Tony Nashar v IPA Personnel Pty Ltd T/A Part of Esh Shared Services Pty Ltd

[2015] FWC 4227

[2015] FWC 4227

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony Nashar
v
IPA Personnel Pty Ltd T/A Part of ESH Shared Services Pty Ltd
(U2015/4742)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 24 JUNE 2015

Application for relief from unfair dismissal - Extension of time.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 17 June 2015. Mr Tony Nashar made an application under s.394 of the Fair Work Act 2009 (Act) seeking an unfair dismissal remedy . The application was made outside of the time prescribed in s.394 (2)(a) of the Act and the question has arisen whether a further period should be permitted to allow Mr Nashar to make his application.

[2] Mr Nashar commenced employment with IPA Personnel Pty Ltd (IPA Personnel) in or about August of 2013. IPA Personnel is engaged in a labour hire business and at the time of Mr Nashar’s dismissal, it had assigned Mr Nashar to work at Jotun Industries. Mr Nashar’s employment was on a casual basis and as is common with labour hire firms, he would be assigned to clients of IPA Personnel as required. Mr Nashar was dismissed from his employment on 28 November 2014, being the date on which he received a letter of termination.

[3] The letter of termination sets out the employer’s reasons for dismissal and principally, the dismissal is based upon what is said to have been a loss of trust and confidence in Mr Nashar as an employee by reason of what is said to be less than honest answers given by Mr Nashar during the course of an investigation into an incident that occurred on or about 11 July 2014.

[4] To put some context around that issue, on or about 11 July 2014, Mr Nashar was involved in an incident at work whilst working at Jotun Industries. In the result he suffered an injury in relation to which he subsequently made a WorkCover claim. Thereafter, a number of statements were taken and an investigation as to the circumstances of the incident was undertaken by the employer. This culminated in a meeting between the employer and Mr Nashar on or about 29 October 2014 at which Mr Nashar’s version of events was discussed.

[5] The circumstances of the meeting are set out in Mr Penna’s statement, which is Exhibit 4 to these proceedings, and the basis upon which it is said that there were inconsistencies in the versions of events given by Mr Nashar are also set out therein. I note that in the evidence of Mr Nashar he strenuously disputes any inconsistencies and strenuously disputes the fact that he misled his employer in relation to the incident of 11 July. For present purposes and because these proceedings are interlocutory in nature, it is unnecessary for me to make any findings about which version of events I prefer and I will deal with the question of the merits of the unfair dismissal claim later.

[6] The application for an unfair dismissal remedy was made by Mr Nashar or received by the Fair Work Commission (Commission) on 10 April 2015. It is apparent that the application was signed by Mr Nashar on 30 March 2015 and thereafter dispatched to the Commission by post. Section 394 (2) requires that applications for an unfair dismissal remedy be made within 21 days after the date on which the dismissal took effect.

[7] In this case, as I have already indicated, the dismissal took effect on 28 November 2014. The application should have been lodged therefore by no later than 19 December 2014. The application was lodged in excess of three and a half months after the last date on which a valid application could have been made. Section 394 (2) also allows the Commission to allow an application to be made within a further period, provided that it is first satisfied that there are exceptional circumstances, taking into account the various matters that are set out in s.394(3).

[8] The matters which must relevantly be taken into account are the reason for the delay; whether the person, that is Mr Nashar, first became aware of his dismissal after the date on which it took effect; any action taken by Mr Nashar to dispute his dismissal; prejudice to the employer, including prejudice caused by the delay; the merits of the application; and fairness as between Mr Nashar and other persons in a similar position.

[9] As is evident by s.394, the Act allows me to extend the time within which an application may be made, but that discretion will only be considered to be exercised if I am first satisfied that there are exceptional circumstances that warrant the consideration of that discretion.

