Rasim Ruzdic v Hills Airport Shuttle Pty Ltd T/A Hills Airport Shuttle

[2018] FWC 1094

[2018] FWC 1094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rasim Ruzdic
v
Hills Airport Shuttle Pty Ltd T/A Hills Airport Shuttle
(U2017/9698)

DEPUTY PRESIDENT BOOTH SYDNEY, 21 FEBRUARY 2018

S.394 — Unfair dismissal — Extension of time application – Jurisdictional objection upheld – Application dismissed

[1] Mr Razim Ruzdic made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act) on 5 September 2017 in relation to the termination of his employment as a driver with Hills Airport Shuttle Pty Ltd t/a Hills Airport Shuttle (HAS). Mr Ruzdic had driven a HAS shuttle bus between the Hills district in north-west Sydney and the airport since June 2010.

[2] This decision concerns the initial jurisdictional issue of whether Mr Ruzdic’s application can proceed, given it was made more than 21 days after the dismissal took effect.

[3] Mr Ruzdic alleges that he was dismissed because he raised concerns with Mr Andrew Hamwi, Director of HAS, that he was being treated as a contractor when he believed he was in fact an employee.

[4] For its part, HAS raises a jurisdictional objection that Mr Ruzdic was not an employee and therefore not able to make an application for unfair dismissal remedy. This decision does not deal with that objection.

[5] The reason HAS rely on most heavily for ending the relationship with Mr Ruzdic is that Mr Ruzdic moved house to live in an area outside the boundaries that the company operates in. Mr Ruzdic maintains that this was not a legitimate reason for his employment being terminated as he was willing to travel for work and had not indicated to HAS that moving house would cause any difficulties.

[6] As I will detail further below, determining the date on which Mr Ruzdic’s employment came to an end is not straightforward. It is clear that the last day that Mr Ruzdic worked for HAS was 23 June 2017. 1

[7] HAS did not raise a jurisdictional objection on the basis that the application was out of time, however s.394(2) of the Act requires that an application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. If the application is not made within this timeframe, s.394(3) allows the Commission to grant a further period for the application to be made if the Commission is satisfied there are exceptional circumstances. Therefore Mr Ruzdic’s application cannot be heard and determined unless the Commission grants an extension of time.

[8] Mr Ruzdic says that he was uncertain about his employment status until he received an email from Mr Hamwi on 3 August 2017. Even if I did accept that Mr Ruzdic became aware of his dismissal on 3 August 2017, his application for unfair dismissal remedy would need to have been made by 24 August 2017 to satisfy s.394(2)(a) of the Act. Therefore either way I must consider s.394(3)(a)-(f) of the Act.

[9] I note that after the application was made to the Commission, there was a considerable delay in listing the matter for conciliation due to unavailability on the part of both parties. Ultimately, an unsuccessful conciliation was conducted on 16 November 2017.

[10] The parties were advised on 1 December 2017 that the matter would proceed to a jurisdictional hearing to determine the Applicant’s extension of time application. The matter came to me for programming on 5 December 2017.

[11] I listed the matter for a jurisdictional hearing on 12 January 2018. I issued Directions requiring Mr Ruzdic to file material in respect of his extension of time application by 15 December 2017 and for HAS to file any material in opposition by 5 January 2018. Mr Ruzdic complied with those directions however HAS did not file any material.

[12] In the afternoon of 11 January 2018, a colleague of Mr Hamwi contacted my Associate advising that Mr Hamwi would be unable to attend the hearing on 12 January 2018 on behalf of HAS due to ill health. Noting particularly the delay since the filing of the application and the failure of HAS to comply with my Directions I determined to proceed with the hearing. I advised the parties that I intended to provide the transcript to HAS for its written response. At the hearing, Mr Ruzdic gave evidence and was assisted by his son, Emir Ruzdic and family friend, Kate Tones. There was no appearance for HAS.

[13] On 18 January 2018 I sent the parties the transcript of the hearing and issued further Directions requiring HAS to file any further material by 25 January 2018, with any material in reply from Mr Ruzdic to be filed by 1 February 2018.

[14] HAS filed a brief response on 2 February 2018, several days late. I note that the response did not at all address the matter of an extension of time. Nevertheless I extended the Directions timetable to allow any material in reply to be filed by Mr Ruzdic by 9 February 2018. Mr Ruzdic filed a further short witness statement on 9 February 2018.

