Zohreh Kazemy v Integrated Management System Solutions Pty Ltd
[2024] FWC 1358
•24 MAY 2024
| [2024] FWC 1358 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Zohreh Kazemy
v
Integrated Management System Solutions Pty Ltd
(U2023/11936)
Seyed Esmaeil Hosseini Syahpoosh
v
Integrated Management System Solutions Pty Ltd
(U2023/11767)
| COMMISSIONER THORNTON | ADELAIDE, 24 MAY 2024 |
Application for an unfair dismissal remedy– extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – no exceptional circumstances exist
This decision concerns applications filed by Ms Zohreh Kazemy and Mr Seyed Esmaeil Hosseini Syahpoosh (Ms Kazemy and Mr Syahpoosh or the Applicants) for unfair dismissal remedies pursuant to s.394 of the Fair Work Act 2009 (Act). The Applicants are a married couple who were both employed with Integrated Management System Solutions Pty Ltd (the Respondent). Their claims arose from the same series of events and relevantly, the late filing of both of their unfair dismissal applications. With consent of the parties, their applications were heard together. This decision deals with both applications for an extension of time to file the unfair dismissal applications.
The Applicants’ employment with the Respondent was brought to an end by text messages sent to Mr Syahpoosh from Mr Permeh, the Respondent’s Managing Director, on 3 November 2023. There is no dispute that Ms Kazemy was not directly advised of her termination by the Respondent.
The applications in these matters were lodged with the Fair Work Commission (the Commission) on 28 November 2023. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as allowed by the Commission pursuant to s.394(3).
In this instance, the dismissals took effect on 3 November 2023, and the period of 21 days concluded on 24 November 2023. The applications were not filed until 25 days from the date of dismissal, making the applications 4 days out of time. It is therefore necessary that the Applicants be granted an extension of time for their applications to proceed.
The Commission conducted a hearing, in person, to facilitate the determination of the extension of time applications. The Applicants were represented by Mr Syahpoosh and both participated in the hearing, giving sworn evidence. Ms Kazemy was assisted in giving her evidence by an interpreter. Mr Duggan appeared on behalf of the Respondent and Mr Mehrdad Permeh gave sworn evidence on behalf of the Respondent.
After consideration of all the relevant matters pursuant to section 394(3) of the Act, I find that no exceptional circumstances exist to warrant an order extending the time for the Applicants to file their applications. I detail my reasons below.
Background from the evidence
The Applicants and Mr Permeh, the Managing Director of the Respondent, are family members. Ms Kazemy is the sister of Mr Permeh’s wife so the Applicants are Mr Permeh’s brother and sister-in-law and Mr Permeh is their brother-in-law.
The Respondent is a family company, and Mr Permeh and his wife are the directors and shareholders. The company trades as Integpro. It provides medical device quality management systems, and auditing and consulting services.
The Applicants are directors of a residential construction company called TAK Homes (TAK). The two companies, TAK and Integpro entered into two Joint Ventures together. The first joint venture concerned the acquisition and development of a block of land in Hope Valley. The second joint venture concerned “various employment and corporate ownership arrangements … The aim of the Second Agreement was to govern the work and expenses associated with the project as well as establishing various employment and corporate ownership arrangements”.[1]
The Respondent asserts that it was pursuant to the second joint venture that Mr Syahpoosh was engaged as a Quality Advisor by the Respondent. The parties submit that this second joint venture agreement also required that Mr Permeh be employed as a safety officer by the Applicants’ company, TAK. The Respondent says that there was no requirement in the second agreement for Ms Kazemy to be employed by the Respondent, but given the family relationship and business interests, she was employed as a document controller.
Ms Kazemy commenced employment with the Respondent on 12 April 2021 and Mr Syahpoosh on 26 July 2021.
The events leading to the termination of employment related to funding of the Hope Valley Project, which was the subject of the first joint venture agreement.
The Applicants say that they were asked by Mr Permeh to provide $20,000.00 of their own funds to pay the personal credit card expenses of Mr Permeh and make other payments towards a company car that was used by Mr Permeh and his wife. They submit that the credit card was a business credit card but contained personal expenses relating to Mr Permeh. The Applicants refused to make the payments.
