common ground between all three that, at some stage, Mr Cherfi said words to the effect that he would be pursuing it/taking it further.

[61] Putting both of these elements together, it would seem to be most probable that Mr Cherfi did ask Ms Davies for a copy of his payslips. This is on the basis that Mr Cherfi had said that he would be taking it further at the end of the dismissal meeting and that he had asked Ms Davies if he could still access the computer system when he was packing up his desk. A logical continuation would be therefore, for Mr Cherfi to have asked for a copy of his payslips, having been just told that his access to the computer system (and to his payslips) had been cut off. Further, in the email Mr Cherfi sent to Ms White on 6 May 2016 requesting copies of his payslips, Mr Cherfi specifically stated that he had previously requested them from Ms Davies. 144

[62] Therefore, I find that, when Mr Cherfi emailed Ms White on 6 May 2016, it was Mr Cherfi’s second request to Tabcorp for copies of his payslips. It is accepted that the email was the first formal request ie.it was in writing.

[63] The email that Mr Cherfi sent Ms White, on 6 May 2016, was about two and a half weeks after he had been asked by Mr Agnew to urgently provide his payslips. Mr Cherfi’s explanation for the delay in emailing Ms White was that he was depressed and that his primary concern was his family. It was Mr Cherfi’s evidence that, despite having 5 - 6 hours for three days a week free time (when his wife was at work and his child in childcare), he had generally gone home after dropping his daughter at childcare and gone to sleep. He also gave evidence that he was very busy following his dismissal and that he started administrative tasks (tax returns, his wife’s health insurance) but did not complete them. Mr Cherfi’s evidence in this regard is accepted.

[64] There is no material before the Commission that Mr Cherfi actually completed any of the projects (tasks) that he started. As will be discussed below, Mr Agnew’s urgent request for Mr Cherfi’s payslips had been made to Mr Cherfi in a vacuum. This was because Mr Agnew did not tell Mr Cherfi, at the time he requested Mr Cherfi’s contract and payslips, that there was a legislative time limit, what it was and therefore, the date by which the application must be lodged. It should be noted that during this period, it was Mr Cherfi’s evidence that he had emailed and telephoned Mr Agnew on a number of occasions. So, it is not a case of Mr Cherfi giving instructions to a lawyer and then doing nothing. Rather, it was a lack of responsiveness from the lawyer, for whatever reason. Therefore, during this period, it is accepted that, Mr Cherfi’s primary concern was for his family and his capacity to complete tasks was compromised. The context in which this was happening was one where Mr Cherfi had not been advised of the statutory time limit. However, Mr Cherfi did not just leave his lawyer to move things on. Mr Cherfi made a number of calls/emails to his lawyer over this period.

[65] It was submitted by the Applicant that the payslips were important in relation to ascertaining whether Mr Cherfi had received any incentive payments. This was contested by the Respondent who argued that Mr Cherfi was aware that he had not received any incentive payments. Further, it was contended that all of the relevant information was contained in Mr Cherfi’s contract and that the payslips would have confused, rather than clarified, the situation. It is my view that it was reasonable for Mr Agnew, as Mr Cherfi’s lawyer, to ask his client to send him a copy of his contract and payslips. Both of these documents provide definitive information in relation to questions about remuneration and, although the contract clearly stated Mr Cherfi’s base salary, it did not provide information as to whether any incentive payments had actually been paid to Mr Cherfi.

[66] It is apparent from Mr Cherfi’s evidence that Mr Agnew did not advise him, on 19 April 2016, that there was a 21 day time limit for lodging an unfair dismissal application. In addition, it was Mr Cherfi’s evidence that Mr Agnew did not tell him about the time limit until 11 May 2016. This is five days after the time for properly lodging an application had passed. Therefore, although Mr Cherfi was told by Mr Agnew on 19 April 2016 that he was to urgently provide his contract and payslips, Mr Agnew did not give him the context within which he was requiring the documentation urgently ie. he did not tell his client that his application needed to be filed by 6 May 2016.

[67] As well, it was Mr Cherfi’s evidence that he had rung and emailed Mr Agnew on a number of occasions between 20 April 2016 and 11 May 2016 but had received no response. When Mr Cherfi received his payslips from Tabcorp on 13 May 2016, he forwarded them to Mr Agnew. This seemed to have finally provoked a response from Mr Agnew who advised Mr Cherfi to lodge an application immediately. This was done, on Mr Cherfi’s instructions, by Mr Agnew on 13 May 2016.

