Ahsanul Kabir v Kencross Pty Ltd T/A Tapps Maintenance Services & Tapps Mobile Services

[2013] FWC 2811

[2013] FWC 2811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ahsanul Kabir
v
Kencross Pty Ltd T/A Tapps Maintenance Services & Tapps Mobile Services
(C2013/3520)

COMMISSIONER WILLIAMS PERTH, 9 MAY 2013

Application to deal with contraventions involving dismissal - extension of time.

[1] Mr Ahsanul Kabir (the applicant or Mr Kabir) made an application to deal with a general protections dispute under section 365 of the Fair Work Act 2009 (the Act) on 8 March 2013. He subsequently lodged an amended application 10 days later on 18 March 2013.

[2] The respondent asserts that the applicant was dismissed on 3 February 2013 and consequently objects to this application on the grounds that it has been made after the 21 days statutory time period and objects to any extension of time to make this application.

[3] The relevant part of the legislation is set out below.

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(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.”

[4] Consequently the parties were invited to provide written submissions on the respondent’s objection.

[5] What is apparent from the parties’ submissions is that there is no dispute about the facts in terms of the events but rather a disagreement as to what those events mean in terms of the date of dismissal.

Consideration

[6] Both the original application dated 8 March 2013 and the amended application dated 18 March 2013 state at question 3.2 that the date of dismissal was 3 February 2013 which is the same date asserted by the respondent.

[7] The applicant has provided the Commission with a series of email chains that were included with his application and some also in response to the respondent’s objection that his application is out of time.

[8] These emails show that around late January 2013 the respondent sought to relocate the applicant to work at the Secret Harbour Shopping Centre. When the applicant however realised that the Secret Harbour Shopping Centre was 70 km from his home he contacted them and as he states in his amended application explained to them that:

“...“it is too far for me.I am not able to do the job because i don’t have a reliable transportation to go there.”I also offer them,either they can give me any other job or i can use my annual leave until they find me a position.” (sic)

[9] In the original application Mr Kabir explains the chain of events as follows.

[10] He received an email on 1 February 2013 about the deployment to Secret Harbour. He agreed to do that without knowing the distance from his place to Secret Harbour.

[11] Mr Kabir says he sent a text to the Operations Manager on 3 February 2013 and on Monday, 4 February 2013 received an email:

“...informing me they will terminate my employment, if cant work at secret harbour. As well 5th feb 2013 i received another email from his operation manager repeating the same thing.”(sic)

[12] One of the emails provided by Mr Kabir attached to his application is dated 4 February 2013 at 1.18 p.m. from Mr John Tapiata the Managing Director and that email says:

“We have offered you a position as a full time guard at Secret Harbour Shopping Centre. Due to personal and medical reasons you are unable to do any shifts at Secret Harbour. The ombudsman has advised us, since we have given you an opportunity to work full time and you are failing to do this, this gives us no other option but to let you go. If you have any queries please do not hesitate to contact us.”

[13] One of email chains provided by Mr Kabir includes an email dated 5 February 2013 from Mr Pola the Operations Manager to Mr Kabir which refers to previous emails sent on 1 and 4 February 2013 regarding his deployment and there being no response to those emails. This email concludes by saying:

“It is important that we are advised based on the previous correspondence failure to which the company will have let you go as a result if no feedback or action provided.”

[14] In a reply email Mr Kabir on 6 February 2013 at 1.21 p.m. explains the problem with his transportation and that he does not want to give a commitment which he can’t keep and that he is happy to do any other shift if they have a position which is suitable for him.

[15] On the same day, 6 February 2013, at 3.43 p.m. Mr Pola in reply says:

“Thank you for getting back to us. Unfortunately enough Secret Harbour Shopping Centre is all we have at this time. Alternatively you can change to casual status and we will give you any kind of work that comes.”

[16] Mr Kabir in his application says on 7 February 2013 he went to the office to have a chat with John Tapiata to resolve this problem. He says he explained he was willing to work as a static guard or mobile patrol officer but due to unreliable transportation he was not able to go to Secret Harbour Shopping Centre. Mr Kabir says that John Tapiata to whom he was speaking refused to give him any other job and forced him to leave the office.

[17] On 1 March 2013 lawyers on behalf of the respondent wrote to Mr Kabir stating that they are instructed that his employment ceased on 3 February 2013. The letter explains he had refused or been unable to perform the duties at the Secret Harbour Shopping Centre as instructed and that therefore given the respondent has no other full-time patrol work available to offer:

“...your employment contract with our client has been frustrated.”

What was the effective date of dismissal?

[18] Considering the facts as set out above my conclusion is that the Managing Director Mr Tapiata by his email to the applicant on 4 February 2013 advised Mr Kabir of the employer’s decision to “let him go” in other words to dismiss Mr Kabir from his employment. The situation was confirmed by Mr Pola’s email of 6 February 2013 at 3.43 p.m.

[19] What is clear from the email sent by Mr Kabir is that at least by 6 February 2013 Mr Kabir had seen these emails from the Managing Director and Operations Manager and so by this date he was aware that his employment had been ended. The dismissal therefore had taken effect 1 at the latest by 6 February 2013.

[20] That being the case under the legislation the applicant is required to have made this application to the Commission no later than 27 February 2013.

[21] The application n was made on 8 March 2013 and consequently this application has been made out of time.

[22] As the respondent points out the applicant does not appear to have positively made an application for the Commission to extend the time for him to have made his application. However in these circumstances where the applicant is self represented it is appropriate to assume that this is his intention and I will proceed on that basis to consider whether further time should be allowed for the applicant to make this application.

[23] As provided in section 366(2) of the Act the Commission may allow a further period in which to make an application but only where the Commission is satisfied that there are exceptional circumstances.

[24] Considering the matters that are to be taken into account in this case, firstly the applicant has not provided any explanation for the delay in making the application.

[25] The information provided demonstrates that the applicant was aware that his employment had ended on 3 February 2013 and in fact specified that as the date of his dismissal in both his original application and the amending application. Further the facts of the matters set out above demonstrate that the applicant understood this was the case. Shortly after this date the applicant even suggested that he be allowed to take a period of leave to provide time for the employer to find him another job, but this did not occur.

[26] There is in this instance no adequate explanation for the delay.

[27] The applicant did take some action to dispute his dismissal in the sense that he sought to discuss the situation with Mr Tapiata in his office on 7 February 2013 and took the matter up with the company through later correspondence.

[28] The period of delay in this case is relatively short and it is not apparent that there is any particular prejudice that the respondent would suffer.

[29] It is difficult from the material provided by the applicant to be clear on what contravention of the general protections are alleged in this matter. There are a number of allegations the applicant makes that could form grounds for an application, including that the applicant had enquired about his conditions of employment in the period leading up to his dismissal. The question as always to be determined by a court would be whether those were the reasons for his dismissal or not. Having said that on its face the reason for the dismissal was to do with the limited availability of work the respondent could offer the applicant rather than reasons that would be contraventions of the general protections provisions. In this instance the application is not without merit in the sense that there is an arguable case that could be pursued but on the limited information available I would assess the merit as being a neutral issue in terms of the consideration of whether an extension of time should be allowed or not.

[30] There is no information regarding the fairness between the applicant and other persons in a like position.

[31] Considering these matters that are to be taken into account I am not satisfied that there are exceptional circumstances in this instance and therefore I will not allow a further period for this application to be made.

[32] The application cannot be allowed because it was made more than 21 days after the dismissal took effect. Accordingly this application will now be dismissed and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

 1   Commonwealth of Australia (Australian Taxation Office) v Wilson [PR901127] at paragraph 11.

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