Mr Syahpoosh’s evidence was that the requirement to pay the credit card debt and car loan arose from a need to pay off debt to secure a construction loan for the costs of the Hope Valley Project. Mr Syahpoosh gave evidence that the parties were advised that if the debts for the credit card and company car were paid then a construction loan could be obtained.
When the Applicants refused to pay Mr Permeh the money, Mr Syahpoosh says that an argument ensued and Mr Permeh then demanded his resignation and that of his wife.
When the loan was ultimately refused, the development of the Hope Valley Project could not progress.
Mr Permeh denies the allegation that he requested money from the Applicants. Mr Permeh says in his evidence that “the parties to the Second Agreement experienced difficulty in obtaining additional loan funds to progress the works associated with the Project”[2] and “the Joint Venture Agreement came to an end in circumstances where additional loans could not be obtained to continue the Hope Valley project”.[3]
There are some factual disputes between the parties about the circumstances of the terminations. Mr Syahpoosh says that after a heated argument between him and Mr Permeh on 3 November 2023, Mr Permeh immediately dismissed him and Ms Kazemy. However, Mr Permeh denies a heated argument occurred and simply says: “it became obvious that the project was not going to be able to be completed as originally planned such that the Joint Venture Agreements ended immediately along with the associated employment arrangements.”[4]
Both parties agree that the termination occurred on 3 November 2023. Both Mr Syahpoosh and Mr Permeh confirmed in evidence that on 3 November 2023 at 12:07pm, Mr Permeh sent a text message to Mr Syahpoosh that said: “Before leaving today, send me your resignation and Zohreh’s resignation” and again later “By the way, either you resign, or you are fired.”[5] Mr Syahpoosh confirmed his understanding that his employment was terminated on that date in his evidence when he said: “on 3rd of November, he abruptly dismissed both me and my spouse via a sudden Persian message, without any prior notice.”[6]
Mr Permeh did not contact Ms Kazemy to inform her of her dismissal. The text messages referred to were the only communication to the Applicants about the termination.
I note that neither party gave evidence that a resignation was ever offered by the Applicants, but all parties have treated the words used in the text messages of Mr Permeh as terminating the Applicants’ employment.
The Applicants filed their unfair dismissal claim on 28 November 2023. Of most relevance to the matters for determination is the evidence from the Applicants about what occurred after the dismissal on 3 November 2023 until they filed their claim on 28 November 2023.
The Applicants made a submission setting out the reasons for delay in filing their claim, which was expanded on further in their oral evidence.
In summary, Mr Syahpoosh gave evidence that following their dismissals and before the filing of their applications, the Applicants:
(a)Made contact with a lawyer to seek advice but had to wait two weeks for an appointment;
(b)When they obtained legal advice it was to pursue the unfair dismissal claim without representation;
(c)Were unaware of the statutory time limit, as the legal advice did not address the time limit;
(d)Had no experience dealing with these matters;
(e)Were experiencing emotional distress from the sudden lack of income and the surrendering of capital and assets to the Respondent;
(f)Accepted advice from mutual friends to engage in discussions with Mr Permeh and his wife in an effort to resolve the dispute and as a result lost time for filing the claim;
(g)Were actively dissuaded by Mr Permeh from filing a claim;
(h)Lost time when Mr Syahpoosh attended the hospital after having a panic attack and high blood pressure;
Were affected by pressure and stress and needed to take “sedative pills”; and
(j)Mr Syahpoosh consulted with a doctor to obtain anti-anxiety medication.
When asked to summarise his reasons for delay in filing his unfair dismissal application, Mr Syahpoosh said it was because he “wasn’t well and couldn’t find a lawyer.”
After he received the message advising of his termination, Mr Syahpoosh said that he felt “shocked and betrayed” for a couple of days.
Mr Syahpoosh emphasised in his evidence a panic attack he had on 6 November 2023, three days after his termination that prompted him to call an ambulance. Mr Syahpoosh says that his blood pressure was exceptionally high during this episode. Mr Syahpoosh attended Calvary Hospital for only a few hours on 6 November 2023 before he returned home. Mr Permeh drove him home from the hospital. Mr Syahpoosh confirmed he received his letter of termination and termination pay soon after he returned home from hospital.
