Rabiee, Alireza v The Trustee for Doncaster European Unit Trust T/A Doncaster Volkswagen

[2019] FWC 8367

[2019] FWC 8367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rabiee, Alireza
v
The Trustee for Doncaster European Unit Trust T/A Doncaster Volkswagen
(U2019/11318)

COMMISSIONER CIRKOVIC MELBOURNE, 11 DECEMBER 2019

Application for an unfair dismissal remedy – whether to extend time for lodging the application.

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] It is not in dispute that the effective date of Mr Alireza Rabiee’s dismissal from employment with the Trustee for Doncaster European Unit Trust T/A Doncaster Volkswagen (Doncaster) was 27 March 2019. His unfair dismissal application (Application) was lodged electronically on 9 October 2018, meaning it was lodged 175 days outside the statutory timeframe.

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

The jurisdictional objection

[4] On 5 December 2019, a hearing was conducted in relation to the Applicant’s application for an extension of time.

[5] The Applicant tendered a number of documents and gave oral evidence in support of his application.

Matters to be taken into account pursuant to s.394(3)

[6] Subsection 394(3) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances (emphasis added). The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

“(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.”

[7] The meaning of ‘exceptional circumstances’ was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd, 3 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.

[8] I will deal with each of the matters in s.394(3) separately.

(a) The reason for the delay

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4 A dismissal can be communicated orally.5

[10] 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 when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 6 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,7the Full Bench explained (at [31]) the correct approach by reference to the following example:

“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.”

[11] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s 394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 8

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[12] As to credible explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 9

Relevant chronology of events and reasons for delay

[13] The Applicant submits that there are exceptional circumstances giving rise to the delay. His reasons are as follows:

“1. My wife has been diagnosed with two serious illnesses and she had two operations and subsequent rehabilitation as the result.

2. Since my unfair dismissal, I have been diagnosed with Brain Dural Arteriovenous Fistula and Hepatic Steatosis and have been undergoing a number of tests and investigative procedures in order for the right course of treatment to be finalized. In addition I have gone through various medical test [sic] to diagnose Proteinuria.

3. I have been pursuing medical reports and Independent Assessment for the Workplace injury I had at the same place on 7^th of March 2019.

4. I have had long process of negotiations with my financial institutions in order to keep my house and not default in my mortgage which was due to some of the issued [sic] raised above.” 10

[14] The Applicant submitted a number of documents, including medical documents, into evidence. I have set out the relevant points in a chronology below:

•  4 June 2018 – Applicant commences employment with Doncaster, as a Sales consultant;

•  7 March 2019 – Applicant sustains an injury at work (broken nose);

•  8 March 2019 – Applicant is referred for a number of tests by treating doctor; Applicant undergoes CT scan;

•  9 March 2019 – Applicant files Workers’ Compensation Claim;

•  27 March 2019 – Applicant is dismissed from employment with the Respondent;

•  17 April 2019 – Application due under the normal statutory time limit;

•  26 April 2019 – Default notice and letter of demand served on Applicant by Thomson Geer, on behalf of Australia and New Zealand Banking Group Limited (ANZ);

•  22 May 2019 – Authorised Agent for the Victorian WorkCover Authority rejects Applicant’s claim;

•  25 May 2019 – Applicant undergoes blood tests, pursuant to referral of 8 March 2019;

•  1 June 2019 – Applicant is referred for MRI scan;

•  5 June 2019 – Thomson Geer write to Applicant on behalf of ANZ with offer to settle outstanding account;

•  7 June 2019 – Applicant undergoes MRI scan and radiologist Dr Chris Holden writes report to Applicant’s treating general practitioner;

•  8 June 2019 – Applicant is referred for urine and blood tests;

•  1 July 2019 – Applicant undergoes tests pursuant to referral of 8 June 2019;

•  3 August 2019 – Applicant referred for blood tests;

•  10 August 2019 – Applicant undergoes blood tests pursuant to referral of 3 August 2019;

•  13 August 2019 – Applicant consults Ear Nose and Throat (ENT) specialist, who writes report;

•  15 August 2019 – Applicant referred for CT scan by Associate Professor Paul McCrory;

•  28 August 2019 – Applicant undergoes CT venogram pursuant to referral of 15 August 2019;

•  10 September 2019 – A/Prof McCrory writes to Dr Fallah, indicating he has referred the Applicant to Professor Gavin Davis for a surgical opinion;

•  10 September 2019 – Prof Gavin Davis writes to Professor McCrory;

•  19 September 2019 – Applicant makes appointment for cerebral angiogram scan;

•  9 October 2019 – Applicant lodges Application;

•  28 October 2019 – Applicant conciliates with Accident Compensation Conciliation Service;

•  31 October 2019 – Applicant has angiogram;

•  1 November 2019 – Accident Compensation Conciliation Service certifies outcome of 28 October 2019 conciliation.

[15] The Applicant also submitted several documents relating to the medical treatment of his wife (Ms Hashemi), relating to time periods in late 2017, late 2018 and early 2019 (up to February 2019). Some invoices relating to Ms Hashemi’s treatment, dated in May and June 2019, were also submitted.