[10] It is also clear from s.394 (3) that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances and that individual matters might not, when viewed in isolation, be particularly significant. So it is necessary to consider not only the matters individually, but to ask whether collectively the matters show that in a particular case there are exceptional circumstances. Exceptional circumstances is not defined in the Act specifically, however it is generally accepted that exceptional circumstances are circumstances that are out of the ordinary course, that are unusual, special or uncommon, but the circumstances do not need to be unique or unprecedented nor do they need to be very rare.

[11] I will turn then to consider each of the matters that are set out in s.394 (3) of the Act, beginning firstly with the reason for the delay. In Mr Nashar’s application for an unfair dismissal remedy, he sets out in answer to question 1.4 his reasons for the delay in making the application. He says in that application that he was not aware of his legal right to make a claim. Once he became aware of this, he was told that he should wait until his conciliation process in relation to the WorkCover matter were finalised.

[12] He indicates that he was also under financial stress and that he and his wife had to vacate their home to lease it to tenants because of the financial pressure that they were experiencing and that the period following his dismissal was a period during which he suffered severe stress and the whole situation (his dismissal and the WorkCover situation) had a toll on him, both emotionally and physically.

[13] In evidence before me, it is apparent that so far as progressing the unfair dismissal claim, Mrs Lilian Nashar (Mr Nashar’s wife) seemed to make most of such inquiries as were made in relation to the unfair dismissal remedy. It is the evidence which is not challenged by the employer, that initial inquiries were made on 2 December 2014 with Mr Nashar’s WorkCover solicitor, Ms Rosemary Bell. Mrs Nashar was advised that Ms Bell could not deal with the unfair dismissal claim because she was not an employment lawyer. Thereafter, Mrs Nashar made contact with a solicitor from Maurice Blackburn Lawyers, namely a Mr Enver Erdogen.

[14] During that telephone conversation, it is the evidence of Mrs Nashar that she was advised that her husband should concentrate on the finalisation of his WorkCover claim before proceeding with an unfair dismissal claim. The evidence was that she was advised that it would cost her five or six hundred dollars per hour to engage a solicitor to represent her husband in any unfair dismissal claim and because neither she nor her husband were in a financial position to fund those legal fees, no application was pursued at that time.

[15] Because of the serious nature of the allegation that Mrs Nashar makes, that is because the allegation is essentially that advice given that was negligent, it raises the question of whether there was any representative error. For that reason, during the evidence that was given by Mrs Nashar on 5 June, I adjourned the proceedings to allow Mr and Mrs Nashar to give consideration as to whether they wished to apply for an order to compel Mr Erdogen to attend before me to give evidence.

[16] Subsequent to the adjournment I received correspondence in my Chambers from Mrs Nashar which attached correspondence from Mr Erdogen. The correspondence provides, relevantly, that Mr Erdogen gave general advice about Mr Nashar’s WorkCover claim and advised that he could not provide advice in relation to the termination of the employment as he did not practice in the area of employment law. The correspondence also indicates that he recommended that Mr and Mrs Nashar consult an employment lawyer about the matter and indicated that Maurice Blackburn does practice in the area of employment law, however, it does not act on a no win, no fee basis and the cost of an initial one-hour appointment with an employment lawyer would be approximately $500.

[17] Mr Erdogen says in the correspondence, that Mrs Nashar informed him, that they could not afford to pay that amount and therefore they were not booked in for an appointment with an employment lawyer from Maurice Blackburn.

[18] No application has been made for an order that Mr Erdogen attend as a witness in these proceedings. In the circumstances, I am not prepared to make a finding that Mr Erdogen gave advice to Mrs Nashar in the manner in which it is described by Mrs Nashar.

[19] Furthermore, it is apparent that all communications were between Mrs Nashar and the solicitor from Maurice Blackburn Lawyers. Mr Nashar had no communication with the solicitor. The advice, such as it was, occurred over the telephone and was not given directly to Mr Nashar. In these circumstances I am not prepared to find that a solicitor-client relationship had in fact been formed so as to give rise to the possibility of a representative error. Nor am I prepared to conclude representative error absent evidence from Mr Erdogen particularly given Mr Erdogen’s letter which is directly contrary to the evidence of Mrs Nashar. In the circumstances, I am not satisfied that there was any representative error which resulted in the delay of the application and so representative error does not provide an acceptable explanation for any part of the delay.

