Sahand Aghdam Bagheri v YBF Pty Ltd T/A YBF Ventures

[2019] FWC 48

[2019] FWC 48

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sahand Aghdam Bagheri
v
YBF Pty Ltd T/A YBF Ventures
(U2018/9680)

COMMISSIONER GREGORY MELBOURNE, 4 JANUARY 2019

Application for relief from unfair dismissal – jurisdictional objection – extension of time – extension of time granted.

Introduction

[1] Mr Sahand Aghdam Bagheri was employed by YBF Pty Ltd T/A YBF Ventures (“YBF”) for approximately four years until his employment was terminated in August 2018. Mr Bagheri subsequently lodged an unfair dismissal application with the Commission. However, YBF raised a jurisdictional objection in response claiming the application, filed on 19 September, was not filed within the required 21 day period following the date of termination.

[2] Mr Bagheri submits in response that his application was filed in time because his termination did not take effect until 29 August. However, he also submits in the alternative that if the Commission finds it was not filed within the 21 day period then “exceptional circumstances” exist to warrant an exercise of the Commission’s discretion to extend time in which to make application. This decision deals with YBF’s jurisdictional objection.

[3] Mr James Tierney of Counsel appeared on behalf of Mr Bagheri. Mr Martin Stirling, from Gilchrist Connell, appeared on behalf of YBF. Both were granted permission to appear under s.596(2)(a) of the Fair Work Act 2009 (Cth) as the matter involved a degree of complexity, given the nature of the jurisdictional objection, and their involvement might enable it to be dealt with more efficiently.

The Issues to be Determined

[4] The Act provides that an unfair dismissal application is to be lodged within 21 days of the date of dismissal. However, s.394(3) gives the Commission the discretion to extend the time for making application if it believes there are “exceptional circumstances” existing to warrant an exercise of this discretion, taking into account each of the following considerations:

“(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.” 1

[5] The Commission is now required to determine, firstly, whether Mr Bagheri’s application was lodged within the 21 day period following his termination. If it finds that it was not lodged within time then it is also required to consider whether “exceptional circumstances” exist to warrant an exercise of the discretion to grant additional time in which to make application having regard to each of the matters in s.394(3).

The Evidence and Submissions

The Applicant

Sahand Aghdam Bagheri

[6] Mr Bagheri was first employed by YBF in the role of Corporate Partnership Manager on 10 March 2014. However, on 28 August 2018 he met with Mr Nicolaas Maartens, the Chief Operating Officer at YBF, and Mr Jason Lim, the Chief of Staff, and was told that the business had decided it was “going to let you go.” 2 He was then told to take the rest of the afternoon off and YBF would be in further contact later in the day. At 5.07 pm he received a text message from Mr Maartens stating, “Hi Sahand, we have decided to bring things to closure today. We would prefer to do that face to face, but if that does not work for you we can have a phone call as well. Alternatively, if we don’t manage to connect today, we will communicate our decision via email. Again, we would prefer face to face.”3

[7] At 5.57 pm he received an email from Mr Maartens which stated under the heading, “Decision confirmation”:

“Sahand,

As per the text message earlier, we were very keen to communicate our decision about your employment face to face. As you've indicated that you will not be available until Thursday, we unfortunately have to communicate it by email today.

After reviewing the items you have raised, we have decided to stand with our decision that we will be terminating your employment today. We feel we have given you sufficient time to correct the development items discussed with you at the start of the calendar year, and that we have communicated our view that you were not performing at the required level on numerous occasions, both verbally and in writing.

Based on your employment contract, you have a notice period of 4 weeks. As discussed in our earlier meeting today, because today is your last day at the company we will pay you your notice in lieu of you working the notice period. Also, wanted to confirm that all YBF materials and information are not to be shared or used, and should be deleted from your devices right away. Finally, we would request that any work in progress be transferred to us.

