Ahsan Mahmood v The Trustee for Northbourne Avenue Hotel Trust
[2023] FWC 1535
•3 JULY 2023
| [2023] FWC 1535 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ahsan Mahmood
v
The Trustee for Northbourne Avenue Hotel Trust
(C2023/2040)
| DEPUTY PRESIDENT DEAN | CANBERRA, 3 JULY 2023 |
Application to deal with contraventions involving dismissal – extension of time refused.
On 6 April 2023, Mr Ahsan Mahmood (Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving the dismissal from his employment with The Trustee for Northbourne Avenue Hotel Trust (Respondent).
The Applicant was employed at Pacific Suites Canberra operated by the Respondent from 19 October 2022 as a casual Night Auditor until he was dismissed for performance issues.
Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
The parties are in dispute as to when the Applicant’s dismissal took effect. The Applicant claims that his dismissal took effect on 16 March 2023 which is the date he received the termination letter. The Respondent contends that the Applicant’s casual employment ended on 15 March 2023 when he was verbally advised of his dismissal.
If the Applicant’s employment ceased on 15 March 2023, his application was made one day outside the statutory time limit and cannot proceed unless the Commission grants a further period for the application to be made.
A hearing was held on 28 June 2023 to determine whether the application was lodged within the required time, and if not, whether an extension of time should be granted. At the hearing the Applicant appeared and gave evidence on his own behalf. Ms Vanessa Anderson (National Director of Human Resources) appeared and gave evidence for the Respondent. Mr Tarn Morrow, former General Manager of Pacific Suites Canberra, was also called to give evidence for the Respondent.
Effective date of dismissal
It is common ground that the Applicant received the termination letter by email from Ms Anderson on 16 March 2023. This followed a meeting on the previous day, 15 March 2023, attended by the Applicant, Mr Morrow and Ms Anderson.
The termination letter is set out in full as follows:
“15 March 2023
Ashan Mahmood
[address]
Dear Ashan,
RE: TERMINATION OF CASUAL EMPLOYMENT
I am writing to follow up from our meeting with you, Tarn Morrow (General Manager) and me (National Director of HR) yesterday, 14th March 2023.
To recap, the hotel has received a guest complaint regarding a stay on Saturday 11th March 2023, which resulted in the full cost of the stay being refunded to the guest. The guest complaint was (in summary) that they had locked themselves out of their room in the middle of the night and could not find anyone at the Front Desk. They called the ‘out of hours’ number and there was no answer for more than half an hour. The guest waited for over an hour in Reception and eventually slept on the sofa bed of their daughter's room, without access to their medication.
The GM conducted a thorough investigation of what happened, which included analysis of the CCTV footage of the Front Office reception area. What has been confirmed is that you were the Night Auditor on shift and were missing from 00.37am until 2.58am. You had written to me and explained that during the shift, you felt ill and took yourself off to sleep in a guest room. Your actions are in breach of the company's policies and procedures, and your actions have caused the hotel financial and reputational damage.
Further investigation into your unauthorised absence from the Front Office Reception area has revealed several more incidents where there are long periods of time you are not in the Front Office Reception area. Specifically, we have evidence to show that you were absent on the following dates and times:
Saturday 26th February 2023 from 5.05am - 6.50am.
Sunday 27th February 2023 from 2.42am - 3.45am and then again from 3.57am - 5.16am.
Saturday 11th March 2023 from 3.38am - 5.20am and then again from 5.59am -6.13am.
Sunday 12th March 2023 from 00.37am - 2.58am (already explained but remains in breach of policy)
In our meeting with you yesterday, you were afforded an opportunity to explain these unauthorised absences during your shifts and you have failed to provide a satisfactory explanation.
As we discussed in the meeting yesterday, you have demonstrated poor work performance of your duties and have breached company policies and procedures, which have had a negative impact on the hotel. Your unexplained and unauthorised absences whilst on shift have also left the hotel and its guests vulnerable to security issues an you have failed in your Workplace Health & Safety duty of care to our hotel guests.
