Abbas Raza v Harbour Roof Tiling Pty Ltd [2017] FWC 1662

1 Fair Work Act 2009 s.394—Unfair dismissal Abbas Raza v Harbour Roof Tiling Pty Ltd (U2016/11932) DEPUTY PRESIDENT DEAN SYDNEY, 23 MARCH 2017 Application for an unfair dismissal remedy – extension of time. [1] The following decision, now edited, was delivered ex tempore at the conclusion of the proceedings on 16 March 2017: [2] This decision concerns an application for an unfair dismissal remedy made by Mr Raza (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made on 28 December 2016. The Applicant's unfair dismissal application indicates that the date his dismissal took effect was 14 December 2015. The application is, therefore, some eight months out of time. The Respondent, Harbour Roof Tiling Pty Ltd, has raised additional jurisdictional objections, those being whether the Applicant has met the minimum employment period and whether the Applicant was an employee or independent contractor. [3] I would firstly deal with the application for extension of time and if I decided that there were exceptional circumstances to extend time then I would hear the parties in relation to whether the Applicant met the minimum employment period. The jurisdictional objection as to whether the Applicant was an employee or independent contractor would be dealt with subsequent to those two jurisdictional issues being dealt with. [4] The onus for establishing exceptional circumstances is on the Applicant, not the Respondent, and it was the Applicant who needed to provide a credible reason for the period that the application was delayed. I am required to take account of the matters set out in section 394(3) of the Act, which include: (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. [2017] FWC 1662 DECISION -- 1 of 4 -- [2017] FWC 1662 2 [5] The Applicant gave evidence and has been assisted through an interpreter. His evidence was that the reasons for his delay was that he was sick and unable to work and that he did not know about legal matters until his lawyer advised him, at which point he made his application. The Applicant has also been assisted by his friend, Mr Abbas, who has communicated with the Commission on the Applicant’s behalf. [6] The Applicant, via Mr Abbas, provided written submissions to the Commission. In relation to the out of time issue, I have paid regard to paragraphs 7 to 14 of the written submissions relied upon by the Applicant in relation to why the Commission should extend time. The majority of those submissions relate to workers compensation proceedings and whether the Applicant was a worker for the purposes of the workers compensation legislation. The Applicant in those submissions asserted that: “No notice of termination was ever given to the applicant and, therefore, the time could not possibly start to run.” [7] The test, however, is not the date that the contractual relationship ended. The test is the date that the employment relationship ended. I am satisfied that the employment relationship ended on 14 December 2015, being the date that the Applicant provided in his application that the dismissal took effect. The Applicant did not make any other detailed submissions despite my invitation to do so in relation to the other matters that I need to take account of in determining whether there are exceptional circumstances. [8] The Commission can extend time for lodging an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to those matters that I have already indicated that are set out in the Act. Only if the Commission is satisfied that there are exceptional circumstances, can it then exercise its discretion to extend time. The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd1, where the Full Bench said: “[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.” [9] The onus of establishing exceptional circumstances is on the Applicant, who needed to provide a credible reason for the whole period that the application was delayed. In terms of each of the criteria I need to take account of, the first is the reason for the delay. The Applicant's evidence, which I indicated above, was that the reasons for the delay was that he -- 2 of 4 -- [2017] FWC 1662 3 was sick and unable to work, and that he did not know about legal matters until so advised by his lawyer. [10] In this case, there was no medical evidence tendered in support of the Applicant’s claim that he was unwell. During the period, it is clear that he was able to pursue his workers compensation claim. Similarly, in relation to being unaware of legal matters, that is not an uncommon or unique situation. There has been no credible reason established for the whole period of the delay and this weighs against a finding that there are exceptional circumstances. [11] The second criterion is whether the person first became aware of the dismissal after it took effect. It is clear that the Applicant, and I find, was aware of his dismissal and included the date of 14 December in his application. This weighs against a finding that there are exceptional circumstances. [12] The third criterion is any action taken by the person to dispute the dismissal. There were no submissions or evidence as to any action taken by the Applicant to dispute the dismissal and this weighs against a finding that there are exceptional circumstances. [13] The next criterion is any prejudice to the employer, including prejudice caused by the delay. There were no submissions or evidence as to prejudice to the employer. While I am not persuaded that granting an extension of time would result in a prejudice to the Respondent, a lack of prejudice is an insufficient basis to grant an extension of time and a lack of prejudice in this case weighs in favour of finding exceptional circumstances. [14] The next criterion is the merits of the application. There were no submissions or evidence as to the merits of the application. I note that the Applicant will have two further hurdles to overcome if I extend time, those being whether the Applicant had served a minimum employment period and whether he was an employee. I am not able to make a final determination as to the merits of this matter. I, therefore, consider the merits to be a neutral consideration. [15] The final criterion is fairness as between the person and other persons in a similar position. Deputy President Gostencnik, in Morphett v Pearcedale Egg Farm2, 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 an application of consistent principles in cases of this kind, thus ensuring fairness as between the applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”3 [16] There were no submissions or evidence that there were any persons in a similar position and I find this to be a neutral consideration. [17] In conclusion, I have considered all the matters to which my intention is directed by the Act and I have considered the evidence and the submissions filed by the Applicant. I am not satisfied that there are exceptional circumstances which would warrant my granting of an exception to the statutory time limit. -- 3 of 4 -- [2017] FWC 1662 4 [18] The circumstances of the applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed. An order to that effect was issued in PR591062. DEPUTY PRESIDENT Appearances: A Raza, on his own behalf. D Dinnen, of Counsel, with B Genday for the Respondent. Hearing details: 2017. Sydney: March 16. Printed by authority of the Commonwealth Government Printer <Price code A, PR591243> 1 [2011] FWAFB 975. 2 [2015] FWC 8885. 3 Ibid at [29]. -- 4 of 4 --