Waris Yaqubi v Delcorp Australia Pty Ltd
[2024] FWC 1017
•17 APRIL 2024
| [2024] FWC 1017 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Waris Yaqubi
v
Delcorp Australia Pty Ltd
(U2024/2365)
| COMMISSIONER SCHNEIDER | PERTH, 17 APRIL 2024 |
Application for an unfair dismissal remedy
Mr Waris Yaqubi (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Delcorp Australia Pty Ltd (the Respondent).
The Respondent objects to the application on the grounds that it appears to have been lodged outside of the statutory timeframe.
The Respondent has a further jurisdictional objection to the application, being that the Applicant was not dismissed by the Respondent.
Before considering the merits of the application or the objection regarding the existence of a dismissal, the Commission must be satisfied that the application was not made out of time.
A Hearing regarding the out of time issue was held. At the Hearing, the Applicant gave evidence on his own behalf. The Respondent did not present any witnesses.
The below individuals provided statements in support of the Applicant but were not required for cross examination at the hearing.
· Samine Yaqubi (Former Factory Manager of the Respondent)
· Musawer Yaqubi (Former College of the Respondent)
· Jennie Ritz (Former National Sales Manager of the Respondent)
· Damien Madden (Former Technical and Design Manager of the Respondent).
The statements provided by those above primarily address with their experiences with the Applicant at the workplace and allegations about the conduct of Mr Robert Vis (Mr Vis), the Owner of the Respondent. The statements held limited relevance to the determination of the objection.
The Applicant filed submissions in the Commission on 3 April 2024. The Respondent filed submissions in the Commission on 10 April 2024.
Dismissal date
Relevant Law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
The circumstances behind the Applicant’s dismissal are in dispute between the parties, the Applicant claims that he was dismissed by the Respondent on 6 November 2023, whilst the Respondent submits that the Applicant resigned from his employment on 6 November 2023 and finished that same day.
Whilst the circumstances regarding the nature of the way in which the employment ended are in dispute, it is not disputed that the relationship, whether by way of resignation or dismissal, came to an end on 6 November 2022.
It is a matter of record that the application was made on 1 March 2024.
As noted above, the dismissal took effect on 6 November 2023. The final day of the 21-day period was therefore 27 November 2023 and ended at midnight on that day. As I found above, the application was made on 1 March 2024.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Extension of time
Relevant law
Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.
The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted in the given circumstances.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4]
Exceptional circumstances may 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.[5]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]
This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.
Consideration of Criteria
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 27 November 2023. The delay is the period commencing immediately after that time until 1 March 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]
The Applicant put forth several factors as contributing to the delay:
·The Applicant submits that, in November 2022, he was assaulted by his employer, Mr Vis. The Applicant submits that, following this incident, his mental health began to decline, and he sought treatment. The Applicant notes that the partner of Mr Vis worked at the medical facility he sought treatment at, being why he commenced treatment at this clinic.
·The Applicant submits that he has been suffering from anxiety and PTSD following the termination of his employment and this impacted his ability to file his application with the Commission.
·The Applicant had originally lodged in the incorrect jurisdiction being the Western Australia Industrial Relations Commission (the WAIRC).
·The Applicant also sought to dispute his dismissal with the Department of Energy, Mines, Industry Regulation and Safety (DMIRS).
In support of the above, the Applicant provided the following evidence:
·A medical certificate from his doctor dated 28 March 2024 confirming that the Applicant is currently being treated for anxiety and depression.
·The Applicant submits that he was unable to obtain his medical records from the treatment he received following the incident in late 2022.
·Confirmation that the Applicant had lodged an application with the WAIRC on 29 February 2024. Once it was brought to the attention of the Applicant that he had filed in the incorrect jurisdiction, the Applicant took action to remedy this and applied with the Commission the following day.
·Correspondence between himself and an employee of DMIRS, no date was provided on this correspondence. At the hearing, the Applicant was unable to provide an exact date for his lodgement with DMIRS, he believed it was around one week prior to lodging his application with the WAIRC and the Commission.
In relation to the reason for the delay, the Respondent submits that the only evidence in relation to the Applicant’s mental health diagnosis that had been provided is the medical certificate dated 28 March 2024.
The Respondent notes that the medical certificate filed by the Applicant states that he was receiving counselling 6-8 months prior. However, there is no evidence filed to support this statement and no submissions outlining what counselling the Applicant had received.