[68] In relation to the Respondent’s contention that Mr Cherfi’s email on 6 May 2016 displayed no urgency, it is clear from the emails that Mr Cherfi was not seeking the payslips urgently. The email was a polite one which is consistent with Mr Cherfi’s demeanour in the witness box. Although Mr Cherfi had been told by Mr Agnew to obtain his payslips urgently, Mr Agnew did not specifically tell Mr Cherfi that there was a time limit and that the time limit ran out on 6 May 2016.

[69] The Respondent is correct that this is a case where the relevant issues were present throughout the entirety of the period from 15 April 2016 to 13 May 2016. There was not a singular event which caused the delay. In addition, not only were the issues present throughout the relevant period, they were in existence prior to the dismissal. As well, Mr Cherfi’s family situation was recognised by Tabcorp and Mr Cherfi was provided with flexible work arrangements to assist him.

[70] Taking all of this into account, I find that the reasons for the delay, when taken together, are acceptable and reasonable. It is noted that the failure by Mr Cherfi’s representative to advise Mr Cherfi that there was a time limit, until after the 21 day timeframe had passed, was one of the reasons which contributed to the delay. The other reasons were Mr Cherfi’s mental state and his family situation which meant that he was primary carer for his child and was required to provide care and support to his wife who has a serious unresolvable back condition. None of the reasons is pre-eminent. When taken together, however, they provide an acceptable reason for the delay.

[71] It has already been found, at paragraph [41] above, that Mr Cherfi was aware of the dismissal at the time that it took effect.

[72] As set out in paragraph [42] above, Mr Cherfi, at the time of his dismissal, indicated to Tabcorp that he would be disputing the dismissal. In addition, Mr Cherfi contacted a lawyer to act on his behalf. Mr Cherfi therefore, did take some actions to dispute the dismissal. However, that did not include contact with his employer after his dismissal.

[73] In relation to prejudice to the employer, there does not appear to have been any significant prejudice suffered by the employer as a result of the late lodgement of Mr Cherfi’s application.

[74] As indicated in paragraph [46], the merits of the application are a neutral consideration for the reasons outlined above.

[75] It has been previously found at paragraph [49], that I have not been persuaded that it would be unfair to other persons, if it was determined that an extension of time should be granted.

[76] Having considered all of the matters in section 394(3)(a) - (f), I am satisfied, on balance, that there are exceptional circumstances which justify the granting of an extension of time. This is a matter where a combination of factors led to a situation which, when taken together, can be considered to be “out of the ordinary cause, unusual, special or uncommon”. These factors include Mr Cherfi’s mental state which existed prior to his dismissal and continued on after his dismissal; Mr Cherfi’s family situation which meant that he was primary carer for his daughter and provided support and care for his wife; his wife’s serious and unresolvable medical condition and the professional lapses visited on Mr Cherfi by his lawyer, on whom he should have been able to rely, to take care of his interests in a timely manner. When all of these factors are viewed together, they amount to a situation which meets the definition of ‘exceptional circumstances’ as set out in Nulty.

[77] Accordingly, Mr Cherfi’s application for an extension of time is granted. The date for lodgement of Mr Cherfi’s application is extended to 13 May 2016.

[78] An order 145 to this effect will be issued separately. The application will be referred for conciliation.

Appearances:

C Agnew of Agnew Legal Pty Ltd for the Applicant

C Symons of Counsel for the Respondent

Hearing details:

2016.

Melbourne:

June 17;

July 20.