Mr Syahpoosh said that within days of being discharged from hospital, he arranged an appointment with a lawyer. It took another “6 or 7 days” to get the appointment. Mr Syahpoosh’s statement noted that he contacted a lawyer, but the lawyer “was too busy, and after two weeks she informed us that I should handle the unfair dismissal myself”.[7] He says the lawyer did not give him advice about the statutory time limit. Mr Syahpoosh placed into evidence an email from his solicitor of 28 November 2023, that referenced a building contract he had sent to them and included the words: “In relation to Fair Work Australia, I would suggest that you contact them yourselves.” The email correspondence otherwise dealt with additional matters on which I can assume the solicitors were advising Mr Syahpoosh.
Mr Syahpoosh agreed in evidence that he sought advice from the solicitor about his options to challenge the dismissal from employment but did not instruct the lawyer to file a claim for him. Mr Syahpoosh said when he learned that the lawyer “could not help me I lodged the application straight away”.
Mr Syahpoosh said that it was only at the time the lawyer advised him to pursue his unfair dismissal himself that he did an internet search, discovered the Fair Work Commission was the correct place to lodge his application and was “shocked” to understand that there was a 21 day time limit.
The email of 28 November 2023 from the Applicants’ solicitor referred to a previous letter of advice provided to Mr Syahpoosh. The Respondent requested disclosure of this document, however, Mr Syahpoosh appropriately did not waive privilege over the advice. Given the circumstances, I received a copy of the letter and sought consent to disclose only a redacted copy of the covering email that confirmed the date a letter of advice was sent to Mr Syahpoosh was 22 November 2023. As the letter contained privileged legal advice, there was nothing in evidence to suggest that the Applicants had legal advice about an unfair dismissal claim on 22 November 2023.
Mr Syahpoosh, in his oral evidence, said that when he met with the lawyer, soon after the dismissal, he was mostly concerned with seeking advice about the “joint venture problem.”
Mr Syahpoosh describes experiencing anxiety after the dismissal. He said he was dismissive of his son, was not sleeping at night and his sense of betrayal led to symptoms of anxiety and depression that has required medication. He said he saw three different General Practitioners in the weeks after the termination to seek treatment.
When questioned as to whether he challenged the dismissal with the Respondent, Mr Syahpoosh said that he did not, because he did not want to fight his brother-in-law. However, he also gave evidence that he attempted dispute resolution with Mr Permeh with the assistance of a friend.
Ms Kazemy gave evidence that she was not present for the alleged argument between Mr Syahpoosh and Mr Permeh on 3 November 2023, but said that when she came home and saw her husband he told her that he had had a dispute about the company with Mr Permeh. Ms Kazemy said that she was not directly informed about her dismissal. However, she accepts that she had a missed call from her brother-in-law on 6 November 2023, and because she was aware of the conflict between her husband and brother-in-law that she did not return the call.
In her evidence, Ms Kazemy said that she received payment of accrued entitlements and a pay slip on 7 November 2023 and understood when she received those that her employment had been terminated. She says that she was otherwise not informed that her employment had come to an end. Ms Kazemy confirmed that she did not return the call from Mr Permeh on 6 November 2023 or try to contact her sister and brother-in-law about the termination of her employment.
Ms Kazemy says that she was never again allocated work on the communication platform that was used by the Respondent to allocate work after 3 November 2023.
Ms Kazemy, in her statement filed with the Commission in advance of the hearing, said “he [Mr Permeh] abruptly dismissed both me and my husband through a sudden Persian message, without any prior notice”[8] and appeared to accept that her employment came to an end at the same time as her husband’s termination.
However, in her oral evidence Ms Kazemy, through an interpreter, made statements that conflicted with the evidence she had given in her written statement. She said on one occasion that she was made aware of the termination on 7 November 2023 when she received payment of her accrued entitlements. Then later in her evidence, in reference to the events as Mr Syahpoosh set them out on 3 November 2023, she said: “based on what I was told by my husband I concluded that I must also have been terminated”.