The Respondent notes the lack of medical evidence addressing the delay between 7 November 2023 and 1 March 2024. Consistent with the decision in Roe in Rose v BMD Constructions Ptd Ltd,[10] the Respondent submits that the medical certificate, provided on 28 March 2024, is not compelling evidence in support of a finding of exceptional circumstances.
The Respondent submits that the Applicant filing in the incorrect jurisdiction does not support a finding of exceptional circumstances for the purpose of the Act. The Respondent also highlights that the applications were filed in February 2024. The Respondent submits that these applications were filed outside the 21-day filing period with the Commission and these attempts by the Applicant to dispute his dismissal in alternative jurisdictions should be given no weight towards a finding of an exceptional circumstance.
Having regard to the above, I am satisfied that the Applicant was genuine in outlining his current mental health challenges when giving testimony. It is therefore reasonable that this impacted the Applicant’s ability to file his claim with the Commission.
In relation to the applications the Applicant filed with the WAIRC and DMIRS, I agree with the submissions of the Respondent. Filing in the incorrect jurisdiction is not always in itself warranting of a finding of exceptional circumstances. Coupled with the fact that the other applications were filed over 70 days late of the timeframe, I have found that they do not, in such circumstances, particularly support a finding of exceptional circumstances.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute that the Applicant was aware that his employment had ceased on 6 November 2023. As I have highlighted earlier in this decision, the circumstances surrounding this are disputed, however, in the circumstances of this matter it is clear the Applicant had the benefit of the full 21-day period to file his application.
What action was taken by the Applicant to dispute the dismissal?
As noted previously, the Applicant tried to dispute his dismissal in both the WAIRC and through DMIRS. From the evidence provided by the Applicant, and his evidence provided at the hearing, both attempts to dispute his dismissal were made sometime in February 2024, approximately two months after the 21-day filing period had passed with the Commission.
What is the prejudice to the employer (including prejudice caused by the delay)?
I am satisfied there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[11] and the same applies to section 394(3)(e) of the Act.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reason for the delay, being primarily the mental health challenges faced by the Applicant;
(b) the Applicant being aware of the ending of his employment at the time that it took effect;
(c) the Applicant seeking to dispute his dismissal in the incorrect jurisdiction prior to filing with the Commission ;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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 nor unprecedented, nor even very rare.[12] Exceptional circumstances may 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.[13]
The evidence provided by the Applicant is a medical certificate dated 28 March 2024, similar to that in Roe in Rose v BMD Constructions Ptd Ltd. I am not persuaded that a medical certificate provided 27 days after the Applicant has lodged his application with the Commission, and over 130 days after the cessation of his employment, is considerably favorable to a finding of exceptional circumstances.
As I have outlined previously in this decision, I accept that the Applicant is genuine in his submission that he had been suffering from anxiety and depression prior to the dismissal of his employment with the Respondent. However, there has been no medical evidence provided to suggest that the Applicant was so debilitated due to his mental health that he was unable to complete the filing of his application with the Commission in a timely manner.
Whilst I am sympathetic to the situation faced by the Applicant, in making a finding of exceptional circumstances I am not satisfied that the medical evidence provided is of enough value to support such finding. I note the Applicant’s submissions in relation to his medical records of 2022. In light of the evidence that has been filed, I am not satisfied that the allegedly withheld documentation would have substantial bearing on my conclusion here.
As I have noted previously in this decision, I accept that, in mid to late February 2024, the Applicant started to take action to dispute his dismissal by making complaints to DMIRS and by lodging an application with the WAIRC. However, noting that this action took place some 70 days after the end of the 21-day filing period, this action does not weigh in favor of a finding of exceptional circumstances.
I note the conduct of the Respondent referred to by the Applicant in the hearing. I have reserved making any findings in relation to this conduct, noting that Mr Vis did not give evidence.
Conclusion
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.[14]
COMMISSIONER
Appearances:
W Yaqubi, Applicant.
L van Aardt of LVA Legal for the Respondent.
Hearing details:
2024.
Perth (by video):
April 11.
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Ibid; [2015] FWCFB 1877.
[3] [2018] FWCFB 901, [39].
[4] [2011] FWAFB 975, [13].
[5] [2011] FWAFB 975, [13].
[6] [2018] FWCFB 901, [39].
[7] Ibid, [40].
[8] Ibid, [17].
[9] [2015] FWCFB 287, [12].
[10] [2011] FWA 673, [11].
[11] [2011] FWAFB 975, [36].
[12] [2011] FWAFB 975, [13].
[13] Ibid.
[14] [PR773641].
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