Sameer Momin v Mediq Wallan Medical clinic
[2017] FWC 1348
•14 MARCH 2017
| [2017] FWC 1348 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Sameer Momin
v
Mediq Wallan Medical clinic
(C2017/985)
DEPUTY PRESIDENT DEAN | SYDNEY, 14 MARCH 2017 |
Application to deal with contraventions involving dismissal – extension of time.
[1] Dr S Momin (the Applicant) was employed by Mediq Wallan Medical Clinic (the Respondent). He alleges that the termination of his employment by the Respondent was in breach of the general protections provisions of the Fair Work Act 2009 (the Act). The Respondent denies the allegations and contends that the Applicant’s dismissal was the outcome of an investigation into a complaint made against him by a patient.
[2] The Applicant commenced employment with the Respondent on 19 October 2015. On 13 November 2016 the Applicant was advised of his dismissal with an effective day of 11 January 2017. The Applicant’s general protections application lodged on 21 February 2017 was therefore made some 20 days outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).
[3] The matter was listed for hearing by telephone on 10 March 2017 with respect to the extension of time issue. At the hearing, the Applicant appeared on his own behalf. Dr S Shubbar appeared for the Respondent. The Applicant gave oral evidence and each party submitted a written outline of argument.
[4] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.
[5] Section 366 of the Act provides:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd1 where 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.”
[7] I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
[8] The Applicant submitted that the reason for the delay was a result of factors which include:
a. That he was suffering from a ‘newly diagnosed’ medical condition;
b. That he was busy looking for new work;
c. That he lost two weeks while communicating with a law firm.
[9] Attached to the Applicant’s outline of arguments is a copy of a letter from Dr De Alwis of North West Melbourne Medical Specialists dated 9 February 2017. The letter states that the Applicant was at the time being treated for a thyroid condition and due to the condition, that ‘his day to day activities and performance may have been affected for the past few months.’
[10] The Applicant gave evidence of his medical issues, that he was upset and stressed, and that he was confused about whether he was an employee or independent contractor.
[11] In considering whether the reason for the delay amounting to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay 2. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application3. The 21 day period in this matter ended on 1 February 2017.
[12] The Applicant contended that his health condition was a factor warranting an extension of time. However, there is no evidence to support the Applicant’s contention that his health condition was impacted to such an extent that he was incapable of filing the application until 21 February 2017. I am not satisfied that the letter from the Applicant’s treating doctor dated 9 February 2017 has done that.
[13] In addition, it is the Applicant’s own evidence that during this same period he was busy searching for new positions and communicating with a law firm.
[14] It appeared that the Applicant was capable of lodging the application within the prescribed period but did not do so. Mere ignorance of the statutory time limit is not an exceptional circumstance and it is common for dismissed employees to be unaware of the time limits imposed in relation to making an application for a general protections application. 4
[15] I find that none of the matters addressed by the Applicant could be considered ‘exceptional’. This weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
[16] There is no evidence that the Applicant took any steps to contest the termination until the filing of this application, apart from making some enquiries with a law firm. This weighs against the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[17] There was no evidence that the Respondent would suffer prejudice if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[18] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’5
[19] The Respondent strongly repudiates the allegations made by the Applicant and denies any breaches of general protections provisions of the Act. It maintains that the Applicant was terminated after the investigation of a complaint made against him.
[20] The Respondent also asserts that the Applicant was an independent contractor and not an employee.
[21] On the material before me, I am unable to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[22] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm6 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’7
[23] The Applicant submitted that his situation was particularly unfair given the process he was required to undergo to find another position. He did not elaborate on what this process was.
[24] There was no evidence that there were any persons in a similar position and I find it to be a neutral consideration.
Conclusion
[25] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On this basis, the application is dismissed.
[26] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
S Momin on his own behalf.
S Shubbar for the Respondent.
Hearing details:
2017.
Sydney and Melbourne (by telephone):
March 10.
1 [2011] FWAFB 975.
2 [2010] FWAFB 7251.
3 [2015] FWCFB 287.
4 [2011] FWAFB 975 at [14].
5 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
6 [2015] FWC 8885.
7 Ibid at [29].
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