Abdulsattar Naji v Botticelli of Brighton Restaurant Pty Ltd

[2019] FWC 5774

[2019] FWC 5774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Abdulsattar Naji
v
Botticelli of Brighton Restaurant Pty Ltd
(C2019/2203)

DEPUTY PRESIDENT BOYCE SYDNEY, 4 DECEMBER 2019

Application to deal with contraventions involving dismissal — dispute as to whether a “dismissal” occurred within the meaning of the Fair Work Act 2009 — Cameron Milford v Coles Supply Chain Pty Ltd [2019] FWCFB 7658 applied — no question of extension of time arises — application remitted to Fair Work Commission Registry for listing of conciliation conference

[1] On 4 April 2019, Mr Naji Abdulsattar (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by filing a Form F8 with the Commission’s Registry in Melbourne.

[2] The Applicant claims that his employment with Botticelli of Brighton Restaurant Pty Ltd (Respondent) was terminated (at the initiative of the Respondent) on 18 March 2019.

[3] The Respondent submits that the Applicant verbally resigned his employment on 4 March 2019 on notice, with his termination date being 10 March 2019. The Respondent therefore asserts that not only is the application three day’s out of time, but that the Applicant was not “dismissed” within the meaning of the Act.

[4] It is not in dispute that if the Applicant’s effective date of dismissal was 10 March 2019, his application will have been lodged three days’ outside the 21-day statutory time limit.

[5] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect.

[6] On 23 July 2019, a hearing was conducted in respect of a purported request to extend time for the filing of the application. Permission for each party to be legally represented was not opposed. I granted such permission to be legally represented to both parties on the basis of the mixed questions of law and fact involved, extending to the proceedings being more efficiently dealt with via the assistance of legal representatives.

[7] The Applicant’s primary position is that, on the evidence, his application was not lodged out of time in that his dismissal occurred on 18 March 2019, and he lodged his application on 4 April 2019 (within the 21-day time limit).

[8] This is to be contrasted with the position of the Respondent who submits, on the basis of the evidence tendered by it at the hearing, that the Applicant resigned his employment on 3 March 2019 (effective 10 March 2019), meaning that the Applicant was not “dismissed” (within the meaning of ss.12 and 386 of the Act), and that the application filed 4 April 2019 is out of time.

[9] Whilst the Respondent accepted that the Commission cannot determine whether the Applicant has been “dismissed” for the purposes of s.366 of the Act (as it is a jurisdictional issue to be determined by an eligible court), the Respondent submitted that the Commission is required, at an out of time hearing, to determine the cessation date of the employment so as to assess whether a general protections application has been filed within or outside of time (and determine whether a request to extend time ought be granted).

[10] The alternative position of the Applicant, if his evidence as to the date he asserts he was dismissed is not accepted by the Commission, is that if a general protections application on its face asserts that a “dismissal” took effect on a particular date that is within time, no question on extension of time arises. Rather, the date identified by an Applicant should just be accepted, even if a Respondent disputes it. Further, if the date of a resignation or dismissal is contested, that is a contest that arises only in respect of the merits and/or the jurisdiction of a general protections application, which the Commission cannot ultimately determine (i.e. it is a matter for an eligible court to determine). The Applicant’s position is perhaps best encapsulated in the following transcript exchange (on 23 July 2019) with Mr Champion (Counsel for the Applicant):

“THE DEPUTY PRESIDENT: Just on that proposition, an employee resigns on 1 January and comes back on 1 July, the employer says, "Go away, you resigned on 1 January", the employee then brings a general protections application [alleging he or she was dismissed on 1 July].

MR CHAMPION: Yes.

THE DEPUTY PRESIDENT: The resignation is irrelevant on 1 January in terms of any question of time starting for the 21 days?

MR CHAMPION: Well, yes, you may say that that is regrettable …”

[11] Having considered the reasoning of the Full Bench of the Commission in Cameron Milford v Coles Supply Chain Pty Ltd, 2 I consider that I am unable to depart from the determination made in same. In this regard, given the fact that the parties are in dispute as to whether a “dismissal” has in fact occurred within the meaning of ss 12 and 386 of the Act, any determination by me on this issue delves (directly or indirectly) to questions of merit (which I am unable to determine).

[12] In view of the foregoing, at law, and notwithstanding any genuine dispute on the facts, I must conclude that the Applicant, for the purposes of his general protections application, was dismissed by the Respondent on 18 March 2019. Having made this conclusion, no question of extension of time arises. The application will be remitted back to the Fair Work Commission Registry for the listing of a conciliation conference.

DEPUTY PRESIDENT

Appearances:

Mr M Champion, of Counsel, instructed by Mr V da Gama, appeared for the Applicant.

Mr L Howard, of Counsel, instructed by Ms C Hartigan, appeared for the Respondent.

Hearing details:

A hearing was conducted in Sydney (with video-link to Melbourne) on 23 July 2019.

Printed by authority of the Commonwealth Government Printer

<PR711490>

 1   Fair Work Act 2009, ss 366(1) and (2).

 2   [2019] FWCFB 7658 at [22]-[30].