Vusal Asgarov v Living Edge (Aust) Pty Ltd

[2019] FWC 3868

[2019] FWC 3868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Vusal Asgarov
v
Living Edge (Aust) Pty Ltd
(C2019/1863)

DEPUTY PRESIDENT MANSINI MELBOURNE, 5 JUNE 2019

Application to deal with a general protections dispute involving dismissal – extension of time– circumstances not exceptional – application dismissed.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Act).

[2] I have determined that Mr Asgarov (the Applicant) did not file within the statutory timeframe and should not be allowed a further period within which to lodge his application. These are the reasons for that decision.

Was the application made out of time?

[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[4] The Applicant’s dismissal took effect on 29 January 2019. The Applicant did not lodge his application until 22 March 2019. Accordingly, the period of 21 days ended at midnight on 19 February 2019 and the Application was lodged 31 days out of time.

[5] The Applicant asks that the Commission allow a further period for the application to be made. Living Edge (Aust) Pty Ltd (the Respondent) opposes.

Are there exceptional circumstances?

[6] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters of which I must be satisfied are set out in s.366(2) of the Act.
[7] The exceptional circumstances test establishes a high hurdle for an applicant. 1 In this context, to be exceptional the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.2 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 can be considered exceptional.3

[8] My consideration of the matters set out at s.366(2) follows.

Reason for the delay – s.366(2)(a)

[9] 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” or “credible” explanation. 4 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.5 Ultimately, it is a question of degree and insight.6

[10] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay. 7

[11] The Applicant is a temporary resident of Australia who claimed to have a limited understanding of Australia’s workplace laws. He was made redundant from his furniture sales role with the Respondent during his probationary period and naturally experienced feelings of shock and distress for a few days following his dismissal.

[12] The Applicant submitted that the reason for his delay was due to a mistaken belief that he did not have access to the Fair Work Commission’s jurisdiction. That is a belief which he held based on a “free 20 minute consultation” with an unidentified workplace lawyer, which took place by telephone around one week after the Applicant’s dismissal. 8 It was reinforced by a discussion with a second unidentified workplace lawyer, and the Applicant’s own research, which confirmed he was not protected from unfair dismissal as he was terminated during his probationary period.

[13] The second lawyer advised the Applicant to file a claim in the Anti Discrimination Commission Queensland. The Applicant understood he had 12 months after his dismissal to make that claim and therefore “was not rushing”. 9

[14] It was not until 19 March 2019 that the Applicant became aware of the Commission’s jurisdiction to deal with a general protections dispute involving dismissal. He was so informed by a friend who works in human resources. He took a further three days to file this application after that conversation took place.

[15] The Respondent submits that the Applicant:

•  understood where he could seek advice about his options to dispute the dismissal (including because it had directed him to an appropriate source, in its termination letter);

•  had ample opportunity to seek advice and file his claim within the statutory timeframe; and

•  demonstrated his capacity to seek advice and conduct his own research within the statutory timeframe.

[16] In the circumstances of this case and the evidence before the Commission, I am not satisfied that there is a reasonable, acceptable or credible explanation for the delay.

[17] At the determinative conference, the Applicant presented as articulate and well able to comprehend both the terms of his employment and the elements required to make out a basis for his claim. In any event, mere ignorance of the statutory time limit is not an exceptional circumstance. 10

[18] I note that this is not a case in which representative error is alleged. Even if it were, representative error will not in all cases provide an acceptable explanation for delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error. 11

[19] The absence of an acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances.

Action taken to dispute the dismissal – s.366(2)(b)

[20] It was not alleged that any action was taken to dispute the dismissal. Although the Applicant may have contemplated making other claims to dispute the dismissal, he had not done so even at the time of the determinative conference.

[21] I consider this weighs against a finding of exceptional circumstances in the present case.

Prejudice to the employer – s.366(2)(c)

[22] The Respondent properly accepted that there is no particular prejudice caused by the delay. However, the mere absence of prejudice is not of itself a factor that would warrant an extension of time, nor is it exceptional.