[15] I note that the material filed by the parties contains some factual conflict about the conditions Mr Ruzdic worked under as a driver for HAS, including matters such as arrangements for taking leave and, whether drivers commonly had other forms of income to supplement their earnings from work performed for HAS. I do not consider that any of the matters on which the parties differ relate to Mr Ruzdic’s extension of time application and I have therefore determined to issue a decision without a further hearing.

Legal Framework

[16] 394 of the FW Act relevantly states:

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.

[17] Pursuant to s. 394(3), Mr Ruzdic’s application can only proceed to be heard if he can satisfy me that ‘exceptional circumstances’ exist.

[18] In Nulty v Blue Star Group Pty Ltd [2011] FWAFB 7251, a Full Bench of the Commission considered the meaning of ‘exceptional circumstances’ (in the context of s.366 of the Act):

[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.

[19] For the reasons below, I am not satisfied that exceptional circumstances exist that warrant an extension of time for Mr Ruzdic’s application.

When did Mr Ruzdic’s dismissal take effect?

[20] In order to consider the factors in s.394(3) of the Act in the context of this matter, I first need to determine the date of Mr Ruzdic’s dismissal. I note that while HAS has raised a jurisdictional objection that Mr Ruzdic was not in fact dismissed as he was not an employee, for the purpose of determining the application for an extension of time only I will assume Mr Ruzdic was dismissed.

[21] Mr Ruzdic says that around mid to late May 2017 he had had a conversation with Mr Hamwi in which Mr Ruzdic had confirmed he would be moving suburbs from Baulkham Hills to Woolwich. 2 Mr Ruzdic says he suggested that, in light of his move, the business expand its pick up area,3 however he says that he did not get a response to this suggestion from Mr Hamwi.4

[22] Mr Ruzdic gave evidence that on 23 June 2017 he drove to a schedule that was busy, as usual. That day was a Friday and he did not expect to work again until the following week. 5

[23] Mr Ruzdic confirmed that although he did not usually drive on a Monday, his usual practice was to go to the office and drop off his completed paperwork for the previous week on that day. 6 Mr Ruzdic says that when he went to the office on Monday 26 June 2017 to drop off his completed paperwork, he spoke to the secretary and told her he was moving house the following day.7 He says he asked the secretary to pass on a request to Mr Hamwi that he be allocated jobs with a schedule that allowed a start and finish at the airport because it would be more convenient for his new residence.8 I note that Mr Ruzdic’s witness statement is inconsistent with this evidence to the extent it indicates he moved house on 24 June 2017, however I accept the move took place sometime around the end of June 2017.

[24] Mr Ruzdic did not receive an allocation of jobs for the following week, although he remained in possession of the HAS bus he had been driving. He says that Mr Hamwi called him on Friday, 30 June 2017 and explained that he had been unable to allocate him any work to fit the schedule Mr Ruzdic had requested. 9 Mr Ruzdic was also requested to return the bus, together with the Eftpos machine.10 On the same day Mr Ruzdic returned the bus, with the Eftpos machine in it, to Mr Hamwi’s house and left the key in a letterbox.11

[25] Mr Ruzdic maintained that the request to return the bus and Eftpos machine was not out of the ordinary, as it was common for another driver to use the bus over the weekend when Mr Ruzdic did not work and return it on either a Sunday night or Monday morning for his use during the week. 12 However on this occasion the bus was not returned.

[26] At hearing, the following exchange about Mr Ruzdic’s expectation of ongoing work with HAS in light of the bus not being returned at the usual time occurred:

THE DEPUTY PRESIDENT: So you expected that you would get some further work from Andrew after that?

MR R RUZDIC: Yes.

THE DEPUTY PRESIDENT: And you were expecting that it would be work that would be suitable to your new residence, that is, pick up and deliver at the airport?

MR R RUZDIC: Look, I was always, whole my life, all period, I was very devoted and fair against the company - you know, I was treating this company as my company - own my company, you know - and really I was worrying about everything, just as my own. And it was a little bit strange for me that I didn’t get bus back on Monday, or Sunday evening or Monday, you know. 13

[27] Mr Ruzdic says that he was subsequently very busy and stressed moving house, as he had relocated from his long term house to a considerably smaller residence and as a result had to undertake the task of downsizing his belongings. 14 He says he did not ‘think anything’ of having not heard from Mr Hamwi for several weeks for this reason, and that having time off work suited him in any event as he had been suffering work related stress.15

[28] Mr Ruzdic’s witness statement gives the following account of subsequent events:

14. After a couple of weeks have passed, I tried contacting Andrew a few times but he did not answer my calls. I was very confused and was not sure what was happening. During the past 7 years of my employment, Andrew had, at times, behaved like this towards me, but it had generally resolved within a couple of weeks. I wasn’t quite sure what to do next and this exacerbated my mental distress.