[20] It is also apparent that to the extent that Mr and Mrs Nashar were under the impression that they required legal assistance or representation to make an application to this Commission in relation to an unfair dismissal remedy, they were disabused of that fact when in February 2015 they had a conversation with a Mrs Nadia Raad, who I understand to be Mrs Nashar’s aunt, to the effect that legal representation was not required and that all that needed to be paid was a filing fee.

[21] The evidence of Mrs Nashar was to the effect that Mr Nashar did not proceed to make an application at that time because they were not in a financial position to pay the filing fee. It is apparent from the material that no other step was taken by Mr Nashar to inquire about his right to make an unfair dismissal claim until the application was lodged or, at least, until the application was posted on or about 30 March 2015.

[22] So then, the reasons for the delay appear to be a combination of the ignorance of any right to pursue an unfair dismissal claim, the financial capacity to pursue such a claim, the pressing personal circumstances that Mr and Mrs Nashar were facing at that time and in the period immediately following the dismissal, including the relocation and the awaiting of the finalisation of the WorkCover claim so as to bring about a financial circumstance in which debts could be cleared and financial capacity freed up to make this application.

[23] Although I am not unsympathetic with the personal circumstances faced by Mr Nashar, none of these reasons, either alone or in combination, provide a satisfactory explanation for the delay. It has long been established that ignorance of a right to make an application or ignorance of the time frame within which an application should be made will not generally provide a satisfactory or acceptable explanation for the delay; neither will the inability to engage a lawyer to provide advice – provide such an acceptable explanation.

[24] As to the personal circumstances, as I indicated, whilst I accept that Mr Nashar was under pressure during the period following his dismissal because of his personal financial circumstances, those personal circumstances did not in my view present a barrier to making an application. Personal circumstances which distract and place pressure on a person is not unusual. Ultimately, the question is one of making appropriate inquiries and prioritising the making of an unfair dismissal remedy application within the prescribed time frame.

[25] I am consequently not satisfied that any of the explanations provided for the delay provide an acceptable explanation for the whole of the period of the delay. Consequently, the absence of an acceptable explanation for the whole of the period of delay weighs against the applicant in my consideration.

[26] Turning next to the question whether Mr Nashar became aware of his dismissal after it took effect, it is clear that although the letter of termination creates some confusion because of the absence of a date on the letter, that the letter was received by the Mr Nashar on 28 November 2014 and the respondent in this proceeding accepts that the dismissal could not have taken effect at some earlier date and that it took effect on the day the letter was received.

[27] It is clear from the evidence that Mr Nashar understood on that day, having read the letter, that his employment had been dismissed. Shortly after receiving the letter, he sought to obtain some legal advice. In the circumstances, I am satisfied that the dismissal took effect on 28 November 2014 and that Mr Nashar became aware that his dismissal took effect on that day. It follows that Mr Nashar did not become aware of his dismissal after the date on which the dismissal took effect and so had the entire period of 21 days thereafter to make a valid application. The fact that Mr Nashar knew that his dismissal took effect on the day that it took effect, is a matter that weighs against the applicant in my consideration.

[28] Turning then to the action taken by Mr Nashar to dispute his dismissal, it is clear on the evidence that shortly after receiving the letter of termination, Mr Nashar sought some legal advice. He also raised the issue of his status as an employee or the status of his employment with his employer prior to receiving the letter from the employer on 28 November 2014, that is, in the period following the last meeting with his employer on 29 October 2014.

[29] It is also clear that little else was done to dispute his dismissal. For example, no step was taken by Mr Nashar to communicate to his employer that he was unhappy or dissatisfied with the dismissal. It may be that had he obtained some advice at the time, he may have been in a position to dispute his dismissal, but for the reasons indicated earlier he was unable to do so. In the circumstances, the absence of any significant step to dispute his dismissal is a matter that weighs slightly against the applicant in my consideration.

