Abu Murad v Command51 Services Pty Limited [2024] FWC 1091

1 Fair Work Act 2009 s.394—Unfair dismissal Abu Murad v Command51 Services Pty Limited (U2024/3239) DEPUTY PRESIDENT DEAN CANBERRA, 1 MAY 2024 Application for an unfair dismissal remedy – extension of time – no exceptional circumstances. [1] Mr Abu Murad (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed from his employment with Command51 Services Pty Limited (Respondent). [2] Section 394(2) of the Act provides 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 the Commission allows pursuant to s 394(3). The Applicant’s dismissal took effect on 26 February 2024 and he made this application on 21 March 2024, which is 3 days outside the 21 day period. [3] The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). [4] The matter was listed for hearing on 30 April 2024. The Applicant appeared on his own behalf and Mr D Martyr (Director) appeared for the Respondent. [5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.1 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.2 [6] The onus rests with the Applicant to demonstrate that there are exceptional circumstances. [2024] FWC 1091 [Note: An appeal pursuant to s.604 (C2024/3323) was lodged against this decision - refer to Full Bench decision dated 17 July 2024 [[2024] FWCFB 307] for result of appeal.] DECISION -- 1 of 5 -- [2024] FWC 1091 2 [7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [8] 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. I now consider these matters in the context of this application. Reason for the delay [9] The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.3 [10] The Applicant has provided the following reasons for the delay: “a) The effect of the termination on my mental health including generalised anxiety, depression, emotional outbursts, and panic attacks. b) The effect of the termination on my physical health as a diabetic patient and after suffering in hospital for over 2 months due to a serious health condition. c) The time spent on my mental and physical health in this period which meant I could not access legal resources and/or advice. d) The sudden decline of my elder sister’s health after suffering a brain stroke resulting in her being admitted to the Intensive Care Unit in BIRDEM General Hospital in Bangladesh. e) The emotional impact and time taken to contact my family and relatives overseas to check on my sister’s medical condition and enquire about travel arrangements during the relevant period. f) The time spent, focus and emotional drain of trying to support my family during the Relevant Period.” [11] The Applicant submits that all of these circumstances taken together explain his incapacity to lodge this application within the required timeframe. -- 2 of 5 -- [2024] FWC 1091 3 [12] In essence, the circumstances relied on by the Applicant are related to his health. He says the ‘fake story’ and false accusations made by the Respondent about his performance has damaged him mentally. [13] Unfortunately, it is not exceptional that a dismissal has a negative impact on a person’s health, particularly in relation to anxiety and the like. Shock and distress are also common responses to dismissal. In my view, for health issues to be a factor weighing in favour of a finding that there are exceptional circumstances, medical evidence is needed to show that the health issues were such as to prevent a person from making their application within the timeframe. The Applicant has not produced any such medical evidence which would support his contention that his health issues prevented him from being able to make this application within time. The only medical evidence provided by the Applicant related to his surgery and hospitalisation prior to his dismissal. [14] As a result, I am not satisfied that the reasons for the delay advanced by the Applicant are exceptional. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect [15] The Applicant was aware of the dismissal on the day it took effect. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances. Action taken to dispute the dismissal [16] The Applicant gave evidence that he sought advice from Legal Aid NSW on 21 March 2024 and lodged the application on the same day. Otherwise, the Applicant did not take any action to dispute the dismissal until the day the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances. Prejudice to the employer [17] While I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. Merits of the application [18] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission should not embark on a detailed consideration of the substantive case. [19] The Applicant denies the reason provided for his dismissal was valid reason, in that he was a good worker who had worked for the Respondent for a number of years without any issue -- 3 of 5 -- [2024] FWC 1091 4 being raised about his performance. He also says the dismissal was procedurally unfair in that he received no warnings prior to his dismissal. He was dismissed two weeks after his return to work following surgery, having spent two months in hospital. [20] The Respondent says the Applicant was unable to perform his duties to the required standard and they had received a complaint from a client regarding the quality of his work. It also says that his manager had discussed the Applicant’s performance with him after he returned to work post-hospitalisation. [21] The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. While it is not possible to make any firm or detailed assessment of the merits, it does seem that there may be a question as to whether the dismissal was fair in the circumstances. [22] I consider the merits weigh slightly in favour of a finding of exceptional circumstances. Fairness as between the person and other persons in a similar position [23] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. [24] Neither party made any submission about this criterion and as such I consider this to be a neutral consideration. Conclusion [25] It was obvious the Applicant was very upset about his dismissal and considered he had been harshly and unfairly treated. However, I must consider and weigh each of the matters that I am required to take into account, and a determination that the circumstances for late lodgement of an application are exceptional is a high bar for any applicant. [26] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. -- 4 of 5 -- [2024] FWC 1091 5 DEPUTY PRESIDENT Appearances: A Murad on his own behalf. D Martyr for Command51 Services Pty Limited. Hearing details: 2024. By telephone: April 30. Printed by authority of the Commonwealth Government Printer <PR774256> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. -- 5 of 5 --