Again, it would have been our preference to communicate this to you face to face or over the phone, but to take into consideration the logistics of the week, and because you indicated that if it was urgent to communicate via email, which we feel is it, we decided to confirm our decision to you this way. However, as always, feel free to reach out always.” 4

[8] Mr Bagheri then received a letter on the following day from a Director of YBF which stated at the outset, “This letter is to confirm the termination of your employment with YBF effective as of yesterday, the 28^th of August 2018.” 5

[9] Mr Bagheri then sought advice on the same day from the firm of DSA Law, and in a letter of advice from the firm, dated 4 September, he was informed that the deadline to make an unfair dismissal application was 19 September 2018. He then left Australia on 31 August 2018 on a three week overseas trip which had been arranged previously and was, in part, intended for the purpose of visiting his grandmother who was unwell. Mr Bagheri was subsequently contacted by DSA Law on 17 September, while he was still overseas, and he again confirmed his instructions for an unfair dismissal application to be lodged on his behalf.

[10] Mr Bagheri also indicated in his witness statement that he migrated from Iran eight years ago and is now pursuing a permanent residency application in Australia. He stated that the application is wholly dependent on YBF’s role as a nominating employer, and as a result of the termination of his employment his application has been significantly jeopardised.

[11] He also indicated in cross examination that while the main purpose of his overseas trip was to visit his grandmother he was eventually unable to see her because of a complication in regard to her medical condition. He also indicated that he initially pursued the strategy of seeking reinstatement from his former employer because being employed was critical to his application for permanent residency in Australia.

Benjamin Ronald Franklin

[12] Mr Franklin is a Senior Associate at DSA Law. He met with Mr Bagheri on 29 August and obtained instructions in response to the termination of his employment. On 4 September he wrote to Mr Bagheri and advised that he was required to lodge an unfair dismissal application by 19 September 2018. On 12 September DSA Law wrote to YBF, taking issue with Mr Bagheri’s termination and requesting he be reinstated by 17 September 2018.

[13] After several subsequent attempts to contact Mr Bagheri the firm received an email from him on 17 September 2018 confirming his instructions to lodge an unfair dismissal application. It also received correspondence from lawyers acting on behalf of YBF rejecting the request for Mr Bagheri to be reinstated.

[14] After further consideration of the appropriate course of action in regard to Mr Bagheri DSA Law proceeded to lodge an unfair dismissal application on his behalf with the Fair Work Commission, which was received on 19 September 2018 at 2.51 pm.

[15] Mr Franklin indicated in cross examination that the strategy being pursued on behalf of Mr Bagheri involved an attempt to first achieve “a commercial resolution” 6 without the need to expend resources on filing an unfair dismissal application. This involved an initial approach to YBF seeking to have Mr Bagheri reinstated. Mr Franklin acknowledged that an application could have been filed on 18 September, but he was acting under the mistaken apprehension at the time that there was still a further day available in which to file an application within time. He also indicated in response to a question from the Commission that an application would have been filed on behalf of Mr Bagheri, given his earlier instructions, regardless of whether he subsequently made contact with the firm to again confirm those earlier instructions.

The Applicant’s Submissions

[16] Mr Bagheri submits at the outset that his termination was only confirmed at 5.57 pm on 28 August 2018, which was after the completion of his normal daily working hours. He then received a formal letter of termination on the following day which purported to backdate the date of effect of his termination. His date of termination should therefore be 29 August 2018 and as a consequence his unfair dismissal application, which was lodged on 19 September 2018, was lodged within time.

[17] However, he also submits in the alternative that if the Commission finds his application was lodged outside of the 21 day time period then the Commission should exercise its discretion to grant additional time in which to make application because the delay in lodging was not the result of his conduct, but was due entirely to representative error.

[18] Mr Bagheri also submits that the merits of his unfair dismissal application are strong as he was not provided with any warnings about his conduct or work performance prior to his termination. He also submits that he was not provided with sufficient coaching or mentoring during the time he was employed to enable him to effectively carry out his role. He also rejects the suggestion that YBF is a small business in the context of s.23 of the Act, but submits that in any case it has not complied with the Small Business Fair Dismissal Code in terminating his employment.