15. I then did some research online and made some calls to the Fair Work Ombudsman to see what my rights were and discovered that my work arrangement with Andrew all these years was falsely classified as a contractor.

16. With the help of my son, I wrote a letter to Andrew and sent it to him on 20 July 2017 to try and resolve the situation.

[29] The letter Mr Ruzdic sent to Mr Hamwi is in evidence and is in fact dated 27 July 2017. In the letter, Mr Ruzdic makes a claim for underpayments he alleges that HAS owed him as a result of his incorrect classification as a contractor rather than an employee. The letter alleges that HAS breached sham contracting provisions of the Act and requests repayment of over $40,000.00.

[30] At hearing, the following exchange occurred about the circumstances at the time Mr Ruzdic wrote the letter:

THE DEPUTY PRESIDENT: But your mind must have been on the conclusion of your employment when you wrote this letter, was that right, or did you expect that he was going to receive this letter and your employment was going to continue?

MR R RUZDIC: I was angry, you know. I feel that this is not fair against me because of my relation to him, you know, and it bothered me as - you know, it was out of anything, you know; just I feel - - -

[31] At that point Ms Tones, who also helped to write the letter of 27 July 2017 explained that Mr Ruzdic and Mr Hamwi had fall outs in the past that they had ‘come back’ from which made him think he might receive a positive response to the letter. 16

[32] Mr Hamwi replied to the letter in an email on 3 August 2017. He denied the allegations that the relationship had involved sham contracting and maintained that Mr Ruzdic was a contractor. The email raises concerns about Mr Ruzdic’s driving record and its impact on insurance premiums for HAS. It also states that Mr Ruzdic’s family had in fact requested Mr Ruzdic not be ‘overloaded’ with work due to health concerns. However Mr Hamwi went on to state:

‘The only reason we stopped giving you work is because you moved house to a suburb we don’t operate in.’

[33] Mr Ruzdic says that upon receipt of the email of 3 August 2017 that he became ‘upset’ as it was at that point he realised he was ‘most probably’ not going to work for HAS again. 17

[34] The submissions by HAS filed by 1 February 2018 repeat claims about Mr Ruzdic’s driving record and complaints received about him during the time he worked for the company. However the submissions depart slightly from the unequivocal statement in Mr Hamwi’s email of 3 August 2017 extracted above. In those submissions HAS say:

‘when it came to his request to give him work to suit his new home that’s when we wouldn’t keep him on as a driver and tried for a couple of weeks to allocate work to him but couldn’t fit him in the schedule.’

[35] I also note that although HAS maintains Mr Ruzdic could not have been dismissed because he was a contractor rather than an employee, the Form F3 Employer Response to Unfair Dismissal Application filed by HAS indicates that Mr Ruzdic was notified of his dismissal on 24 June 2017 and it took effect the same day. However no other evidence has been filed indicating that to be the case and it is inconsistent with the submissions made by HAS that they attempted to allocate Mr Ruzdic work for a period of time to accommodate his move. There is no further evidence from HAS that indicates the company ever expressly made Mr Ruzdic aware that it no longer intended to allocate work to him.

[36] Despite this, and despite Mr Ruzdic’s evidence in this regard, I consider that at the time he was assisted to write the letter of 27 July 2017, Mr Ruzdic held the belief that he no longer worked for HAS. Although Mr Ruzdic does state at the outset of the letter that he has ‘not been formally terminated or advised of redundancy or dismissal, so my current employment status is unclear’ I consider that the balance of the letter indicates that Mr Ruzdic considers the employment relationship to have ended.

[37] The letter largely refers to Mr Ruzdic’s employment in the past tense, referring to how he ‘should have’ been classified, noting that he has ‘only recently stopped working for the company’ and stating that he has ‘provided all records from the entirety of my employment’ in order to calculate ‘what I should have been paid throughout my employment’.

[38] The letter concludes by confirming Mr Ruzdic wished to resolve the matter ‘amicably, reasonably and quietly, so as not to impact any existing sham contracting arrangements you have in place that should also be classified as employees’ and stating that if Mr Hamwi would like to discuss the matter or meet Mr Ruzdic face to face he should notify him of a suitable time and date and Mr Ruzdic would attend with his son and advisor. There was no suggestion that the matter might be discussed when the two men next met each other in the work context, no mention of how work done by Mr Ruzdic should be classified in the future, or in fact any suggestion that Mr Ruzdic would perform any further work for HAS.