Ms Kazemy’s oral evidence was that she took no steps in relation to filing her unfair dismissal application other than attempting discussions with her sister and brother-in-law with the assistance of mutual friends. She said that these mutual friends encouraged both couples to discuss a resolution. Ms Kazemy says that the family relationship between the Applicants and Respondent motivated her to find another solution to the dispute other than legal action. Ms Kazemy said that a mutual friend had come to their house “two or three times” to help them resolve this “family dispute” and acted as a “go-between”. The contact from friends and their efforts to help resolve the matter “took time” and Ms Kazemy accepted that intervention as a course of action she wanted to explore to resolve matters.
It was Ms Kazemy’s evidence that she did not, independently of her husband, explore her options to address the dismissal and left it to Mr Syahpoosh to manage these matters. She first understood that she had the option to bring an unfair dismissal claim after her husband saw a solicitor but said she then also understood that by that time, “time was wasted and it was not done in time”.
Mr Permeh gave evidence that the Hope Valley project was unsuccessful and had to be abandoned. He says his obligation to employ the Applicants came from the Joint Venture agreement and when it was evident that the Hope Valley development could not secure a construction loan and it would conclude, that he had no obligation to employ the Applicants in the Respondent’s business. However, he could not point to where that agreement was recorded in writing.
Mr Permeh described the employment relationship with the Applicants as arising from the Joint Venture in his oral evidence as follows: “so you employ me? Then I employ you, so we can balance our books based on the payments and we then work on other projects separately; you put your share up with my share and then we split the profit and that was the joint venture.”
The Respondent asserts that the Applicants were employed for a “specified period and task”,[9] being the Hope Valley development. The Applicants deny this is the case and submit that their employment with the Respondent had no relationship to the Hope Valley project.[10] However, Mr Syahpoosh gave evidence that it was intended that the Respondent and Mr Syahpoosh’s own company be “sister companies”, and the employment arrangements established that included Mr Permeh’s employment with Mr Syahpoosh’s company for a short period, came into existence around the time the joint venture agreements were entered into and the employment arrangements came about because of the joint venture agreement.
Mr Permeh gave evidence that Ms Kazemy was employed part-time with the Respondent and was also employed by the accountant who did work for the Respondent. His evidence was that Ms Kazemy was employed and paid wages by the Respondent as part of the business arrangements arising from the joint venture agreement but did not perform any work or tasks for the Respondent. He said that he paid her a wage but that was for a “tax benefit”. However Mr Permeh accepted the Respondent entered into an employment relationship with Ms Kazemy.
Mr Permeh described the events leading to the terminations of employment as starting in August 2023, when he told the Applicants that the Respondent had insufficient funds to pay the mortgages on the Hope Valley property and as it was unlikely that they would secure a construction loan, the property had to be sold. He told the Commission that a sales agent had been engaged to sell the property and was then later discharged by Mr Syahpoosh without the Respondent’s agreement. Mr Permeh then sought advice from a mortgage broker who advised him that if a construction loan was to be secured, his capacity for borrowing money had to be improved by paying off his personal credit card and his car loan. Mr Permeh said he did not have the funds to pay off the debts. He denies asking the Applicants to pay his debts, but rather that he said: “who is going to pay because I have no money for this?” Mr Permeh says those words were said on 3 November 2023 but denies it was a heated discussion as alleged by Mr Syahpoosh.
Mr Permeh accepts he sent the text messages referred to above asking for the Applicants to resign or otherwise confirming that if a resignation was not provided he would terminate the Applicants’ employment.
Mr Permeh said that he “couldn’t continue the employment because the last six months before the termination, the Applicant was only working on the Hope Valley Project, not any of the company projects” and then the Hope Valley project could not continue. The Applicant he was referring to was Mr Syahpoosh. Regarding Ms Kazemy, Mr Permeh says that he terminated her employment because her employment was related to that of her husband and the wages paid to the both of them were a “split payment” of salary that was agreed to be paid to them as a couple. Mr Permeh concedes that he did not advise Ms Kazemy directly that her employment was terminated because she did not do work for the Respondent and he dealt with her husband in respect of matters relating to their employment.