As we discussed in the meeting yesterday, you are a casual employee of the Pacific Suites Canberra who has been employed less than 6 months with the company. Under the Fair Work Act 2009 (Cth), there is no notice requirement for the termination of casual employment. I am writing to advise you that your casual employment has been terminated (for reasons explained in this letter), effective immediately.
I also note that in the meeting yesterday, you raised concerns that you believe you are missing some unpaid wages that you have never brought to the attention of the General Manager, nor the Human Resources Department previously. The GM and I both confirmed verbally to you yesterday, that if you can provide details of any hours you feel may be outstanding, we can investigate and if it can be verified, then the company will pay any outstanding wages for time worked.
If you have any questions, please do not hesitate to contact my office directly.
Yours sincerely,
Vanessa Anderson
National Director of Human Resources”
It is clear that the termination letter contains an error which referenced the meeting held on 14 March 2023 rather than 15 March 2023. Ms Anderson in her oral evidence accepted that she had put down the wrong dates and affirmed that the letter should have been dated 16 March 2023.
Corroborating evidence was given by Mr Morrow and Ms Anderson that the Applicant was advised verbally at the meeting on 15 March 2023 that his employment was being terminated with immediate effect, and the termination letter was the official confirmation of what had already been advised to him verbally at the meeting on 15 March 2023.
The Applicant maintains that his dismissal took effect on 16 March 2023 when he received the termination letter. He claims that he was not advised of his dismissal in the meeting on 15 March 2023.
On the material before me, I am satisfied and find that the dismissal took effect on 15 March 2023. I prefer the evidence of Mr Morrow and Ms Anderson as to what occurred at the meeting on 15 March 2023. Further, the email Ms Anderson sent to the Applicant attaching the termination letter was in the following terms:
“Hi Ashan
Please find attached letter for your records.
Kind regards
Vanessa”
The wording of this email suggests that the letter confirmed what had already been conveyed to the Applicant, that being that his employment had been terminated.
Given my finding, the application was made one day outside the prescribed period. I now turn to consider whether an extension of time should be granted.
Extension of time
Section 366(2) of the Act provides:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
The onus of establishing exceptional circumstances lies with the Applicant.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]
On 3 April 2023 the Applicant filed an application for an unfair dismissal remedy. He said he was contacted by the Commission on 6 April 2023 and was told he should discontinue that application as he had not been employed for the minimum employment period, being 6 months. He said he then contacted Youth Law Australia who advised him to make this general protections application. He did so on the same day.
I am not satisfied the Applicant has provided an acceptable reason for the delay. There is nothing out of the ordinary in the circumstances described by the Applicant.
This weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
As noted earlier, the Applicant made an application for an unfair dismissal remedy within the required timeframe but withdrew this application as he had not met the minimum employment period and was unable to proceed with it. This application was only made because he was unable to proceed with his unfair dismissal application.
I consider this to weigh neither in favour of or against a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I do not consider the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
For the purpose of determining whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case.’[4]
The Applicant in his application contends that he was dismissed after he made a complaint against the front office manager. It was alleged that the Respondent contravened sections 340, 343 and 344 of the Act.
The Respondent denies the allegations and submits that the Applicant was dismissed from his employment due to unsatisfactory performance which had negatively impacted the business both financially and reputationally.
The Respondent also noted that it was due to cease trading on 17 March 2023, of which the Applicant was fully aware.
On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[5] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[6]
Neither party made submissions on this criterion and I therefore find this to be a neutral consideration.
Conclusion
Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Ms Walton are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
A Mahmood on his own behalf.
V Anderson for The Trustee for Northbourne Avenue Hotel Trust.
Hearing details:
2023.
By telephone:
June 28.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[5] [2015] FWC 8885.
[6] Ibid at [29].
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