[39] However the finding that by 27 July 2017 Mr Ruzdic realised he was dismissed does not precisely pinpoint a date of dismissal. I note Mr Ruzdic’s acknowledgment that he found it ‘strange’ that the bus had not been returned to him on Sunday 2 July 2017 or Monday 3 July 2017. By 27 July 2017, Mr Ruzdic had not worked for almost 5 weeks. However HAS submits that it tried for a ‘couple of weeks’ from the last week in June 2017 to allocate Mr Ruzdic work. On the evidence available, I have decided that the date Mr Ruzdic’s dismissal took effect for the purpose of considering Mr Ruzdic’s extension of time application as 27 July 2017. However even if the relevant date could be said to be 3 August 2017, the date Mr Ruzdic received an email for Mr Hamwi and as mentioned above Mr Ruzdic became ‘upset’ as it was at that point he realised he was ‘most probably’ not going to work for HAS again, his application was out of time and the same consideration applies.

[40] I now turn to consider each of the factors set out in s. 394(3) of the Act.

Are there exceptional circumstances - s. 394(3)?

Reason for the delay

[41] Given that I have found that Mr Ruzdic’s dismissal took effect on 27 July 2017, for his application to be lodged in time it would need to have been filed by 17 August 2017. The delay is therefore the period 18 August 2017 to 5 September 2017, a period of 18 days; but the period of time to be considered in relation to the reason for delay is the whole of the period 28 July to 5 September 2017. 18 This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 which concerned an unfair dismissal application:

[31] … while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances.

[42] Mr Ruzdic gave evidence that he had suffered from poor health prior to and during the period in which his application was late. On 27 March 2017 he was hospitalised with high blood pressure after a visit to his General Practitioner. On 31 March 2017 Mr Ruzdic’s wife emailed Mr Hamwi to request reduced working hours for her husband due to his poor health. Mr Ruzdic says that while he still worked some long days after this, ‘generally the conditions got better’. 19

[43] In support of his application Mr Ruzdic provided a letter dated 28 November 2017 from his General Practitioner, Dr Alex Andric. Dr Andric did not give evidence at the hearing. Dr Andric considered that in addition to suffering high blood pressure, from April 2017 Mr Ruzdic had also begun to experience mental health symptoms, and went on to suffer anxiety and eventual depression from May 2017. Dr Andric considered that Mr Ruzdic was generally an organised and diligent individual whose mental health condition prevented him from being able to compile and lodge his unfair dismissal application.

[44] In his evidence before me, Mr Ruzdic had some difficulty explaining his precise symptoms, and how it was that they had contributed to the delay in lodging his application. He described hearing a ringing in his head, and some kind of pressure. Overall he described feeling ‘strange’ for approximately the previous five months. 20 He said that after he received the email from Mr Hamwi on 3 August 2017, he felt bad, and his blood pressure was extremely high. Overall, he described being in a state of confusion.21

[45] When asked how he was able to move from that state of confusion to lodging his application in the Commission, Mr Ruzdic said:

I knew that I have to do something, you know. I can’t leave it just like that, because I told you I feel personally attacked by this way, that it extremely unfair against me, you know, and I feel it that I have to do something, but I wasn’t in mental possibility to make any action in this way. 22

[46] Ms Tones and Mr Emir Ruzdic further explained that it was only with their assistance that Mr Ruzdic was able to lodge his application with the Commission. It was not until 2 September 2017 that Mr Emir Ruzdic became aware the application had not been completed. Ms Tones acknowledged that she knew when she started to assist Mr Ruzdic to complete the application on 2 September 2017 that it was out of time; however she did not indicate when she became aware of that fact.

[47] While I sympathise with Mr Ruzdic’s ill health, I do not consider that his symptoms constitute exceptional circumstances that explain his delay in lodging the application. Mr Ruzdic was quite alive to the mistreatment he perceived he had experienced by virtue of HAS classifying him as a contractor for the duration of his employment. Toward the end of July 2017 he was able to conduct online research and make enquiries with the Fair Work Ombudsman about his conditions of employment with HAS. He was also able (with the assistance of Ms Tones and Mr Emir Ruzdic) to collate records from the entirety of his employment with HAS, and calculate alleged underpayments and co-operate in the writing of a letter on 27 July 2017 making a claim upon HAS.