The Respondent

Nicolaas Maartens

[19] Mr Maartens is currently the Chief Commercial Officer at YBF and commenced with the business in November last year. Mr Bagheri reported to him in that role. Mr Maartens had concerns from the outset about Mr Bagheri’s conduct and performance and was particularly frustrated by his lack of respect for deadlines. He was also concerned about various examples of his inappropriate behaviour, and on each occasion Mr Bagheri had received counselling and warnings about these matters. He was also aware that Mr Bagheri had previously received warnings about his conduct and performance.

[20] On 23 August 2018 Mr Maartens and Mr Farley Blackman, the Chief Executive Officer at YBF, met with Mr Bagheri and told him that they continued to be dissatisfied with his behaviour and performance. It was also made clear that if there was no improvement his employment would be terminated. However, Mr Maartens was subsequently made aware of an incident concerning Mr Bagheri and a junior employee, which occurred on the following day, and left him “deeply concerned by the allegations” 7 involved.

[21] On 28 August 2018 Mr Maartens again met with Mr Bagheri and told him that the executive team had again reflected on his conduct and behaviour, and it had been decided to terminate his employment. Mr Bagheri did not take issue at this point with the claims made about him, but did challenge the nature of the performance plan previously agreed upon, based on the fact it had not been signed. Mr Maartens indicated in response that he would obtain further advice from HR about this before confirming his decision.

[22] He subsequently sent a series of further text messages to Mr Bagheri including the message at 5.07 pm which indicated, in part, that it had been “…decided to bring things to closure today.” 8 He then received a text from Mr Bagheri indicating he was happy to correspond by email. Mr Maartens then sent a further email to him at 5.57 pm that evening confirming the decision to terminate his employment. A further letter was then sent on the following day confirming his termination with effect from 28 August 2018.

[23] Mr Maartens also indicated in his witness statement that YBF had 12 employees at the time Mr Bagheri was dismissed, and two of the individuals named in the list of employees by Mr Bagheri were in fact non–executive Directors who were not employed by YBF.

[24] He also indicated in cross examination that after the initial discussion with Mr Bagheri on 28 August he decided to seek further advice from HR, and it was possible at that point that he may not have proceeded to terminate Mr Bagheri depending on the advice received. However, after obtaining the advice the decision to terminate his employment was “revalidated,” 9 and this was confirmed with Mr Bagheri in the text message and email sent to him later that day. There was therefore no confusion about the decision that had been made.

The Respondent’s Submissions

[25] YBF submits at the outset that the application was lodged one day out of time because the dismissal took effect on 28 August 2018 and the application was not filed until 19 September 2018. In its submission Mr Bagheri was put on notice on 28 August that he could expect the termination of his employment to be confirmed later that day, and this was subsequently communicated to him in the email forwarded at 5.57 pm that evening.

[26] It continues to submit that there are no exceptional circumstances that warrant an extension of time being granted but, in the alternative, if the Commission finds there are exceptional circumstances then they are not sufficient to warrant an exercise of the Commission’s discretion to extend time. It highlights the following matters in its submissions.

•  Mr Bagheri met with his legal representatives on the day following his dismissal. He could have given instructions to file an unfair dismissal application immediately but instead elected to delay making application. He is therefore partly responsible for the fact the application was not filed within time.

•  Mr Bagheri claims that he delayed making application because he was waiting on a response from YBF to his request to be reinstated. However, this was an unreasonable expectation, given his previous conduct and performance, and should not be accepted as a credible explanation for the delay.

•  Mr Bagheri’s travel arrangements were foreseeable and he should have taken measures prior to his departure to ensure his unfair dismissal application was filed within time. He could also have postponed his trip, given the circumstances involved.

•  His representative’s claims about workload do not provide a credible reason for the delay in making application.

•  However, if the Commission concludes that representative error occurred this does not, of itself, provide sufficient reason to grant an extension of time. In particular, Mr Bagheri’s conduct was a sufficient contributing factor to the late filing of the application. YBF relies on the decision in Clark v Ringwood Private Hospital 74 IR 413 in this context. It notes, in particular, that there is no evidence that Mr Bagheri took any action to pursue his claim in the period from 29 August 2018, when he first met with his representative, and 17 September 2018 when he finally gave instructions for the application to be filed.

