Ziad Zahran v IDA Design Group Pty Ltd

[2022] FWC 3024

[2022] FWC 3024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ziad Zahran
v

IDA Design Group Pty Ltd

(U2022/9710)

COMMISSIONER MCKINNON SYDNEY, 18 NOVEMBER 2022

Application for an unfair dismissal remedy – application filed out of time – whether additional time should be allowed to make the application

1. Mr Ziad Zahran was employed by IDA Design Group Pty Ltd (IDA Design) from 15 March 2021 until 5 August 2022. On 1 October 2022, Mr Zahran applied for an unfair dismissal remedy. The application was filed 5 weeks and one day after the end of the 21-day statutory filing period. The question is whether additional time should be allowed for Mr Zahran to make the application to the Commission.

1. I have decided not to allow additional time for Mr Zahran to make his application. The application will be dismissed. These are my reasons.

Extension of time

1. Under s.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, taking into account certain matters.

1. 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.”

1. The matters to be taken into account when deciding whether to grant additional time are set out in s.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

1. Reason for delay: The reason given for delay is that Mr Zahran was trying to communicate genuinely with IDA Design to pay him all his “dues” and underpayment without success. From on or about 17 August 2022, Mr Zahran was consulting with a former lawyer and friend of the family, Mr Antoine Sandroussi and says he was misled. It has since come to my attention that Mr Sandroussi was removed from the roll of practitioners in 2013 for professional misconduct. He is not currently registered as a solicitor in New South Wales.

1. Mr Zahran says that he explained all the facts to Mr Sandroussi and asked him questions about legal matters, including about his entitlements on termination and IDA Design’s subsequent reliance on his architect’s registration. Mr Sandroussi advised him that it was an industrial matter and that he should make a claim in the local court. On 22 August 2022, Mr Zahran spoke to the Fair Work Ombudsman about getting a copy of his employment contract.

1. Together, Mr Zahran and Mr Sandroussi spent approximately one month preparing a statement of claim. On 20 September 2022, Mr Zahran attended the registry of Burwood Local Court to file his statement of claim. Rather than accept lodgement, it referred Mr Zahran to Marrickville Legal Centre. The Commission’s file indicates that Marrickville Legal Centre had previously acted for Mr Zahran in 2016 in an unfair dismissal application.

1. On 27 or 28 September 2022, Marrickville Legal Centre advised Mr Zahran to make an unfair dismissal application. In error, Mr Zahran lodged an unlawful termination application instead, at 11.12pm on 29 September 2022. The error was discussed with Mr Zahran on 30 September 2022, leading to his withdrawal of the application that day. He then applied for an unfair dismissal remedy at 10.18pm on 1 October 2022.

1. Mr Zahran submits that during this time he was under immense pressure and stress. He submits that he did not do his own research. He sought legal advice from Bankstown legal centre but was advised that his level of salary made him ineligible for assistance. Mr Zahran also considered making a medical claim about his experience with IDA Design but decided not to because he did not want it on his record.

1. Whether the person first became aware of the dismissal after it had taken effect: The issue of whether Mr Zahran was dismissed by IDA Design is in dispute. Putting that aside for the moment, Mr Zahran knew that his employment had come to an end on 5 August 2022 when he submitted a letter of resignation to IDA Design with immediate effect.

1. Any action taken by the person to dispute the dismissal: After 5 August 2022, Mr Zahran engaged directly with IDA Design about disputed entitlements on termination until 23 August 2022. On 16 August 2022, Mr Zahran alleged “unfair dismissal” and on 17 August 2022, he notified IDA Design that his lawyer would be in contact “in due course” in relation to his alleged outstanding entitlements. Despite these indications, Mr Zahran did not apply for an unfair dismissal remedy until 1 October 2022, and his lawyer (who was not a lawyer) did not contact IDA Design or its legal representative. 

1. As noted above, Mr Zahran then spent about one month preparing a Statement of Claim for liquidated damages against IDA Design in relation to alleged underpayment as well as damages for wrongful termination and other matters. The claim was never lodged because when he attended Burwood Local Court to file the Statement of Claim, Mr Zahran accepted their suggestion to seek advice from Marrickville Legal Centre instead. Marrickville Legal Centre then advised Mr Zahran to apply to the Commission in relation to his dismissal and he did so, first using the wrong form, and then correctly.