[16] The Applicant’s oral evidence also included the following points:

•  he began working within a month of his termination, initially in painting work and afterwards in running his own business as a cultural consultant, a business in which he remains engaged;

•  on 3 April 2019 he saw an online advertisement posted by the Respondent for a position that was the same as the position from which he was dismissed, and anonymously telephoned Doncaster who confirmed “yes, there is a position”;

•  at that time, he did not know that he could “object” to his dismissal or make a claim;

•  he was first informed of his right to make an unfair dismissal application and the 21-day time limit for doing so in August 2019, by a lawyer with whom he had consulted specifically about his WorkCover claim;

•  the lawyer recommended he speak to the Fair Work Ombudsman, but did not advise in relation to the dismissal as they were not engaged for that purpose;

•  shortly after, in August 2019, the Applicant accessed the Commission website, printed out the application documents and put them in a pile along with his other paperwork “to do at the end of the month”;

•  he made payments in satisfaction of the demands in relation to his mortgage on or around 11 August 2019.

[17] The Respondent submitted that the Applicant’s circumstances are not exceptional given the following:

•  the Applicant was able to make a WorkCover claim within the relevant period;

•  the Applicant had been able to work and manage his own business during the relevant period; and

•  the Applicant’s evidence as to his wife’s medical conditions indicates no rehabilitation that would have affected the Applicant’s ability to lodge his application in time.

[18] In accordance with the principles summarised at [9] - [12] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 17 April 2019 to 9 October 2019. However, the circumstances from the time of the dismissal on 27 March 2019 must be considered when assessing whether there is any credible explanation of the delay, or any part of the delay, beyond the 21 day period. I have considered the evidence in accordance with these principles.

[19] Whilst I am sympathetic to the Applicant’s position and indeed any employee who suffers from the loss of their employment, I am not persuaded that in this case the evidence before me supports a finding that there is a credible reason for the lengthy delay in this matter.

[20] Firstly, I am not persuaded that the Applicant’s own medical concerns rendered him unable to file an unfair dismissal application. On 13 August 2019, the Applicant’s ENT specialist wrote:

“[he] complains that the nose is constantly blocked and was not like this prior to the accident. He has had no past history of nasal surgery. His general health is otherwise good.”

[21] On 10 September 2019, Prof Gavin Davis wrote:

“He had a single episode of headache three months ago and has remained asymptomatic since.”

[22] At no stage was the Applicant hospitalised. The Applicant did undergo multiple medical tests over multiple months, however there is insufficient evidence before me to conclude that the testing was disruptive enough so as to provide a credible reason for the delay. In relation to the Applicant’s wife Ms Hashemi, I agree with the Respondent that the evidence indicates no rehabilitation that would have affected the Applicant’s ability to lodge an unfair dismissal application. Further, on his own evidence, the Applicant was working shortly after his termination, which included running his own business as a cultural consultant. He was able to consult a lawyer in relation to a WorkCover claim and prosecute that claim. He was able to attend to his financial affairs. In these circumstances, it would appear that he was able to and could have lodged an unfair dismissal application.

[23] On the basis of the material presented to me, I am not persuaded that the Applicant has provided a credible reason for the delay. This weighs against granting an extension of time.

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

[24] It is undisputed that the Applicant received notification that his dismissal would take effect on 27 March 2019. He had the full 21 days to lodge his application. In this matter I consider this factor to be a neutral consideration.

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

[25] Action taken by an employee to contest the dismissal, other than lodging an unfair dismissals application, may favour the granting of an extension of time. 11

[26] There is no evidence that the Applicant took any step prior to 9 October 2019 to dispute his dismissal, other than in making an anonymous inquiry, referred to at paragraph [14] above.

[27] In this matter I consider this factor to be a neutral consideration.

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

[28] The Applicant submitted that the employer has not been prejudiced as it “has been conducting business as per usual and in fact employed my replacement within days after I was made redundant.” 12

[29] The Respondent concedes that the lateness of the Application had not caused any disadvantage or unfairness. 13

[30] I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. Some decisions of the Commission view the absence of prejudice to the employer as a factor weighing in favour of granting an extension of time. In my view, in this case at least, it is a neutral factor. However, if the absence of prejudice should properly be treated as telling in favour of an extension of time, I would attribute it little weight in the consideration of whether there are exceptional circumstances in the present case.

(e) Merits of the application

[31] The Commission notes that for the purpose of determining whether to grant an extension of time to the Applicant to file his application it “should not embark on a detailed consideration of the substantive case.” 14

[32] The Applicant is challenging that his dismissal was a case of redundancy. 15 The Respondent submits that the case is one of genuine redundancy.

[33] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 16 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application.17 I have not done so.

[34] Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

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

[35] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 18

[36] The Applicant submits:

“I have confronted numerous medical and financial problems since I was made redundant from the company. I had to deal with all of these issues on my own and still going through the problems as at today”.

[37] I am not aware of any circumstances that are relevant for the purposes of examining the question of fairness as between the Applicant and other persons who might be considered to be in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[38] Having considered all of the factors set out in s.394(3) I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.394(3) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.

[39] An order to that effect will be published separately to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Appearances:

Mr A Rabiee (self represented)

Ms C Roache for the Respondent

Hearing details:

6 December 2019

Printed by authority of the Commonwealth Government Printer

<PR715037>

 1   s.394(2)(a).

 2   s.394(3) of the Act.

 3   [2011] FWAFB 975.

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

 5   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.

 6   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].

 7   [2018] FWCFB 3288 at [35]-[45].

 8   [2018] FWCFB 3288 at [35]-[45]

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

 10   Applicant’s form F2.

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 12   Applicant’s Outline of Argument.

 13   Respondent’s Outline of Argument.

 14   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 15   Applicant’s Outline of Argument, question 7.

 16   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 17   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 18   Wilson v Woolworths [2010] FWA 2480, [24]-[29].