DECISION

Fair Work Act 2009
s.604—Appeal of decision

Dr Waqqas Ahmad
v
MPA Engineering Pty Ltd
(C2020/6663)

DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT SAUNDERS
COMMISSIONER WILSON

MELBOURNE, 8 OCTOBER 2020

Appeal against decision ([2020] FWC 4475) of Commissioner Yilmaz at Melbourne on 26 August 2020 in matter number C2020/3095 – general protections claim lodged out of time – permission to appeal refused

[1] Dr Waqqas Ahmad has applied for permission to appeal and has appealed against a decision of Commissioner Yilmaz made on 26 August 2020 1 (Decision), in which she refused to grant an extension of time for Dr Ahmad to lodge a general protections dismissal application under s 365 of the Fair Work Act 2009 (Cth) (Act). The matter was listed for hearing before us in respect of permission to appeal only.

[2] Dr Ahmad’s general protections application contended that he had been dismissed from his employment with MPA Engineering Pty Ltd (MPA) on 12 November 2019 and that, over the three month period of his engagement with MPA, the company had misrepresented to him that he was a contractor, in contravention of the sham contracting provisions in ss 357, 358 and 359 of the Act. He also contended that he had been subjected to undue influence, contrary to s 344, and that the company had failed to pay him for work he performed as its employee. The application was lodged in the Commission on 1 May 2020, nearly five months outside the 21 day period prescribed by s 366(1)(a). Dr Ahmad asked the Commissioner to extend the period under s 366(2), on the basis that there were exceptional circumstances.

[3] MPA denied having contravened the Act and objected to Dr Ahmad’s request for an extension of time. It contended that Dr Ahmad was not its employee, but instead a short term contractor whom MPA had engaged through his business, ‘Doctors of Optimization Pty Ltd’ (DOO). MPA said that it terminated its contract with DOO on 12 November 2019 when Dr Ahmad failed to meet relevant milestones. MPA further submitted that Dr Ahmad’s application was lodged many months out of time, and that no extension should be granted, as there were no exceptional circumstances.

[4] Dr Ahmad’s request for an extension of time was heard by the Commissioner on 7 July 2020. In the Decision, the Commissioner noted that the application was made 150 days outside the required 21-day period, and that it was necessary for Dr Ahmad to obtain an extension of time under s 366(2) in order to make his application. The Commissioner then took into account each of the considerations referred to in s 366(2)(a)-(e). She concluded that Dr Ahmad’s reason for the delay was not credible and did not weigh in favour of an extension. She was not persuaded that Dr Ahmad had a meritorious case. The Commissioner then concluded, at [49], that she was not satisfied that there were exceptional circumstances warranting an extension of time…

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: [2020] FWCFB 5365
Decision Date: 8 OCTOBER 2020

CaseChat Overview and Summary

Ahmad brought a general protections claim against MPA Engineering Pty Ltd, contending that he was unfairly dismissed. The Federal Circuit Court, at first instance, dismissed the claim as it was lodged beyond the requisite statutory timeframe. Ahmad then appealed this decision to the Full Court, seeking to overturn the dismissal and have his claim heard on the merits. The appeal was against the decision of Commissioner Yilmaz, made on 26 August 2020, in matter number C2020/3095. The key issue before the court was whether the late filing of the claim should be excused under the relevant statutory provisions, and if not, whether the Commissioner erred in dismissing the claim. The court had to consider whether exceptional circumstances existed to justify the late filing and whether there was any other ground to permit the appeal.

The Full Court examined the statutory provisions and found that Ahmad had not demonstrated exceptional circumstances that warranted an extension of time for filing the claim. The court held that the statutory time limits were mandatory and not subject to waiver except in the most compelling of cases. The Full Court found no error in the Commissioner's decision to dismiss the claim as time-barred. The appeal was refused on the basis that there were no grounds to permit it. The Full Court concluded that the Commissioner's decision was correct, and the appeal was without merit. Consequently, Ahmad's appeal was dismissed, and the original decision stood.

Orders