[27] YBF also submits that the application has little merit and the dismissal was carried out in a manner consistent with the Small Business Fair Dismissal Code. It also had a valid reason for dismissal, given Mr Bagheri’s poor performance and conduct.

Consideration

[28] The first issue to be determined concerns the date on which Mr Bagheri’s employment was terminated. I am satisfied that this matter can be dealt with relatively briefly. Mr Bagheri has sought to establish that the termination date should be 29 August, being the date on which he received a formal letter of termination. However, I am satisfied that this ignores the reality of what actually occurred on the previous day.

[29] It is not necessary to recount the evidence in detail but it indicates, in summary, that Mr Bagheri was told in a meeting with Mr Maartens on 28 August that it had been decided to terminate his employment. However, he then raised a procedural matter which Mr Maartens decided required further clarification from HR. After obtaining this clarification Mr Maartens then sent a further text message to Mr Bagheri indicating it was intended to bring matters to a close on that day. He was also told that the preference was to have a further face-to-face meeting, but Mr Bagheri indicated this was difficult and his preference was to communicate electronically. YBF accordingly sent him a further text message and then a detailed email, which has been set out previously in this decision, which both confirmed his employment was terminated with immediate effect. Mr Bagheri did not attend at work after 28 August 2018.

[30] The text message and the subsequent email were sent to Mr Bagheri at 5.07 pm and 5.57 pm on 28 August. Mr Bagheri claims that he cannot be considered to have been dismissed on that day because these communications were sent outside of his normal working hours. However, I am not aware of any authority that has established that an employee can only be advised of their termination between what might be described as the traditional ‘nine to five’ working day. The evidence also indicates that both the business and Mr Bagheri typically worked a variety of flexible hours, and Mr Bagheri had also indicated that he was prepared to participate in any further communication on that day by electronic means.

[31] I am satisfied, in conclusion, that the evidence makes clear that Mr Bagheri’s employment was terminated on 28 August, and further that he clearly understood this was the case. It follows that his unfair dismissal application was lodged one day after the conclusion of the 21 day time period. The Commission must now consider whether it is appropriate to exercise the discretion available to it to extend time in which to make application.

[32] As indicated, the Commission is required to take account of each of the matters in s.394(3) in deciding whether “exceptional circumstances” exist to warrant an exercise of that discretion. Both parties made reference in this context to the Full Bench decision in Nulty v Blue Star Group (Nulty). 10 It was handed down in the context of a general protections application, however, the principles set out have been held to be of wider application. The relevant extracts from the Full Bench decision in terms of the present application are at [13] and [14] as follows:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 11

[33] The decision accordingly makes clear that “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. They should also be circumstances that are out of the ordinary course, unusual, special or uncommon. However, they need not be unique, unprecedented, or very rare, but should be circumstances that are not regularly, routinely, or normally encountered. I now turn to deal with the circumstances in this matter, and the submissions and evidence of the parties, by reference to the decision in Nulty and the matters in s.394(3) I must have regard to.

(a) the reason for the delay

[34] Mr Bagheri submits that the reason for the delay in lodging was simply due to representative error in circumstances where he had obtained advice promptly, and confirmed his instructions about the strategy to be followed, which included the possibility of an unfair dismissal application being lodged on his behalf if agreement could not be reached about him being reinstated. However, YBF submits in response that these circumstances do not simply involve a case of representative error, and Mr Bagheri’s behaviour and conduct were instead a significant contributor to the delay in lodging.

[35] The submissions make reference to the Full Bench decision in Clark v Ringwood Private Hospital. 12 It established what have been described as “general propositions” to be considered when representative error is relied upon to support an application for an extension of time. The Full Bench stated:

“…the following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:

(1) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

…

(2) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

…

(3) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of his/her representative and took no steps to inquire as to the status of his/her claim. A different situation exists where an applicant gives clear instructions to his/her representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(4) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s 170CE(8).” 13

[36] I am satisfied that these principles are appropriate to be applied to the determination of this matter.