[48] I consider this indicates that although Mr Ruzdic was certainly suffering health conditions, they were not special or unusual so as to prevent him functioning at a level that would have allowed him to also to file an application with the Commission.

[49] In the absence of specific medical evidence explaining a difference in Mr Ruzdic’s condition during the relevant period I do not consider Mr Ruzdic’s health constitutes exceptional circumstances within the meaning of the Act. This factor weighs against granting Mr Ruzdic’s extension of time application.

[50] I note that I do not consider moving house constitutes a reason for the delay. While Mr Ruzdic explained that being busy and stressed with moving was a reason he did not focus on having not received any work from HAS for some weeks, there is no evidence that it contributed to the delay.

Whether the person became aware of the dismissal after it had taken effect

[51] As set out above, I have found that Mr Ruzdic was at least aware of his dismissal at the time he wrote the letter to HAS on 27 July 2017. Even if this were not the case, Mr Ruzdic acknowledged that after he received Mr Hamwi’s email of 3 August 2017 he realised he would not be receiving any further work.

[52] I consider this factor weighs against granting an extension of time.

Any action taken by the person to dispute the dismissal

[53] While Mr Ruzdic raised issues of underpayments with HAS, he did not dispute the fact of his dismissal. He first disputed his dismissal when he lodged his application with the Commission.

[54] I consider this factor weighs against granting an extension of time.

Prejudice to the employer

[55] HAS have been given the opportunity but have not provided any evidence to demonstrate they would be prejudiced if Mr Ruzdic were to be granted an extension of time.

[56] The onus is on the employer to produce evidence to demonstrate prejudice (Cowie v State Electricity Commission of Victoria [1964] VR 788 (21 July 1964); cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547). I note that the mere absence of prejudice is not a sufficient ground on which to grant an extension of time (Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300).

[57] I consider that this factor is neutral in relation to my decision.

Merits of the application

[58] I note that HAS raises a jurisdictional objection in this matter on the basis that Mr Ruzdic was not an employee. This objection is strongly resisted by Mr Ruzdic who says his characterisation as a contractor by HAS was a sham. I consider that I would need a substantial amount of further evidence about issues such as the operations of the business and Mr Ruzdic’s conditions of work before I could be satisfied as to whether the jurisdictional objection would be likely to be upheld.

[59] Leaving HAS’ jurisdictional objection to one side, I note that they have provided multiple reasons for ceasing to provide Mr Ruzdic with work, including him moving house, complaints received about him and his driving record, none of which have been the subject of any evidence before me that suggests any particular outcome in relation to the merits of the case.

[60] I therefore consider the merits of the case to be a neutral factor in this instance.

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

[61] I do not consider this factor to be relevant as there is no suggestion that there are any other persons in a similar position to Mr Ruzdic.

Conclusion

[62] The conduct of Mr Ruzdic throughout the entire period after dismissal until lodgement is relevant in considering whether exceptional circumstances exist. 23

[63] Taken together, the circumstances in relation to the factors I must consider do not satisfy me that during this period there were exceptional circumstances pertaining to Mr Ruzdic’s failure to lodge his application within time.

[64] Accordingly, Mr Ruzdic’s application for remedy from unfair dismissal is dismissed.

DEPUTY PRESIDENT

<PR600565>

 1   Transcript, PN304.

 2   Transcript, PN268-280.

 3   Transcript, PN272.

 4   Transcript, PN273-274.

 5   Transcript, PN232-239.

 6   Transcript, PN239-242.

 7   Transcript, PN280.

 8   Transcript, PN280-284.

 9   Transcript, PN330-333.

 10   Transcript, PN329-343.

 11   Transcript, PN339-345.

 12   Transcript, PN333, 348.

 13   Transcript, PN349-352.

 14   Statement of Mr Razim Ruzdic, dated 14 December 2017 - paragraph 9; Transcript, PN361.

 15   Statement of Mr Razim Ruzdic, dated 14 December 2017 - paragraph 13.

 16   Transcript, PN373.

 17   Statement of Mr Razim Ruzdic, dated 14 December 2017 - paragraph 18.

 18   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403; Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at 12.

 19   Statement of Mr Razim Ruzdic, dated 14 December 2017 - paragraph 6.

 20   Transcript, PN58-64.

 21   Transcript, PN 383, 385.

 22   Transcript, PN 389.

 23   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403.

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