Salim Altarabulsi v Vanguardgrafx

[2015] FWC 7105

[2015] FWC 7105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Salim Altarabulsi
v
Vanguardgrafx
(U2015/11140)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Salim Altarabulsi alleged that the termination of his employment by Vanguardgrafx on 7 July 2015 was unfair.

[2] His unfair dismissal application lodged on 20 August 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

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

(a) the reason for the delay;

[5] Mr Altarabulsi submitted that difficult family circumstances and other circumstances prevented him from filing his application within time. Mr Altarabulsi gave evidence that at the time of his dismissal he had separated from his wife and had to leave home. His focus was on his daughter, reconciling with his wife and finding work. However, he did not give evidence that he was in this time required to provide care for his daughter or that she had any particular issues which he was required to address such that he was unable to lodge his application.

[6] He said he was emotionally distressed and worried about his mortgage. Mr Altarabulsi did not produce any medical evidence to support a claim that his distress prevented him from making his unfair dismissal claim.

[7] I accept that the combination of being dismissed and having marital issues would have made the situation for Mr Altarabulsi difficult, however, this does not explain the 23 day delay in lodging his application.

[8] Mr Altarabulsi’s evidence about what he was doing after his dismissal was inconsistent. He said he had approached Centrelink before August 2015 but later said it was his wife who approached Centrelink. He said he approached his superannuation fund last month.

[9] I do not consider that Mr Altarabulsi had a reasonable explanation for the whole of the delay. This weighs against a finding that there are exceptional circumstances.

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

[10] Mr Altarabulsi was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[11] Mr Altarabulsi did not dispute his dismissal at the time. This weighs against a finding that there are exceptional circumstances.

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

[12] Mr Anthony Stapleton gave evidence that having to defend the claim would cause a loss of time and money, but apart from that, no further prejudice was relied on. I do not consider that any prejudice to Vanguardgrafx is such as to weigh against a finding of exceptional circumstances.

(e) the merits of the application;

[13] Vanguardgrafx submitted that Mr Altarabulsi was not dismissed and that he verbally resigned. Mr Altarabulsi submitted that he was dismissed verbally via telephone. There was clearly a dispute about what happened on 7 July 2015. Mr Stapleton gave evidence that given they had already had one driver resign, they would not have dismissed Mr Altarabulsi as this made things very difficult for the business. There is no dispute that Mr Altarabulsi was told that he was required to work in another area. There is no dispute that Mr Altarabulsi had worked in this area before. Mr Altarabulsi gave evidence that Vanguardgrafx required him to work in two districts but did not pay him for the extra work.

[14] I am not able to make any final assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[15] No submissions were made about this criterion.

Conclusion

[16] I am not satisfied that there are exceptional circumstances. Mr Altarabulsi has not provided a reasonable explanation for the delay. Despite the lack of prejudice to the employer the other criteria are either neutral or not in favour of an extension being granted. Mr Altarabulsi’s application for an extension of time is dismissed and the matter must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Altarabulsi on his own behalf.

Mr A Stapleton for the Respondent.

Hearing details:

2015.

Melbourne and Perth (video hearing):

October 12.

 1   [2011] FWAFB 975.

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