[2015] FWC 3607 FAIR WORK COMMISSION DECISION



Fair Work Act 2009

s.394—Unfair dismissal

Mohammed Mahdi

v

Al-Hidayah Islamic School

(U2015/4203)



DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Mohammed Mahdi alleged that the termination of his employment by Al-Hidayah Islamic School (the School) on 9 February 2015 was unfair.

[2] His unfair dismissal application lodged on 20 March 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of 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 certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Mr Mahdi gave evidence that as a result of his dismissal, he suffered depression and anxiety. He also relied on the illness of one of his children who he said required a lot of attention. Mr Mahdi was advised by letter dated 25 March 2015 that if he relied upon a medical condition to support his application that he was required to provide a medical certificate or report. No medical certificate or report was produced to the Commission.

[6] Mr Mahdi said he waited for two weeks after his dismissal to check his pay. In his view, his pay was not calculated correctly. He gave evidence that it was only after his dispute about his pay was not resolved to his satisfaction that he decided to take the matter further.

[7] Mr Mahdi said he contacted legal aid but they could not assist him. He submitted that English is not his first language and he did not understand the system. On 26 February 2015, Mr Mahdi sent a letter to the School raising a grievance about his dismissal. He advised that if he did not get a response within seven days he will take the matter to court.

[8] The School submitted that Mr Mahdi speaks fluent English. To support this submission, a copy of Mr Mahdi’s CV was tendered. This CV stated that Mr Mahdi was fluent in both written and spoken English. Mr Abdullah, who was the School’s Administrator at the time of the dismissal, gave evidence that all communication with Mr Mahdi was in English and he had never given them any reason to believe that he did not understand English.

[9] Mr Mahdi gave evidence that he could understand basic English but he was not fluent in English. At the hearing, he gave evidence via a translator. When the contents of his CV were raised with him in cross examination, he said that the information in his CV was not correct, including information about his qualifications.

[10] While I accept that Mr Mahdi is not fluent in English, it was clear at the hearing that he had a greater understanding of English than he admitted to, as when the interpreter was interpreting what Mr Mahdi had said, Mr Mahdi would correct him in his own language causing the interpreter to alter what he was saying.

[11] The School further submitted that Mr Mahdi’s son’s condition was not new and his depression did not prevent him from visiting the School on a number of occasions to sort out his final pay.

[12] It is not unusual for employees to be unaware of their right to file an unfair dismissal claim. I accept that this is a greater problem for those who are not fluent in English. However, it is clear that Mr Mahdi knew by 26 February 2015 that he could seek a remedy in relation to his dismissal. At this time, Mr Mahdi had the assistance of a friend who was able to prepare a letter of demand for him. Mr Mahdi still had until 2 March 2015 to lodge his application.

[13] Having not had a satisfactory response about his grievance from the School, Mr Mahdi did not provide an explanation as to why it then took him until 20 March 2015 to lodge this application. This weighs against extending time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[14] Mr Mahdi was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[15] Mr Mahdi contacted the School about his final pay. It was not until 26 February 2015 that Mr Mahdi raised a formal grievance about his dismissal and advised the School if the matter was not resolved, he would take it further. I consider this criterion to be neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[16] There is no evidence of any prejudice to the School if an extension of time is given. This weighs in favor of extending time.

(e) the merits of the application;

[17] Mr Mahdi’s employment was terminated because he did not check his bus lists prior to departure, which caused a child to be late home which caused significant distress to his family. Mr Mahdi denied being responsible for this event. Mr Mahdi claimed that he was dismissed because he refused to enrol his children at the School.

[18] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[19] No submissions were made on this criterion and I consider it to be neutral.

Conclusion

[20] I find that there are no exceptional circumstances. Mr Mahdi’s lack of English explains part of the delay but not the whole of the delay. This is not a case where the merits of the claim are so strong as to outweigh the lack of a reasonable explanation for the whole of the delay. Mr Mahdi’s application for an extension of time is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

M. Mahdi on his own behalf.

G. Duncan and U. Abdullah for the Respondent.

Hearing details:

2015.

Melbourne and Perth (video hearing):

May 11, 25.

1 [2011] FWAFB 975 .

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