Abdul Aboud v Nickal Pty Ltd T/A Plan & Grow - [2023] FWC 3216

[2023] FWC 3216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Abdul Aboud
v

Nickal Pty Ltd T/A Plan & Grow

(U2023/9816)

DEPUTY PRESIDENT BEAUMONT

PERTH, 5 DECEMBER 2023

Application for an unfair dismissal remedy

Introduction

On 9 October 2023, Mr Abdul Aboud (the Applicant) applied for an unfair dismissal remedy, having been dismissed by Nickal Pty Ltd T/A Plan & Grow (the Respondent) on 11 November 2022. The Respondent objected to the application on the ground that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.

It is important to note from the outset that this is not the first application the Applicant has made in this Commission concerning his dismissal from the Respondent. On 11 November 2022, the Applicant made an application under s 365 of the Act for the Commission to deal with purported general protections contraventions involving dismissal. The Respondent similarly objected to the that application on the basis it had been made outside of the statutory period in s 366(1) of the Act. Whilst the matter proceeded to hearing, it was unnecessary for the Commission to consider whether an extension of time to make the application was warranted under s 366(1)(b) because on 28 July 2023, it was determined that the Applicant’s dismissal took effect on 11 November 2022, and hence his application under s 365 was made in time.[1]

On 4 September 2023, the Applicant’s general protections application was listed for a private conference pursuant to s 368(1) of the Act. The Applicant submitted that the matter failed to settle and on 26 September 2023 the Commission issued a certificate under s 368 of the Act. That certificate stated that the Commission was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been, or were likely to be, unsuccessful.

On 27 September 2023, the Applicant requested the services of Morgan and Freeman Lawyers to act on his behalf in his ‘fair work’ matter.[2] On 4 October 2023, a legal representative from Morgan and Freeman Lawyers emailed a Mr Robert Greig, legal representative of the Respondent, and sought the Respondent’s consent for an arbitration.[3] On 6 October 2023, the Respondent advised the Applicant that it refused to consent to an arbitration.[4]

On 9 October 2023, the Applicant filed a notice of discontinuance with respect to his general protections application and later that same day, the Applicant made an unfair dismissal application.

The Applicant’s unfair dismissal application was made 311 days after the statutory deadline. The Applicant attributes the delay in filing his application on several factors. However, the predominant factor is that the Applicant did not realise that if a dispute under s 365 remained unresolved at the Commission stage, the dispute would need to be run in the Federal Court if the Respondent declined to arbitrate the dispute in the Commission. The Applicant…

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 3216
Decision Date: 5 DECEMBER 2023

CaseChat Overview and Summary

Abdul Aboud applied for an unfair dismissal remedy against Nickal Pty Ltd T/A Plan & Grow, claiming his dismissal was unfair. The Respondent objected to the application on the ground that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth). The primary issue for the Fair Work Commission was whether there were exceptional circumstances that warranted an extension of time for the Applicant to make his application. The Deputy President considered the statutory criteria in s 394(3) of the Act, including the reason for the delay, whether the Applicant became aware of the dismissal after it had taken effect, action taken by the Applicant to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the Applicant and other persons in a similar position. The Deputy President found that whilst the Applicant’s circumstances were undeniably challenging, the reasons for the delay did not constitute exceptional circumstances. The Applicant’s lack of knowledge about the potential need to pursue the general protections application in the Federal Court, if unresolved at the Commission stage, and his preference for the matter to remain in the Commission, did not establish exceptional circumstances. The Deputy President concluded that there were not exceptional circumstances warranting an extension of time and dismissed the application.

Orders