Salauzzaman Khan v AKS Security

[2020] FWC 5063

[2020] FWC 5063

FAIR WORK COMMISSION

EX-TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Salauzzaman Khan
v
AKS Security
(U2020/10412)

DEPUTY PRESIDENT BULL SYDNEY, 24 SEPTEMBER 2020

Application for unfair dismissal remedy – application made out of time – confusion regarding Fair Work Commission and Fair Work Ombudsman – extraordinary circumstances not established – application dismissed.

[1] This matter was heard before me on 10 September 2020 and later on the same day delivered my decision on transcript. As advised at the time, a published decision would issue; this is now the published version of the decision, edited for style and clarity. 1

[2] Mr Salauzzaman Khan has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The application was lodged on 31 July 2020. Mr Khan states he has been employed with AKS Security since 6 September 2016 and was employed as a Security Guard.

Background

[3] Mr Khan has stated in his Form F2 unfair dismissal application that he was dismissed on 6 July 2020 and that his dismissal took effect on the same day. At the time of his dismissal he was working at the Central Park Shopping Centre in Chippendale, New South Wales.

[4] On 27 August 2020 Mr Kabbara, a director of AKS Security Group, sought an extension of time to file the Form F3 employer response. Later that day an employer response was filed which named Mr Ahmad Kabbara as the employer trading as AKS Solutions Group, and which opposed Mr Khan’s application on three grounds:

1. the application is filed out of time;

2. they are not his employer; and

3. the employer is a small business employer and complies with the Small Business Fair Dismissal Code.

[5] During the hearing Mr Youcef Kabbara, on behalf of the respondent, stated that the correct employer of Mr Khan was MES Security Pty Ltd. For the purposes of this application the respondent will be referred to as AKS.

Application filed outside the statutory timeframe

[6] The Act requires unfair dismissal applications to be filed within 21 days of a dismissal taking effect. Sub-section 394(2) of the Act states as follows:

“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).”

[7] Calculating 21 days from the date of the dismissal, being 6 July 2020, the applicant had until 27 July 2020 to file his application, which was not filed until 31 July 2020 and is therefore four days outside the prescribed period.

[8] The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[9] The applicant has made an application for the Commission to extend the time for filing his application. In addition to his application, Mr Khan has forwarded at the Commission’s request written reasons in support of his application seeking an extension of time in which to file his application.

Ability to extend time for filing

[10] In respect to the Commission’s ability to extend time for filing, sub-s.394(3) of the Act sets out the circumstances that provide for the Commission to grant an extension of time for an applicant to file their unfair dismissal claim. Sub-section 394(3) of the Act is in the following terms:

“(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.”

(My underline)

[11] Each of these matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. Individual matters might not, when viewed in isolation, be particularly significant so it is necessary to also consider the matters collectively and to ask whether, collectively, the matters show exceptional circumstances.

[12] The Full Bench of the Commission in Lombardo v Commonwealth of Australia 2 described the Commission’s decision-making process under sub-s.394(3) of the Act as follows:

“The test for granting an extension of time involves a broad discretion and a high hurdle of exceptional circumstances.”

[13] The meaning of exceptional circumstances was considered in Nulty v Blue Star Group Pty Ltd 3 where the Full Bench stated:

“In summary the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional circumstances must not 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 will be. Nor is it correct to construe the plural circumstances as if it were only a single 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] As can be seen, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. The Commission must be satisfied that, taking into account all of these factors, there are exceptional circumstances.

Consideration

The reason for the delay

[15] In considering the matters that the Commission must take into account, the first issue to be addressed is the reason for the delay.

[16] Mr Khan provided reasons as to why his application should be accepted outside the prescribed period in his initial application and in subsequent emails. Relevantly, Mr Khan states that:

•  He was not aware of the two different entities of ‘Fair Works’ and that he submitted his application to the Fair Work Ombudsman in the first instance. Being a new immigrant, he was not familiar with the different government bodies which resulted in the delay.