The Applicant’s submissions
The Applicants argued in their closing submissions that all of the factors set out in their evidence “contributed to the delay in submitting our complaint against the unfair dismissal” and they assert the combination of factors should cause me to find that exceptional circumstances exist and extend the period of time for them to file their application.
The Applicants also submitted in closing that each case is unique and should be determined on its own facts. Mr Syahpoosh argued that the Applicants’ matter should not be compared to other matters as the Respondent had done in their submissions.
The Applicants also requested that their case be accepted over the Respondent’s submissions because the Applicants had been honest in simply explaining the events as they had occurred and did not offer excuses for the delay.
The Respondent’s submissions
The Respondent drew attention to the conflict in the oral evidence given by Ms Kazemy, compared with her statement with respect to the date she was made aware of the termination of her employment. The Respondent submits that I ought to prefer the evidence given in writing by Ms Kazemy in her statement and find that she became aware that her termination took effect on 3 November 2023.
The Respondent, in summary, says that ignorance of the statutory deadline and a lack of legal experience are not credible reasons for the delay in filing the unfair dismissal applications. The Respondent highlighted the steps that Mr Syahpoosh actively took to arrange legal advice very soon after he was advised of his termination. The Respondent submits that the documents that have been allowed into evidence show that Mr Syahpoosh primarily sought advice about the Joint Venture issues and not his unfair dismissal claim, and consequently I ought to find no validity in any assertions by the Applicants that their solicitors bear some responsibility for the delay.
The Respondent also submits that I should draw an inference from the Applicants promptly seeking legal advice, because it demonstrates that Mr Syahpoosh had the capacity to manage his affairs and could have filed an unfair dismissal claim or instructed a solicitor to do the same. The Respondent also submits as evidence of Mr Syahpoosh’s capacity to engage in the process, the speed with which Mr Syahpoosh lodged the Applicant’s unfair dismissal claims after receiving advice that he should pursue the claim without a representative.
With respect to the claim of Mr Syahpoosh that his hospital attendance was a contributing factor to the lateness in filing his application, the Respondent submits it ought to have no bearing with respect to the late lodgement of his claim. On the Applicant’s own evidence, his hospital attendance occurred three days after his termination, but that he was discharged later the same day without being admitted as a patient. There was a further 18 days remaining after the hospital attendance for the Applicants to file their applications in the Commission. The Respondent argues that no evidence was presented by Mr Syahpoosh that he suffered any further incapacity after 6 November 2023.
The Respondent does note that if the injury or illness had caused incapacity on the day that the application is due to be filed in accordance with the statutory time limit, it may constitute exceptional circumstances, however this is not the case here.
The Respondent notes that Ms Kazemy advanced no alternative reason for her delay in filing her claim and connects her claim so closely to her husband’s that she relies on the same reasons for delay. The Respondent submits that Ms Kazemy has, in essence, offered no reason for the delay in filing her claim and therefore, no exceptional circumstances can be found.
With respect to the other considerations in section 394(3) of the Act, the Respondent submits:
(a)Neither of the Applicants took steps to dispute their dismissals from employment, instead obtaining legal advice and agitating their complaints in respect of the Joint Venture dispute;
(b)As a small employer, the Respondent should not be lightly put to the cost and inconvenience of defending an application lodged out of time,[11] but otherwise does not press any issues of prejudice;
(c)The merits of the case are not before the Commission. As the underlying facts are complicated and involve commercial disputes with an overlay of familial relationships, no findings can be made in respect of the merits of the claim in this proceeding. Therefore, the merits of the claim must be considered a neutral factor in the decision; and
(d)I should otherwise be persuaded by the findings of the Commission in Sumit Chitkara v Leasing Finance Services Pty Ltd[12] (Chitkara), where similar reasons were relied on to seek an extension of time and the application was filed only one day after the deadline. In that case, the Commissioner held that “if a medical condition is relied on, there should be supporting evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit.”[13]
Further, the Commission rejected the applicant’s assertion that he had little idea about the unfair dismissal laws and that it took time to study the law and figure out the process, noting that a “simple internet search would have pointed the Applicant to the Commission’s website which has a range of resources to assist self-represented litigants”.[14]
Consideration
Section 394(3) requires that when considering whether to grant an extension of time, the Commission must take into account the following in determining whether exceptional circumstances exist:
(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.