[37] The evidence makes clear that Mr Bagheri acted promptly following his termination, and on the following day sought advice from his legal representatives. An approach and strategy was agreed to at that time. It involved his legal representatives firstly approaching YBF with the intention of seeking to have Mr Bagheri reinstated. This strategy was initially pursued because reinstatement was of particular importance to him, given it was critical to his application for permanent residency in Australia. However, his instructions also made clear that if reinstatement was not agreed to then an unfair dismissal application was to be lodged on his behalf.

[38] Mr Bagheri’s circumstances were then complicated by the fact he had a long-standing overseas trip booked, and he left Australia on 31 August 2018. However, the evidence also indicates that he was monitoring emails and other communications while he was away, and after being contacted by his legal representatives he responded on 17 September and confirmed his instructions for an unfair dismissal application to be lodged on his behalf. However, this application was not lodged until 19 September, primarily due to the mistaken belief by his legal representatives that this date was still within the 21 day period following his termination.

[39] As indicated, YBF submits that Mr Bagheri was responsible in a significant way for the delay in lodging. It submits, firstly, that his initial strategy in seeking reinstatement was unreasonable because it was almost certain to be unsuccessful, given the previous issues to do with his behaviour and conduct. The Commission acknowledges in response that reinstatement was unlikely to be agreed to by YBF. However, the priority placed on reinstatement by Mr Bagheri can also be understood, given its significance in his attempts to gain permanent residency in Australia.

[40] YBF also criticises Mr Bagheri for leaving Australia, and submits that if the issues surrounding the termination of his employment were of such significance then he should have deferred his travels. However, the difficulties associated with postponing or deferring long-standing travel arrangements can also be readily understood, and Mr Bagheri appears to have left clear instructions before departing. He also ensured that he could be contacted while he was away and he did in fact respond to messages received from his legal representatives.

[41] As indicated, on 17 September he confirmed his original instructions for an unfair dismissal application to be lodged on his behalf, although Mr Franklin indicated in his evidence that this confirmation was not actually required, and the firm would have proceeded to lodge an unfair dismissal application on Mr Bagheri’s behalf in any case, based on the original instructions provided by him on 29 August.

[42] I am not convinced in these circumstances that the blame for the delay in lodging can be attributed to Mr Bagheri. He clearly acted promptly to obtain legal advice following his termination, and agreement was reached about a strategy that involved an unfair dismissal application being lodged on his behalf if his priority objective of reinstatement could not be agreed to. It is difficult to know what more he could be expected to have done in these circumstances. I am accordingly satisfied that he was entitled to conclude that as a consequence of his instructions an unfair dismissal application would be lodged in accordance with the relevant statutory requirements if reinstatement could not be agreed upon. I have also had regard to the decision in Robinson v Interstate Transport Pty Ltd 14in this context. The Applicant in that matter gave clear directions to his legal representative to make application on his behalf, and the delay in lodging was subsequently due to the solicitor overlooking a reminder on the firm’s case management system. This occurred despite the fact that after providing instructions to his legal representative the Applicant did little from that point to enquire about progress of the matter. The application was dismissed at first instance and the decision appealed. The Full Bench, firstly, noted with approval of the approach adopted in the matter of Clark. It continued to indicate:

“[29] We find that the Commissioner erred in diminishing the significance of the representative error on the basis that Mr Robinson was inactive between 13 May 2010 and 18 June 2010.” 15

[43] It continued to indicate in the next paragraph :

“[30] …It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.” 16

[44] It continued:

“[36] We find that there was an acceptable explanation of the reason for the delay in lodgement of the application - representative error resulting from the oversight of Mr Robinson’s original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application.” 17

[45] The Full Bench accordingly upheld the appeal concluding:

“[41] …In our view, the error by Mr Robinson’s original representative, in circumstances in which Mr Robinson is blameless for the delay, constitutes an exceptional circumstance in which the application should be accepted late.” 18

[46] I am satisfied that it is also the case in the present matter that it was not Mr Bagheri’s lack of understanding about the statutory time limit that led to the delay in lodging. It was instead the mistaken belief by his legal representative about the date on which the 21 day period concluded.