[30] As to prejudice to the employer, the employer has accepted that it will not suffer any particular prejudice. The absence of prejudice alone will usually be an insufficient basis to find exceptional circumstances or to extend time. Nevertheless, the employer accepts that other than the usual prejudice that is associated with defending an unfair dismissal application, no other prejudice will be suffered.

[31] Mr Penna points to the fact that one of the prospective witnesses in any unfair dismissal hearing is no longer in its employ, but accepts that person can be located and that an order requiring that person’s attendance to give evidence can be made. In those circumstances, I am satisfied that the employer will not suffer any particular prejudice and I am prepared in this case to consider that the absence of prejudice is a factor that weighs slightly in favour of the applicant.

[32] Turning then to the merits of the application, it appears to me that central to the resolution of the merits of the claim is the dispute about the circumstances of the incident on 11 July 2014 and the version of events communicated to his employer by Mr Nashar of those events. It is seriously in dispute between the parties as to whether Mr Nashar misled his employer about the nature of the incident. The allegation that Mr Nashar misled his employer ultimately led to the employer’s decision to dismiss.

[33] As I indicated earlier, it is not my function to make final findings of fact in relation to the merits of the claim and the disputed positions of the parties, but in the circumstances I am prepared, based on the material before me, to conclude that Mr Nashar has at least an arguable case. That is not to say that ultimately his application will succeed. On the basis of the material that I have reviewed, it cannot be said with confidence that his application will succeed, however, it is clear to me that he has at least an arguable case. In the circumstances, this is a matter that weighs slightly in the applicant’s favour.

[34] As to fairness between Mr Nashar and other persons in a similar position, neither party made any particular submissions on that matter nor have I been able to identify any decision of this Commission which are so squarely on fours with the facts in this case as to warrant consideration. In the circumstances, I regard this consideration as neutral.

[35] Statutory time limitations for the exercise of a right to bring an unfair dismissal application are essentially an expression of the Parliament’s intention to balance, on the one hand, the right to bring an application about a disputed dismissal; and on the other, the right of the employer to continue with its business with some certainty after it has made a decision and know that after the elapsing of a particular period, disputes about actions taken by it will no longer be agitated.

[36] The Parliament has struck that balance by assigning a 21-day time limit within which to make an application, but recognising that there will be circumstances which will warrant an extension of time. Parliament has determined that it will only be in exceptional circumstances that the Commission will give consideration to whether an extension of time should be granted. But the primary position is that applications should be made within the 21-day period.

[37] When I consider each of the matters set out in s.394 (3), in the context of the evidence in this case and whether I look at those circumstances individually or collectively, I am not satisfied that they establish that there are exceptional circumstances in this case which warrant the consideration of the exercise of my discretion to extend the period within which the application has been made.

[38] As I indicated earlier, whilst I am not unsympathetic to the circumstances faced by Mr Nashar, there simply is not a satisfactory explanation for the delay for the whole of the period. The period of the delay itself, in a relative sense is a significant period of delay and although I have concluded that Mr Nashar has an arguable case, it cannot be said on the material before me that the facts or the merits of the application are so sufficiently strong so as to give this factor significant weight.

[39] Mr Nashar became aware of his dismissal on the day it took effect and he took no serious step to dispute his dismissal with his employer or with anybody else. As I have indicated, I am not satisfied that there are exceptional circumstances and so the question of whether I should exercise my discretion does not arise. I propose therefore not to exercise my discretion. The application for an unfair dismissal remedy is dismissed and an order giving effect to that dismissal has been issued in PR568450.

DEPUTY PRESIDENT

Appearances:

T. Nashar on his own behalf

F. Penna for IPA Personnel Pty Ltd T/A Part of ESH Shared Services Pty Ltd

Hearing details:

Melbourne.

2015

5, 17 June

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