Exceptional circumstances may include a single exceptional factor, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[15]
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.
Reason for the delay
The reason for the delay in itself is not required to be exceptional. Rather, the reason for the delay is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[16]
The delay required to be considered under section 394(3)(a) is the period after the prescribed 21 day period for the lodgement of an application. This period does not include the time from the date the dismissal took effect to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[17]
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 for the delay.
The delay in this matter is four days. Mr Syahpoosh, in particular, gave evidence that he filed the applications when he did, because his lawyer had told him on the same day to contact the Commission himself. Whilst the Applicants offered a number of reasons for the delay over the 25 day period, including Mr Syahpoosh’s illness, their efforts to resolve the matters in dispute with the Respondent by having discussions facilitated by a mutual friend, and the difficulties in obtaining legal advice from their preferred lawyer, Mr Syahpoosh’s evidence was that he did not know of the 21 day statutory time limit and therefore, there was no specific reason offered for the delay between 21 and 25 days.
With respect to the reasons offered by the Applicants for the delay in filing their claims, I accept that both Mr Syahpoosh and Ms Kazemy were distressed and shocked by the dismissal, but also the broader issues of a breakdown in the family relationship and the commercial and financial effects of the failed joint venture. In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[18], the Full Bench found that stress, shock, confusion and similar conditions are not unusual responses to the loss of employment, but are not “exceptional circumstances in and of themselves.”[19]
Mr Syahpoosh also argued that his brief admission to hospital, which he attributes to the stress of the termination of his employment, played a material role in the delay in filing his claim and that of his wife. However, his admission to hospital was for a few hours only on 6 November 2023. The hospital admission played no material role in the delay in filing the unfair dismissal claim when it was due to be filed some 18 days later. As the Respondent correctly submitted, Mr Syahpoosh’s hospital admission would have held more relevance to an extension of time application if it had occurred on the day the application was due to be filed.
Mr Syahpoosh gave evidence that he and his wife have needed sedative medication to deal with the impact of the termination, but no medical evidence was submitted to that effect.
There is no evidence or submission that Mr Syahpoosh or Ms Kazemy continued to suffer ill health over the period until the expiry of the statutory time limit such that they could not file their applications within time or instruct a solicitor to file on their behalf. To the contrary, the Applicants were able to engage with and provide instructions to a solicitor in respect of the joint venture dispute.
I also do not accept the Applicants’ submissions that it was a delay on the part of their lawyer in giving advice to pursue the matter as self-represented litigants that was the cause of the delay. Mr Syahpoosh could not confirm, when questioned, that he gave instructions to his lawyer to file an unfair dismissal claim or that a lawyer accepted any instructions to file a claim.
The evidence of the Applicants reveals a priority for obtaining legal advice with respect to the joint venture agreement. Whilst I do not criticise the Applicants for their focus on the joint venture dispute, it is not a reasonable excuse for the delay to now assert that it took them too long to get an appointment with the recommended solicitor, who after consulting with the Applicants, then failed to advise them about the statutory time limit or otherwise delayed in recommending to the Applicants they pursue the matter without representation, in the likely absence of instructions with respect to the dismissal.
The Applicants had engaged in what appear to be complex commercial arrangements with the Respondent and had the capacity to investigate the avenues available to them to challenge their dismissals. Had their focus been on pursuing actions to challenge their dismissals, they would have discovered the 21 day time statutory limit that applies to unfair dismissal claims. Ignorance of the statutory time limit has not been found by the Commission to be an exceptional circumstance.[20]
I do not accept that the reasons advanced by Mr Syahpoosh for his delay in filing his unfair dismissal claim are credible reasons to explain the delay of four days in filing his claim. There is nothing exceptional about the reasons he has put forward.
Ms Kazemy appeared to follow the lead of her husband and did not take any steps independent of her husband to understand or act on available avenues to dispute her dismissal. She relies on efforts to engage in informal dispute resolution with the Respondent with the assistance of mutual friends as the reason for the delay in filing her claim. Her evidence regarding these discussions were not disputed by the Respondent. However, there was no detailed evidence about the extent and duration of the discussions. Engaging in dispute resolution discussions is not out of the ordinary course, unusual or exceptional and it has not been asserted that they were so extensive that they can explain any notable period of the delay.
