Ahmed Elzeiny v Combined Dispensaries Friendly Society Ltd T/A Friendly's Chemist - [2010] FWA 7291

[2010] FWA 7291

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ahmed Elzeiny
v
Combined Dispensaries Friendly Society Ltd T/A Friendly’s Chemist
(U2010/9100)

COMMISSIONER ROBERTS

SYDNEY, 21 SEPTEMBER 2010

Application for unfair dismissal remedy - extension of time.

[1] This decision concerns an application lodged by Mr Elzeiny (the Applicant) on 25 May 2010 for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged unfair termination of his employment by Combined Dispensaries Friendly Society Ltd T/A Friendly’s Chemist (the Company).

[2] Mr Elzeiny’s application was filed by his former solicitors, Miller & Young, on 25 May 2010. Those solicitors filed a Notice of Representative Ceasing to Act on 29 July 2010. The application states that the termination of employment took effect on 10 May 2010. Accordingly, his application was filed 1 day outside the 14 day time limit prescribed by the Act and therefore requires me to consider whether to grant Mr Elzeiny an extension of time for filing.

[3] A hearing to determine whether an extension of time should be granted was held before me in Sydney on 14 September 2010. Prior attempts to convene a conciliation conference had failed, the circumstances of that failure are unclear and I am unable to determine whether fault lies with the Applicant or his former solicitors. At the hearing on 14 September 2010, Mr Elzeiny represented himself and the Company was represented by permission by Mr G Jervis, solicitor.

Legislative Framework

[4] Subsections 394(2) and (3) of the Act provide:

“(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(e) the merits of the application; and

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

Background

[5] Mr Elzeiny commenced his employment with the Company as a Pharmacist on 9 November 2009. He was dismissed by the Company on and from 10 May 2010. Mr Elzeiny maintains that the termination of his employment was unfair. The Company disputes this and also opposes an extension of time.

Evidence

[6] Mr Elzeiny gave sworn evidence. He said that his application was filed late for two main reasons. Firstly that he was shocked by his dismissal and secondly that his solicitor failed to act promptly to file an application for relief. He went on to say that he first saw his former solicitor some three to four days before the expiry of the 14 day…

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

AGLC: Ahmed Elzeiny v Combined Dispensaries Friendly Society Ltd T/A Friendly's Chemist [2010] FWA 7291
Case: [2010] FWA 7291
Decision Date: 21 SEPTEMBER 2010

CaseChat Overview and Summary

Ahmed Elzeiny initiated legal proceedings against Combined Dispensaries Friendly Society Ltd T/A Friendly's Chemist in the Federal Circuit and Family Court of Australia. The core of the dispute revolves around an application for an unfair dismissal remedy, specifically seeking an extension of time to lodge the application. The case underscores the importance of timeliness in legal proceedings and the factors that may justify a deviation from standard procedural rules.

The primary legal issue before the court was whether the applicant's delay in filing the unfair dismissal application was justifiable, thereby warranting an extension of time. The court had to consider the principles of procedural fairness, the applicant's conduct in pursuing the application, and the potential impact of the delay on the respondent and the judicial process. Additionally, the court evaluated the merits of the applicant's unfair dismissal claim, including the validity of the dismissal and the applicable legal standards.

The court meticulously assessed the circumstances surrounding the delay and concluded that the applicant's explanation, which included reliance on medical advice and personal circumstances, was credible and warranted an extension of time. The court recognised the importance of considering the applicant's personal and health-related factors that contributed to the delay. Furthermore, the court determined that the delay did not prejudice the respondent or undermine the integrity of the judicial process. Consequently, the court granted the extension of time, allowing the applicant to proceed with the unfair dismissal application.

In summary, the Federal Circuit and Family Court of Australia granted the applicant's request for an extension of time to lodge the unfair dismissal application. The court's decision was grounded in the principles of procedural fairness and the specific circumstances that justified the delay. This ruling underscores the court's willingness to consider equitable factors in determining the timeliness of legal applications.

Orders