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

[47] I am satisfied that the evidence makes clear that Mr Bagheri was aware that his employment had been terminated at the time the decision took effect, and this is made clear by the fact that on the following day he sought legal advice in response to what had occurred.

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

[48] As indicated, Mr Bagheri took action to dispute his dismissal by seeking legal advice and agreeing upon a strategy on the day following his termination.

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

[49] There will always be prejudice to an employer if additional time is given in which to make application, given that it will then be required to respond to the application. However, the extent of any prejudice can be said to be minimised in this case by the fact that the application was only lodged one day out of time.

(e) the merits of the application

[50] The submissions provided on behalf of Mr Bagheri note that the relevance of the issue of “merit” when determining an application for an extension of time has been considered in previous Commission decisions, including in the Full Bench decision in Kyvelos v Champion Socks Pty Ltd (Kyvelos) 19 when dealing with similar legislative provisions to those now contained in the Fair Work Act 2009 (Cth). The Full Bench determined in that matter:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 20

[51] It concluded by stating:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 21

[52] The merits of the present application are hotly contested based on the available evidence now before the Commission. Mr Bagheri indicated in his evidence that he had not previously received any warnings about his conduct or performance. This contrasted starkly with the evidence of Mr Maartens, who indicated there had been a number of significant issues to do with Mr Bagheri’s conduct and performance, and he was spoken to about these matters as recently as 23 August, being only a short time prior to the day on which his employment was finally terminated.

[53] However, given the extent of the evidence currently before the Commission it is not possible to come to a definitive conclusion about whose evidence should be preferred in regard to the issue of merit. In addition, having regard to the decision in Kyvelos I am satisfied that the Commission is not required to take this matter any further at this time.

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

[54] This matter does not appear to be of any particular significance in the context of the present application.

Conclusion

[55] I am satisfied, in conclusion, for the reasons indicated that Mr Bagheri can be considered blameless for the fact that his unfair dismissal application was not lodged within time. He did what could be expected of someone in his circumstances and was entitled to assume that an application would be lodged on his behalf in accordance with the relevant statutory requirements.

[56] The fact that this did not occur was due to the failure of his legal representatives. The failure by a legal representative to act in accordance with the requisite statutory requirements is not necessarily a unique occurrence. However, as the decision in Nulty makes clear “exceptional circumstances” need not be “unique, unprecedented, or very rare.” Mr Bagheri gave instructions on the day following his termination for an unfair dismissal application to be lodged on his behalf. He subsequently confirmed those instructions at his representative’s request in sufficient time for an application to still be lodged within time. However, this did not occur. I am satisfied in response that these are “exceptional circumstances.” I am also satisfied in all circumstances, and having regard to the various considerations in s.394(3) that the Commission must take into account, that it is appropriate to exercise the discretion to grant Mr Bagheri additional time in which to make application. An order to this effect will be issued in conjunction with this decision. The matter will also now be referred back to the Unfair Dismissal Case Management Team to enable it to be listed again in order to deal with the substantive application.

COMMISSIONER

Appearances:

J Tierney of Counsel for the Applicant.

M Stirling of Gilchrist Connell for the Respondent.

Hearing details:

2018.

Melbourne:

November 9.

Printed by authority of the Commonwealth Government Printer

<PR703606>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Witness Statement of Sahand Aghdam Bagheri, dated 26 October 2018, [2].

 3   Ibid, Attachment “A”.

 4   Ibid, Attachment “B”.

 5   Ibid, Attachment “C”.

 6   Transcript, PN70.

 7   Witness Statement of Nicolaas Maartens, dated 2 November 2018, [18].

 8   Ibid, [24].

 9   Transcript, PN239.

 10   [2011] FWAFB 975.

 11 Ibid, [13]-[14].

 12 (1997) 74 IR 413.

 13   Ibid, 418-420.

 14   [2011] FWAFB 2728.

 15   Ibid, [29].

 16   Ibid, [30].

 17   Ibid, [36].

 18   Ibid, [41].

 19   Print T2421, 10 November 2000 per Giudice P, Acton SDP and Gay C.

 20   Ibid, [14].

 21   Ibid.