In the circumstances, I find that the reasons advanced by Ms Kazemy are not acceptable to explain the delay. Other than whatever effort she put towards informal dispute resolution discussions, Ms Kazemy did not take active steps on her own to file her claim and relied entirely on her husband. Relying on Mr Syahpoosh’s reasons for delay is not a credible reason for the delay of Ms Kazemy. There is nothing exceptional about Ms Kazemy’s reasons for delay.
The reasons advanced by the Applicants in this case for filing their applications four days out of time do not provide an acceptable explanation for the delay and are not out of the ordinary course, unusual or exceptional. The absence of a valid reason for the delay does not support a finding of exceptional circumstances.
When the applicant first became aware of the dismissal
There is no dispute that Mr Syahpoosh was made aware of his dismissal via text message on 3 November 2023. Irrespective of the words used by Mr Permeh in the message all parties have treated the words as terminating the Applicants’ employment.
The date that Ms Kazemy was made aware of her dismissal was in dispute. In her statement Ms Kazemy says: “on November 3, he abruptly dismissed both me and my husband through a sudden Persian message, without any prior notice.”
When cross-examined about the content of her written statement Ms Kazemy accepted that she “came to know through [her] husband” that her employment had been terminated and “the termination of [her] employment is related to the termination of [her] husband.” She also said: “there was no direct confirmation of my termination of my employment but because my husband’s employment was terminated, then my employment was terminated naturally on the same day.”
It is for the party terminating the employment to advise the other party of the termination. Mr Permeh ought to have done more to advise Ms Kazemy of her termination. However, it is very unlikely that Mr Syahpoosh did not inform Ms Kazemy of the text messages from Mr Permeh when he received them, and then advised her that their employment had been terminated on 3 November 2023. Ms Kazemy’s oral evidence was imprecise and contradictory to her earlier evidence given in writing, but I take into account that Ms Kazemy was giving evidence with the assistance of an interpreter. I prefer the evidence given by Ms Kazemy in her statement and find that Ms Kazemy came to know that her employment was terminated on 3 November 2023.
The Applicants therefore had the full balance of the 21 day statutory time period in which to file their unfair dismissals. This consideration does not support a finding of exceptional circumstances.
Any action taken by the applicant to dispute the dismissal
The Respondent asserts that the Applicants took no steps to dispute the dismissals, but did not challenge the evidence of Ms Kazemy that she went to efforts to engage in discussions with the Respondent to resolve the dispute between them. Whilst there was no detail in the evidence given about the nature and duration of the discussions, or whether the discussions included a focus on the dismissals and not just the joint venture arrangement, I consider it likely that some discussions occurred in which the Applicants disputed their dismissals.
However, because of the lack of detail in the evidence about the nature of action to dispute the dismissals, I find this consideration neutral in my decision.
Prejudice to the employer, including prejudice caused by the delay
The Respondent made a brief reference to the prejudice considerations discussed in the matter of Brodie-Hanns v MTV publishing[21], but did not otherwise press any arguments with respect to prejudice to them.
Whilst I accept the Respondent has spent time in defending the applications made out of time, I have also taken into account the short delay in the filing of the applications and find any alleged prejudice to the Respondent is a neutral factor in my decision.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[22] Further, the primary consideration is whether the Applicant has an arguable case.[23]
I agree with the Respondent that the underlying facts of the case are complex. The existence of the joint venture arrangements and their relationships to the employment of the Applicants also adds to the legal complexity.
The Respondent has foreshadowed a further jurisdictional objection, being that the Applicants were employed for a specified task – the joint venture, and that the employment of the Applicants was never intended to continue beyond the winding up of the joint venture.
Without testing what would have been detailed but likely contradictory evidence, I am unable to reach a view as to whether the Applicants have an arguable case. It is unlikely that the Applicants’ cases are without merit given the circumstances surrounding the dismissal itself, however, I cannot form a view about whether the Applicants’ claims would have survived the further jurisdictional objection foreshadowed by the Respondent.