 1   Transcript PN 88

 2   Ibid PN 89

 3   Ibid PN 105 and 434 and Exhibit A2 at paragraph 26

 4   Ibid PN 161 - 162 and 448

 5   Ibid PN 263

 6   Ibid PN 265 and 449

 7   Ibid PN 438

 8   Ibid PN 107 and 238 and Exhibit A2 at paragraph 26

 9   Ibid PN 108 - 109 and 167 - 168 and ibid at paragraph 26

 10   Ibid PN 207 - 208, 229 - 230 and 440 and ibid at paragraph 29

 11   Ibid PN 241 - 246 and 257

 12   Ibid PN 457

 13   Ibid PN 247 - 252 and 254 and Exhibit A2 at paragraph 7 and Attachment OC13

 14   Ibid PN 253 - 254 and 259

 15   Ibid PN 258

 16   Ibid PN 260

 17   Ibid PN 262

 18   Ibid PN 255

 19   Ibid PN 257

 20   Exhibit A1 at paragraphs 30 - 31

 21   Transcript PN 110 - 113

 22   Ibid PN 114 - 117 and 392 - 393 and Exhibit A2 at paragraph 32 and Attachment OC16

 23   Ibid PN 468 - 472

 24   Ibid PN 120, 122 and 394 - 395

 25   Ibid PN 124

 26   Ibid PN 123

 27   Ibid PN 418 and 420

 28   Ibid PN 125

 29   Ibid PN 126

 30   Ibid PN 129 and 399

 31   Ibid PN 131 - 133

 32   Ibid PN 456

 33   Ibid PN 134

 34   Ibid PN 423

 35   Ibid PN 268 and 426

 36   Ibid PN 270

 37   Ibid PN 274, 279 - 284 and 390 - 391

 38   Ibid PN 275 - 277 and 373

 39   Ibid PN 278 and 465 - 466

 40   Ibid PN 291, 299 - 303, 383 - 389 and 428

 41   Ibid PN 400 - 401, 426 and 462 - 464

 42   Ibid PN 402

 43   Ibid PN 433

 44   Exhibit A2 at paragraph 23

 45   Transcript PN 140

 46   Ibid PN 141

 47   Ibid PN 594 - 596

 48   Ibid PN 694 and 707 - 708

 49   Ibid PN 597 and 679 - 680

 50   Ibid PN 597 and 690 - 693

 51   Ibid

 52   Ibid PN 597

 53   Ibid PN 695 - 697

 54   Ibid PN 598 - 603

 55   Ibid PN 604, 609, 611 and 615

 56   Ibid PN 605

 57   Ibid PN 614 and 631 - 633

 58   Ibid PN 642

 59   Ibid PN 673 and 675

 60   Ibid PN 722 - 723

 61   Ibid PN 714 - 715

 62   Ibid PN 604

 63   Ibid PN 643 - 644

 64   Ibid PN 648

 65   Ibid PN 650

 66   Ibid PN 651 - 655

 67   Ibid PN 662 - 665

 68   Ibid PN 666 - 668

 69   Ibid PN 743 - 745 and 791 - 805

 70   Ibid PN 806 - 808

 71   Ibid PN 753, 762 and 789

 72   Ibid PN 788

 73   Ibid PN 756 - 757, 773 - 775, 790, 803 and 809

 74   Ibid PN 759

 75   Ibid PN 759 - 768

 76   Ibid PN 776

 77   Ibid PN 770 - 772

 78   Ibid PN 777 - 783

 79   Ibid PN 784

 80   Ibid PN 785 - 786

 81   Ibid PN 810 - 812

 82   Ibid PN 813

 83   Ibid PN 95

 84   Ibid PN 99 and 101

 85   Ibid PN 335

 86   Exhibit A1 at paragraph 14

 87   Ibid at paragraph 18

 88   [2013] FWC 5415

 89   Transcript PN 865 - 868

 90   Ibid PN 949 - 952

 91   Ibid PN 870 and Exhibit A2 at paragraph 32

 92   Ibid PN 870

 93   Ibid

 94   Ibid PN 871

 95   Ibid PN 872 - 873

 96   Ibid PN 874

 97   Ibid PN 953

 98   Ibid PN 879

 99   Ibid PN 880

 100   Ibid PN 881

 101   Ibid PN 881

 102   Ibid PN 882 and 953

 103   Ibid PN 883 - 884

 104   Ibid PN 885

 105   Ibid PN 885 - 886

 106   Ibid PN 888

 107   Ibid PN 869

 108   Ibid PN 909 and Exhibit R1 at paragraphs 10 - 11

 109   Ibid PN 910

 110   Ibid PN 908 and Exhibit R1 at paragraphs 12 - 13

 111   [2015] FWCFB 5285

 112   Transcript PN 911 - 917

 113   Ibid PN 918

 114   Exhibit R1 at paragraph 15

 115   Ibid and Transcript PN 119

 116   Exhibit R1 at paragraph 14

 117   Transcript PN 921

 118   Ibid PN 920 - 921

 119   Ibid PN 921

 120   Ibid PN 922

 121   Ibid PN 922

 122   Ibid PN 923

 123   Ibid PN 923

 124   Ibid PN 924

 125   Ibid PN 925

 126   Ibid PN 927

 127   Ibid PN 928 - 929

 128   Ibid PN 930

 129   Ibid PN 930

 130   Ibid PN 931

 131   Ibid PN 932 - 935

 132   [2014] FWC 479

 133   Transcript PN 943, Exhibit A1 at paragraph 22 and Exhibit R1 at paragraphs 18 - 19

 134   Exhibit A1 at paragraphs 25 - 27

 135   Transcript PN 944 and Exhibit R1 at paragraph 21

 136   Ibid PN 20 - 21 and 39

 137   Exhibit A1 at paragraph 33

 138   Transcript PN 944 and Exhibit R1 at paragraph 26

 139   Ibid

 140   Exhibit A1 at paragraph 37

 141   Transcript PN 889

 142   [2011] FWAFB 975

 143   Ibid at [13]

 144   Exhibit A2 at Attachment OC13

 145   PR585557

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