Abdul Aboud v Nickal Pty Ltd - [2023] FWC 1862

[2023] FWC 1862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Abdul Aboud
v

NICKAL PTY LTD.

(C2022/7507)

COMMISSIONER SCHNEIDER

PERTH, 28 JULY 2023

Application to deal with contraventions involving dismissal

Mr Abdul Aboud (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Nickal Pty Ltd T/A Plan and Grow (the Respondent) in contravention of Part 3-1 of the Act.

The Respondent has objected to the application on the ground that the application was filed out of time. Before dealing with the dispute, I must be satisfied that the application was not made out of time.

Legislation

Section 366(1) of the Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

It is a matter of record that the application was made on 11 November 2022.

The parties are in dispute about when the dismissal took effect.

Background

The Applicant was engaged by the Respondent as a Support Worker on a permanent full-time basis.

The Applicant’s contract of employment with the Respondent required the Applicant to “maintain all necessary licences and permits to perform your duties and immediately advise the Employer of any issues with your licences or permits”.

The Applicant was the subject of a criminal investigation in April 2021.

Due to the nature of the criminal allegations against the Applicant, investigations were conducted by the Western Australia Police and the NDIS Commission.

On 20 April 2021, the Respondent issued the Applicant with a letter confirming that the Applicant’s employment with the Respondent had been “suspended”. The letter, which was submitted by the Respondent, stated the below:

“I am writing to you in regards to the suspension of your employment with Nickal PTY LTD pending investigation from 20 April 2021 until further notice…
… Whilst you are under suspension you must not carry out any of your work duties with Nickal PTY LTD, and you should not come into the workplace unless agreed upon…
…When the investigation is complete we will let you know of the outcome as soon as possible.”

The Respondent provided evidence which confirmed that, from 6 August 2021, the Applicant received a Banning Order from the NDIS Commission.

The Banning Order prevented the Applicant from being involved in the provision of supports and services, directly or indirectly, to people with disability for a period of 2 years.

The criminal proceedings against the Applicant were dropped on 6 October 2022.

Submissions and Evidence

The Respondent submits that the Applicant’s employment was terminated effective 28 July 2021. However, the Respondent was unable to provide any form of evidence to support this position.

Further, the Respondent could not provide evidence of any internal material which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 1862
Decision Date: 28 JULY 2023

CaseChat Overview and Summary

Abdul Aboud brought an application to the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009 (Cth) alleging that he was dismissed from his employment with Nickal Pty Ltd in contravention of Part 3-1 of the Act. The Respondent, Nickal Pty Ltd, objected to the application on the ground that it was filed out of time. Before dealing with the dispute, the Commission had to be satisfied that the application was not made out of time. Section 366(1) of the Act provides that such an application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

Abdul Aboud was employed as a Support Worker by Nickal Pty Ltd on a permanent full-time basis. He was required to maintain all necessary licenses and permits to perform his duties and immediately advise the employer of any issues with his licenses or permits. In April 2021, Abdul Aboud was the subject of a criminal investigation. On 20 April 2021, Nickal Pty Ltd issued a letter to Abdul Aboud confirming that his employment had been suspended. The Respondent submitted that the Applicant’s employment was terminated effective 28 July 2021, however, the Respondent could not provide any form of evidence to support this position. At the hearing, the Respondent could not confirm if the Applicant had been paid out any outstanding leave entitlements or similar. The Applicant submits that the Respondent had never issued any form of termination letter or confirmed that his employment with the Respondent had ceased.

The Commission found that the dismissal did not take effect until it was communicated to the Applicant. Based on the material before the Commission and the Respondent’s own admission, the Commission found that the Applicant had been dismissed. However, a dismissal cannot take effect until it is communicated to the employee. The Commission found that the dismissal did not take effect until the Applicant filed this application on 11 November 2022. The application having been made within 21 days of the date on which the dismissal took effect, the Commission did not need to consider the existence of exceptional circumstances or whether to allow a further period for the application to be made.

The Commission found that the application was not filed out of time and referred the matter for further directions.

Orders