•  It was not until he received a telephone call from a Fair Work Ombudsman (FWO) Case Officer on 31 July 2020, that he became aware that there was a separate entity called Fair Work Commission. As a result, he immediately filed his unfair dismissal application with the Fair Work Commission.

[17] There was no documentation accompanying Mr Khan’s justification for his late filing. The hearing was, at the Commission’s initiative, briefly adjourned to allow Mr Khan to supply any documentation in support of his alleged unfair dismissal application with the FWO prior to the expiration of the 21-day time period.

[18] Mr Khan has provided email correspondence between himself and a Case Officer from the FWO. Unfortunately, the documentation does not confirm that Mr Khan had mistakenly made an unfair dismissal application with the FWO within the 21-day time period, or at any time.

[19] It is clear that Mr Khan had at least contacted the office of the FWO regarding his pay rates by 15 July 2020, when he was referred by an FWO Case Officer in an email to a number of websites regarding wage rates and the calculation of wage rates.

[20] Mr Khan has provided a further email, dated 29 July 2020, from the same FWO Case Officer, which indicates he was making enquiries about his payments, and the FWO Case Officer requested copies of bank statements, any communications from the business directing him to work, and any details stating if he did or did not provide his tax file number or his Australian Business Number to the business.

[21] Mr Khan provided a further email, dated 31 July 2020, from the same FWO Case Officer, which refers to a discussion on the same day, and provided a link to a website suggesting that he have a look at the information regarding unfair dismissal.

[22] Mr Khan confirmed that this was the first occasion when the issue of unfair dismissal was discussed with the FWO’s office.

[23] I have no difficulty accepting Mr Khan’s contention that he was confused between the two statutory bodies known as the Fair Work Commission and the Fair Work Ombudsman. Such confusion in matters that come before the Commission as presently constituted are a regular occurrence. In a report to the then Minister of Employment and Workplace Relations in June 2012 4 it was recommended that the Fair Work Commission, then named Fair Work Australia, have its title amended to include the word “Commission” and that it no longer contain the words “Fair Work”. The words “Fair Work” are still contained in the Commission’s title and remain a source of confusion to parties appearing in the Fair Work Commission with the statutory authority known as the Fair Work Ombudsman.

[24] Despite Mr Khan’s confusion there is no evidence that he attempted to file an unfair dismissal application with the FWO at any time. He has contacted the FWO regarding alleged ‘short payments’ and was asked to provide further information. On 31 July 2020, following discussions on the same day, he was provided with a website link regarding how to file an unfair dismissal.

[25] This matter can be distinguished from Patricia Bucknor v Aero-Care Flight Support Pty Ltd, 5 where exceptional circumstances were found to exist to allow for an extension of time to file an unfair dismissal application. In that case, the applicant had posted her unfair dismissal application within the prescribed time to the office of the FWO in error.

[26] Mr Khan further states that, being an immigrant, he is not familiar with different government bodies. I note that Mr Khan is an Australian citizen and, on his evidence, has been in Australia for six years and nine months. On what has been put by Mr Khan, I am not satisfied that he has provided an explanation for the delay that, on its own, establishes exceptional circumstances.

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

[27] In respect to whether Mr Khan first became aware of the dismissal after the date it took effect, Mr Khan states that he was notified of his dismissal on the day that it took effect and therefore he had the full period of 21 days to lodge his unfair dismissal application.

Any action taken by the person to dispute the dismissal

[28] In respect to disputing his dismissal, Mr Khan submits that representatives from AKS requested him not to file any application regarding his complaints, that they would sort them out. Mr Ahmad Kabbara stated that this request was not made, and that Mr Khan was told he should contact his employer MES Security.

[29] It is clear that Mr Khan has taken some action in regard to alleged underpayments by contacting the FWO and has provided to AKS a document summarising his alleged unpaid wages, which Mr Khan states was sent on 17 July. There is no written evidence of any unfair dismissal claim having been raised.