[23] I consider this to weigh slightly in favour of a conclusion that there were exceptional circumstances in the present case.

Merits of the application – s.366(2)(d)

[24] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[25] It is not contentious that there is an adverse action in the form of dismissal. However, the reason(s) for the dismissal are in dispute.

[26] The Applicant contends that he was targeted during his employment and ultimately dismissed because of his political opinion, being a protected attribute under s.351(1).

[27] Specifically, the Applicant submits that he was dismissed due to his strong expressions of views regarding treatment of animals which are in alignment with the Charter of the Animal Justice Party. The Applicant’s evidence in this regard was:

•  The Applicant is a member of the Animal Justice Party. He had not disclosed this political membership to the Respondent. However, due to his stance regarding various social events (Melbourne Cup Day, team barbeques and a Christmas function), and in social conversations, he believed that all staff in the Brisbane team understood his views about the treatment of animals and targeted him accordingly.

•  In late October 2018, the Queensland State Manager asked the Applicant whether he was comfortable to perform his role selling products made of leather (animal hide). In response the Applicant confirmed his commitment to the organisation and his role.

[28] The Respondent denied that the Applicant’s views about the treatment of animals amounted to anything other than a “personal preference” and that these views had anything to do with his selection for redundancy. 12 At the time of dismissal, it did not know that the Applicant was a member of any political party. The Applicant was “not the only vegan” employed by the Respondent.13 It suggested that the exception at s.351(2)(b) applies to the Queensland State Manager’s inquiry, being a legitimate inquiry about whether the Applicant could perform the inherent requirements of his sales role in circumstances where at least 30 per cent of the Respondent’s products are made of leather. This was resolved by the Applicant’s response at the time.

[29] The Respondent’s Chief Financial Officer gave evidence that significant losses of the business and poor financial performance of the Brisbane team led to a decision to make operational changes in order to reduce costs. The Applicant accepted that, on 22 January 2019 (one week prior to his dismissal), he was notified of pending structural changes within the Brisbane sales team. However he sought to challenge the Respondent’s evidence, relying on comments overheard at a Christmas function in December 2018, to the effect that business performance was solid and forecast to improve.

[30] The Respondent argued that the Applicant was selected for redundancy for the sole reason that his experience in the role was most limited of any salespersons in the Brisbane team, having commenced employment most recently. The decision makers were the Respondent’s four directors, not the Queensland State Manager or any Brisbane team members.

[31] Whilst the evidence would need to be fully tested before any finding could appropriately be made, as presented to this Commission the merits of the substantive claim that the Applicant was dismissed because of his political opinion are tenuous.

[32] Accordingly, I consider that the merits of the application weigh slightly against a conclusion of exceptional circumstances.

Fairness as between the person and other persons in a similar position – s.366(2)(e)

[33] Applications to extend time generally turn on their own facts. The parties did not draw to my attention any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position.

[34] I consider this to be a neutral consideration in the present matter.

Conclusion

[35] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[36] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable explanation for the delay in filing the application. The absence of prejudice weighs slightly in favour of, whereas the absence of any action taken to dispute the dismissal and the evidence presented on the merits weigh against, the grant of an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[37] I decline to grant an extension of time under s.366(2). Accordingly, the Applicant’s application under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

V Asgarov on his own behalf.

D Grima and J Morton for the Respondent.

Hearing details:

30 May 2019

Printed by authority of the Commonwealth Government Printer

<PR709007>

 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

 2   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975(Nulty) at[12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21].

 3   Ibid.

 4   Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7].

 5 Stogiannidis at [39].

 6   Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8].

 7   Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-]33];Perry at [23].

 8   Evidence of the Applicant at the determinative conference on 30 May 2019.

 9   Applicant’s outline of argument: Extension of time dated 6 May 2019.

 10 Nulty at [14].

 11   See Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-420.

 12   Response to the Applicant’s General Protections Claim dated 14 May 2019.

 13   Evidence of the Respondent at the determinative conference on 30 May 2019.