Sohier Menkeryous v Eden on the Park

[2020] FWC 4811

[2020] FWC 4811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sohier Menkeryous
v
Eden on the Park
(U2020/11271)

Wagdy Menkeryous
v
Eden on the Park
(U2020/11272)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 8 SEPTEMBER 2020

Application for unfair dismissal remedy – Jurisdiction – Extension of Time – Application dismissed.

Introduction

[1] Sohier Menkeryous commenced employment with Eden on the Park, on or about 24 April 1997. Wagdy Menkeryous commenced employment with Eden on the Park, on or about 17 October 2005. They were employed in the position of House Keepers. The reason given by the Respondent for the decision to terminate the applicant’s employment was by way of redundancy. The applicants applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 19 August 2020.

[2] I have had regard to all written submissions and oral submissions put to me during the Jurisdiction (Extension of Time) Conference on 4 September 2020.

[3] I reserved the right to public written reasons for decision, and this is my decision.

Application was filed outside the statutory timeframe

[4] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect as required by s.394 of the Act.

[5] The Applicant’s employment was terminated by the Respondent with effect from 8 July 2020. I note that the Applicants contended that their employment was terminated on 2 July 2020. The termination letters that were provided to the Applicants indicate that they were notified of the redundancies on 3 July 2020, with the dismissal taking effect on 8 July 2020, and payment in lieu for the remainder of the notice period.

[6] Based on a termination date taking effect on 8 July 2020, the application for a remedy should have been lodged by no later than 29 July 2020.

[7] The application was therefore lodged outside of the time prescribed. The application was made in effect 21 days after the last date on which it could have been made. The Act allows 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.

[8] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay,

•  whether the Applicant first became aware of the dismissal after the date it took effect,

•  any action taken by the Applicant to dispute the dismissal,

•  prejudice to the Respondent including prejudice caused by the delay,

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[9] Each of the 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 1

[10] Briefly, 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. 2 I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

[11] I now consider these matters in the context of the Application.

a) Reason for the delay

[12] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[13] The applicants contend that they became aware of certain facts, or what they believed to be certain facts on 12 August 2020. Thereupon the applicants filed an application on 19 August 2020. It appears that the applicants believe that they were not redundant and that others took their positions. It appears that there has been a restructuring of the employer and the jobs have been reallocated and mixed.

[14] In Ulan Coal Mines Limited v Henry Jon Howarth 4 and others the Full Bench considered what redundancy was and makes it clear that the sort of restructuring, for example, where there a supervisory team leader position is replaced by three team leader positions or other types of re-organisational work is an appropriate type of redundancy.

[15] This is what the employer says took place in this matter. Namely, a form of restructuring by breaking up the collection of functions, duties and responsibilities attached to positions and distributing them among the holders of other positions, including newly created positions but also that one of the two hotels was closed. In this sense, there may well not be a difficulty present in finding that there was a genuine redundancy seen in the sense of the type of restructuring that took place. The belief that the applicants held that others had taken their jobs may well not be the case.

[16] In any event, the test is whether this is a reasonable explanation for the delay. I find that it is not a reasonable explanation and it is not an explanation that is out of the ordinary course, unusual, special or uncommon. On the contrary, it is quite common where redundancies occur for applicants to become aware of certain facts later through gossip or fact. Either way, it is not an out of the ordinary explanation for the delay. I also note that ignorance of the law is no defence.

[17] In the circumstances, I am not satisfied that the applicants have provided an acceptable explanation for the delay and that is a matter that weighs against the Applicants in this case.

b) Whether Applicant first became aware of the dismissals after the date it took effect

[18] Turning then to the question of whether the applicants first became aware of the dismissals after it took effect, the evidence is that the applicants became aware of the dismissal when they received the letters of termination shortly after they were sent.

[19] In the circumstances, that is a matter that weighs against the Applicant. There was no delay in them becoming aware of the dismissals.

c) Action taken by the Applicant to dispute his dismissal

[20] Turning next to the question of the action taken by the Applicant to dispute their dismissal. It appears that there was no action taken by the applicants to dispute the dismissal at the time it was delivered.

[21] In the circumstances, that is a matter that weighs against Applicants.

d) Prejudice

[22] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.

[23] The employer submitted they would be prejudiced if an extension of time was granted as there were many redundancies effected within the business and it could lead to exposure of further claims being lodged outside the statutory time frame.

[24] The applicant said that there would be no prejudice to the employer as there were not 60 housekeeping staff employed at Bayview Eden on the hotel as was currently closed.

[25] In the circumstances, I prefer the view of the employer in that it may well be prejudicial to the employer that an extension of time be granted. Namely, other employees seeking to act in the same way and lodge applications. This is a matter that weighs against the applicant in the instant case.

e) Merits of the application

[26] As to the merits of the application, this is a neutral consideration in this matter. The merits would require full hearing of the circumstances of redundancies and restructure and there is no evidence submitted in relation to this.

f) Fairness as between the Applicant and other persons in a similar position

[27] As to fairness between the applicant and other persons in a similar position, there do seem to be others in a similar position and this may well be a neutral consideration as well, namely that is neither counts for or against the applications. In the alternative, it challenges against the applications because there are a number of others who may wish to make similar applications.

Conclusion

[28] Statutory time limits applying to the exercise of a person’s ability to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that such applications should be taken promptly to ensure certainty. Time limits seek to balance the ability to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the ability to bring the action will be lost.

[29] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[30] I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to this effect is contained in PR722611.

DEPUTY PRESIDENT

Appearances:

Sylvanna Menkeryous, on behalf of the applicants
Sohier Menkeryous, applicant
Wagdy Menkeryous, applicant

Sally Stonier, on behalf of the respondent
Peter Pysk, respondent
Ann-Maree Jolley, respondent

Hearing details:

2020.
Melbourne (via Teleconference)
4 September 2020.

Printed by authority of the Commonwealth Government Printer

<PR722610>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 4   [2010] FWAFB 3488.