This consideration is therefore neutral in my decision regarding the extension of time.
Fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[24] considered this criterion and said:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[25]
Fairness as between the person and another person in a similar position may involve a comparison of cases involving similar facts.[26]
The Respondent urges me to find that fairness between the parties is a factor weighing against an extension of time to allow the Applicants to file their unfair dismissal claims. The Respondent again referred to the case of Chitkara, that they say also involved a short delay with similar reasons advanced for that delay, as a comparison. In that case, an order for an extension of time was refused because the reasons for the delay including a short period of illness and a lack of knowledge about the statutory time limit and the Commission’s processes were not considered to provide a reasonable explanation for the delay.
The Applicants submitted that their case is unique, turns on its own facts and should not be compared to other matters.
I am persuaded that fairness between the parties weighs against ordering an extension of time. The circumstances surrounding the delay in filing the claim are not remarkable and would lead to unfairness for other applicants in similar situations who have been refused an extension of time. Chitkara is an appropriate authority for comparison.
Conclusion
I have considered and weighed all of the factors in section 394(3) of the Act in respect of this application for an extension of time. In weighing those factors, I have found factors that are neutral in my decision and factors that weigh against a finding of exceptional circumstances. I have not found any factors that weigh in favour of a finding that exceptional circumstances exist such that I should exercise my discretion to extend the time for the filing of the applications.
The reasons advanced by both Applicants do not adequately explain the delay in filing their claims four days after the expiration of the statutory time limit. The reasons advanced by the Applicants are also not out of the ordinary course, unusual or exceptional, either on their own or in combination. The Applicants had the balance of the 21 days to investigate and act on their discord concerning their dismissals, but had their focus on the broader concern of the failure of the joint venture agreement. Fairness between these Applicants and other applicants in similar circumstances also weighs against ordering an extension of time.
There are no exceptional circumstances in this case to warrant an order extending the time for filing the unfair dismissal applications. The Applicants unfair dismissal claims are therefore dismissed.
COMMISSIONER
Appearances:
S Syahpoosh and Z Kazemy, the Applicants on their own behalf.
B Duggan of DW FoxTucker Lawyers with permission, with M Permeh for Integrated Management System Solutions Pty Ltd.
Hearing details:
Adelaide
2024
8 February.
[1] Statement of Mr Mehrdad Permeh dated 25 January 2024 at paragraphs 12 and 13.
[2] Statement of Mr Mehrdad Permeh dated 25 January 2024 at paragraph 24.
[3] Supplementary Statement of Mr Mehrdad Permeh dated 6 February 2024 at paragraph 12.
[4] Statement of Mr Mehrdad Permeh dated 25 January 2024 at paragraph 26.
[5] Statement of Mr Mehrdad Permeh dated 25 January 2024 at paragraph 29 and 30.
[6] Statement of Mr Seyed Syahpoosh dated 3 February 2024 at paragraph 4.
[7] Submissions of Applicants dated 31 January 2024.
[8] Statement of Ms Zohreh Kazemy dated 3 February 2024 at paragraph 4.
[9] Ibid at paragraph 16.
[10] Statement of Seyed Syahpoosh at paragraph 5.
[11] Brodie-Hanns v MTV Publishing (1995) 67 IR 298.
[12] [2022] FWC 2826.
[13] Ibid at [21].
[14] Ibid at [27].
[15] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] (‘Nulty v Blue Star Group’).
[16] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39].
[17] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
[18] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
[19] Ibid as referenced in Chitkara at [20].
[20] Nulty v Blue Star Group at [14], quoted in Lu v Brightstar Resources Limited [2011] FWC 1014 and cited in Santi v Central Hotel Hobart [2021] FWC 3287 at [22], citing Nulty v Blue Star Group at [13].
[21] (1995) 67 IR 298. The Court in this matter found that a respondent “should not be lightly put to the cost and inconvenience of defending an application lodged out of time unless the interests of justice so dictate.”
[22] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph [14].
[23] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[24] [2016] FWCFB 6963.
[25] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] 750.
[26] Croker v Erndit Logistics Pty Ltd[2023] FWCFB 224 at [49].
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