Shafiqul Azam v Aruma Services
[2022] FWC 1549
•21 JUNE 2022
| [2022] FWC 1549 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shafiqul Azam
v
Aruma Services
(U2022/5419)
| COMMISSIONER MCKINNON | SYDNEY, 21 JUNE 2022 |
Application for an unfair dismissal remedy – application filed out of time – whether additional time should be allowed.
Mr Shafiqul Azam was employed by Aruma Services from 5 October 2017 until 23 March 2022. He had previously been employed by the NSW Department of Family and Community Services since 1998. This prior period of service carried over to Aruma when he became its employee. On 23 March 2022, Mr Azam was dismissed for serious misconduct after a lengthy period of investigation, suspension, reinstatement, further investigation, suspension and eventually, dismissal over concerns about his interaction with a client in January 2021.
Mr Azam applied for an unfair dismissal remedy on 12 April 2022. The application was not accompanied by the filing fee and no waiver of the fee was sought or granted. The application was dismissed on 6 May 2022 after repeated attempts to complete payment of the application fee were unsuccessful.
Mr Azam applied again for an unfair dismissal remedy on 16 May 2022 in relation to the dismissal. His second application is 33 days late. The question is whether additional time should be allowed for Mr Azam to make this application to the Commission.
I have decided to allow an additional period for Mr Azam to make the application. These are my reasons.
Extension of time
An application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, under section 394(2), additional time may be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.”
The matters that must be considered when deciding whether to grant additional time are set out in section 394(3) of the Act. These are:
the reason for the delay
whether the person first became aware of the dismissal after it had taken effect
any action taken by the person to dispute the dismissal
prejudice to the employer (including prejudice caused by the delay)
the merits of the application, and
fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay: Mr Azam submits that he was not aware that the filing fee had not been paid until he received notice from the Commission on 6 May 2022 that his first application had been dismissed. The Commission’s records show that a single text message was sent to Mr Azam’s mobile number on 13 April 2022 with the words “Please call Fair Work Commission re U2022/4299 to pay the application fee”. Mr Azam says he did not receive the text message. The conflict is not explained. There was no further correspondence from the Commission directly with Mr Azam before his application was dismissed.
Presumably, the reason for this lack of communication was that Mr Azam had nominated a representative on his application, the CPSU, the Community and Public Sector Union. An instruction in the covering email to his application – underlined and in bold, stated “For payment options please contact CPSU NSW Industrial Officer Elise Esquenazi on XXXX XXXXX X” [number redacted]. On 13 April 2022, the Commission sought to contact Ms Esquenazi about payment of the filing fee by email as well as by text message and telephone on the mobile phone number provided. No response was received. A further telephone call was made to Ms Esquenazi on 27 April 2022. Again, no response was received. The application was then dismissed as incomplete at 2.31pm on 6 May 2022. When Ms Esquenazi did eventually call the Commission at 5.03pm on 6 May 2022 to ask about payment of the filing fee, it was too late. The application had been determined.
Mr Azam also tried and failed to contact Ms Esquenazi about the progress of his application before it was dismissed, by both telephone and email. On 2 May 2022, Mr Azam sent an email to Ms Esquenazi asking her to contact him about the progress of his application. He did not hear back from Ms Esquenazi until 8 May 2022.
On 5 May 2022, Mr Azam received an email from Sharny Chalmers, CPSU Industrial Officer, to say that Ms Esquenazi was no longer working for the union’s disability sector members; that she had taken over the case and requested that he call her back. Mr Azam called Ms Chalmers half an hour later and they discussed the case. Ms Chalmers said she would be his new support person. Mr Azam asked if she had heard anything about his application, to which she replied no. Mr Azam also said he had not heard anything.
On 8 May 2022, Ms Esquenazi spoke with Mr Azam and told him she was working on an appeal. Then, on 11 May 2022, Mr Azam was invited to a meeting with the CPSU about his application. The CPSU apologised for what had happened, explaining that it was a serious oversight. When he asked about the next steps, the CPSU told him they would not act further on his behalf for reasons of cost and prospects of success.
After the meeting, Mr Azam thought for a couple of days about what to do. He looked at the Commission’s website and decided to apply on his own for an unfair dismissal remedy. He quit the union and lodged his application.
Together, the CPSU’s status as Mr Azam’s representative, its specific instruction that Ms Esquenazi be the contact person for payment of the filing fee and its subsequent failure to either attend to payment of the fee or contact the Commission or Mr Azam to make alternative arrangements are exceptional circumstances. In the circumstances, it is surprising that the CPSU declined to provide any further assistance to Mr Azam, who had been its member for 23 years, in a bid to remedy its own failure to act diligently on his behalf.
Whether the person first became aware of the dismissal after it had taken effect: Mr Azam knew he was dismissed at the time of dismissal on 23 March 2022 in an “outcome meeting” held by Aruma to communicate its decision to dismiss to Mr Azam.
Any action taken by the person to dispute the dismissal: Mr Azam’s initial application to the Commission was made in time on 12 April 2022. His second application was made 10 days after the decision to dismiss the first application.
Prejudice to the employer (including prejudice caused by the delay): There is no apparent prejudice to Aruma if the application proceeds.
Merits of the application: While Mr Azam’s case is arguable, I cannot say confidently that he is likely to succeed or fail. Mr Azam was dismissed for allegedly slapping a client of Aruma’s disability care service and for complaining to a third party about their reporting of his alleged conduct. The slap allegation is a serious one. Mr Azam disputes the characterisation of his conduct as a slap and points to the lack of evidence available to him when responding to the allegations. He does not dispute writing to the third party about the allegations made against him.
Both parties rely on independent evidence they say will respectively corroborate or defeat the slapping allegation or establish that dismissal was not proportionate to the actual conduct. There is no such evidence before the Commission. Who will prevail in the case can only be ascertained by a hearing on the merits. It is also relevant that Mr Azam has a very long period of service and was dismissed without notice. The dismissal did however follow lengthy periods of suspension and investigation during which Mr Azam was paid without being required to work. Mr Azam last worked for Aruma in or about mid-December 2021 but was paid as if he were at work until the date of his dismissal on 23 March 2022.
Fairness as between the person and other persons in a similar position does not appear to be a relevant consideration on the materials before me, although it may be. Another staff member who was involved in the same reported incident in January 2021 was also investigated and dismissed.
Conclusion
I have found exceptional circumstances in this case relating to the failure of the CPSU to act diligently on behalf of Mr Azam in relation to payment of the filing fee for his initial application. The reason for delay weighs strongly in favour of the grant of additional time. Considerations of prejudice to Aruma, as well as the merits of the case and fairness as between the parties are, for now, neutral considerations. I give little weight to when Mr Azam knew about the dismissal and what steps he took to dispute it, in circumstances where the initial application to the Commission was made in time.
On balance, I am satisfied that it is appropriate to grant additional time to Mr Azam to make his application. The time is extended to 16 May 2022.
The matter will now be referred for conciliation.
COMMISSIONER
Appearances:
S Azam on his own behalf.
E O’Kane on behalf of the respondent.
Hearing details:
2022.
Sydney (by video):
June 20.
[1] [2011] 203 IR 1 at [13].
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