1. Prejudice to the employer (including prejudice caused by the delay): There is some, but minimal, prejudice to IDA Design if the application is allowed to proceed more than 5 weeks late. Much of the asserted prejudice is that associated generally with defending an unfair dismissal case in the context of a small business. While the link between alleged prejudice and delay in the commencement of proceedings is less clear, I do not discount it entirely having regard to the breadth of factual matters in dispute and the not insignificant period of delay.

1. Merits of the application: There is evidence on the face of the record of a clear choice made by Mr Zahran to resign from his employment on 5 August 2022 in return for a good reference instead of being dismissed on performance grounds. Resignation in this context would not alone demonstrate that the resignation was forced or that there was a dismissal at the initiative of the employer. Mr Zahran’s purported retraction of his resignation three days after the event was also not likely to have been effective, and Mr Zahran does not contend that his employment ended on a day after 5 August 2022. There is a further jurisdictional issue in relation to whether, if Mr Zahran was dismissed, the dismissal was consistent with the Small Business Fair Dismissal Code. This is a matter in dispute and each party has an arguable case. Finally, Mr Zahran raises issues of credibility in relation to the Director of IDA Design, but the record does not permit a finding or an inference to be drawn in this regard at this stage.

1. Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.

Conclusion

1. The giving of poor legal advice to Mr Zahran by Mr Sandroussi, who should not have been giving legal advice at all, is an exceptional circumstance in this case.  However, on balance, I am not persuaded that I should exercise my discretion to allow additional time to Mr Zahran to make his application for an unfair dismissal remedy.

1. Mr Zahran knew immediately that his employment had come to and. He had prior knowledge of the Commission’s unfair dismissal jurisdiction and the 21‑day period for applications. Mr Zahran foreshadowed an unfair dismissal claim to IDA Design on 16 August 2022, which was only 11 days after the employment had come to an end. He contacted the Fair Work Ombudsman to ask about his entitlements on termination. He did not however, take steps to preserve his position in relation to unfair dismissal until the 21-day period had well and truly passed. Even when Marrickville Legal Centre advised him to make an unfair dismissal claim, and knowing that he was out of time, Mr Zahran did not apply to the Commission straight away.

1. The filing delay is largely explained by Mr Zahran’s primary focus in the weeks that followed his cessation on securing payment of what he considered his due entitlements and initially at least, the maintenance of good relations with IDA Design. As time went on, his concerns evolved to include his treatment at the hands of IDA Design and its use of his architect’s registration on IDA Design projects after 5 August 2022.

1. Mr Zahran submits that it took approximately one month to prepare and attempt to lodge a Statement of Claim against IDA Design. It may be that this was partly due to the stress experienced by Mr Zahran after 5 August 2022. Even so, the lack of urgency weighs against the grant of additional time, as does the reliance of Mr Zahran (who is tertiary qualified and has prior experience in the unfair dismissal jurisdiction) on Mr Sandroussi instead of making his own inquiries in relation to the application.

1. The merits of the case also do not weigh in favour of additional time. At best, they are a neutral consideration because the substantive merits are in dispute and are strongly contested. The more likely outcome is that the application will be dismissed on jurisdictional grounds, on the basis of a finding that Mr Zahran resigned and was not dismissed.

1. It is not correct to say, as Mr Zahran does, that the Small Business Fair Dismissal Code only applies to dismissals for serious misconduct. If Mr Zahran was dismissed, and if the dismissal was for performance reasons, the Small Business Fair Dismissal Code would have been capable of applying to the dismissal because IDA Design is a small business and the Code is not limited to dismissal for serious misconduct.

1. The potential for prejudice to IDA Design weighs marginally against additional time being allowed without being decisive and as I have noted above, fairness as between individuals is not a relevant consideration.

1. As I have decided not to allow additional time for Mr Zahran to make his application for an unfair dismissal remedy, the application remains out of time and is not made in accordance with the Act. The application is dismissed.

1. If Mr Zahran remains concerned that he has not been paid his proper entitlements of termination, he can seek advice from the Fair Work Ombudsman about what his entitlements are, and how to seek recovery of monies through the courts.

COMMISSIONER

Appearances:

Z Zahran on his own behalf.
E Aitken of Counsel for the respondent.

Hearing details:

2022.
Sydney (by video):
November 15.

[1] [2011] 203 IR 1 at [13].

Printed by authority of the Commonwealth Government Printer

<PR747932>