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

[30] In respect to prejudice to the employer, while the respondent, however named, disputes that they are the employer, there is nothing to suggest that the granting of a further period in which to file the application would result in any prejudice to AKS in granting the application.

The merits of the application

[31] As to the merits of the application, Mr Khan states that the decision to dismiss him was pre-planned and that the Security Manager tried to intimidate him to make him angry which led to his dismissal. AKS states that it was requested by his employer to ask Mr Khan to leave the worksite as a result of his aggressive and threatening conduct. These matters can only be dealt with by way of a hearing where the evidence of both parties can be tested under oath. As such, this is a neutral factor in considering whether exceptional circumstances exist in this case.

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

[32] As to fairness between the applicant and other persons in a similar position, neither party addressed this factor, and the Commission is not aware of any persons or cases that are relevant to the question of fairness between Mr Khan and any other persons in a similar position. I consider this also to be a neutral consideration in the present matter.

Conclusion

[33] It is noted that the statutory time limit applicable to the exercise of an employee’s right to bring an unfair dismissal application is an expression of parliament’s intention that this right should be exercised properly, so as to bring about certainty. The time limit seeks to balance the right to bring an action against the desirability of prompt action and certainty. The reason for the time limit is that parties should be able to know that, if there is a question about a dismissal, the right to question that action will be exercised promptly and, unless exceptional circumstances exist, the right to bring that action will be lost.

[34] The High Court in Brisbane South Regional Health Authority v Taylor 6 stated under the opinion of McHugh J, with whom Dawson J agreed, after reviewing the rationale for limitation periods that:

“a limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or general welfare of society. It represents the legislator’s judgment that the welfare of society is best served by causes of action being mitigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. A limitation period is the general rule and extension provision is exception to it. The extension provision is a legislative recognition and general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”

[35] In the same decision Toohey and Gummow JJ’s stated:

“The ultimate onus of satisfying the court that time should be extended remains on the applicant.” 7

[36] All the factors outlined in sub-s.394(3) of the Act, which I have now gone through, must be considered when deciding whether or not exceptional circumstances have been established to warrant the exercise of the Commission’s discretion to extend the time for filing an out of time unfair dismissal application.

[37] I have considered all of the matters which the Commission is required to take into account and, while acknowledging that the delay is not great, I am not satisfied that there are any factors in isolation or in combination that justify a finding of exceptional circumstances which would warrant the Commission granting an extension of four days to the statutory time limit for the lodgement of Mr Khan’s unfair dismissal application.

[38] The circumstances disclosed by the material and submissions advanced by Mr Khan are not out of the ordinary course, unusual, special or uncommon and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for filing the application. Mr Khan is able to proceed in any underpayment claim he may have with his true employer whether that is AKS Solutions Group, AKS Security, Mr Kabbara or MES Security Pty Ltd.

[39] I, therefore, decline to grant an extension of time under sub-s.394(3) of the Act and the application for an unfair dismissal remedy must therefore be dismissed as having been filed outside the legislative time period.

DEPUTY PRESIDENT

Appearances:

Mr S Khan on his own behalf
Mr A Kabbara and Mr Y Kabbara on behalf of the respondent

Hearing details:   

Sydney by telephone 8

2020

10 September

Printed by authority of the Commonwealth Government Printer

<PR722956>

 1   See extra curial publication (1997) 9 Judicial Officers’ Bulletin, per Gleeson CJ at 25

 2   [2014] FWCFB 2288 at [21]

 3   2011] FWAFB 975 at [13]

 4   See Towards more productive and equitable workplaces - An evaluation of the Fair Work legislation 2012 at Chapter 12 Fair Work Australia and Fair Work Ombudsman at page 251; Ron McCallum and others

 5   [2012] FWA 9059

 6 (1996) 186 CLR 541 at [7]

 7   Ibid, at [13]

 8   The hearing was conducted by telephone due to the Fair Work Commission’s COVID-19 social distancing requirements, with both parties also in attendance by telephone for the duration of the delivery of the Decision