Ashour Nissan v All Graduate T/A Translating and Interpreting

[2020] FWC 4065

[2020] FWC 4065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashour Nissan
v
All Graduate T/A Translating and Interpreting
(U2020/9574)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 7 AUGUST 2020

Application for an unfair dismissal remedy – whether applicant dismissed – section 587(1)(c)

[1] On 14 July 2020 Mr Ashour Nissan made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act).

[2] Mr Nissan said that his employment with the respondent ended on 20 December 2019. The matter was listed for an extension of time hearing on the basis that Mr Nissan’s unfair dismissal application had not been made within 21 days.

[3] The respondent submits that Mr Nissan has not been dismissed from his employment as a casual interpreter/translator. The respondent therefore seeks that Mr Nissan’s application for an unfair dismissal remedy be dismissed. It otherwise opposes the application for an extension of time.

[4] For the reasons that follow, I dismiss Mr Nissan’s application for an unfair dismissal remedy on the basis that it has no reasonable prospects of success.

Preliminary matter

[5] The respondent submits that its company name is NEX Corporation Pty Ltd T/A All Graduates Interpreting & Translating. This is consistent with the company name specified in Mr Nissan’s employment contract dated 7 February 2019 which is before the Commission. However, Mr Nissan’s application identifies the respondent as All Graduate T/A Translating and Interpreting.

[6] Mr Nissan has not provided any responsive views to the proposal to amend the name of the respondent in the application to NEX Corporation Pty Ltd T/A All Graduates Interpreting & Translating.  

[7] While s.586 of the Act provides the Commission with the power to amend an application on terms that the Commission considers appropriate, 1 in the absence of a response from Mr Nissan and given my determination at [23], I am not persuaded to exercise my discretion to amend the name of the respondent in the application.

Background

[8] On 8 February 2019, Mr Nissan commenced employment with the respondent as a casual interpreter/translator to provide interpreting services in the Arabic, Assyrian and Chaldean languages pursuant to a contract of employment dated 7 February 2019.

[9] Mr Nissan’s employment contact relevantly states:

“As a casual interpreter, you will be based at various client sites directed by us from time to time. This may include Telephone interpreting and Video Interpreting.

…

You acknowledge and agree that NEX may change your place of work, from time or time, or permanently to another location within a reasonable distance from your current work place.”

[10] In or about July 2019, Mr Nissan was assigned to the Broadmeadows service centre to provide sessional interpreting services. Following a complaint, the respondent received a request on 23 December 2019 that another interpreter/translator replace Mr Nissan at this site.

[11] Mr Nissan contends that he was not issued with a warning in respect of his conduct which resulted in the complaint, nor has the complaint been substantiated.

[12] Accordingly, Mr Nissan’s application for an unfair dismissal remedy seeks redress for the respondent’s decision to replace him at the Broadmeadows service centre.

Has Mr Nissan been dismissed?

[13] In considering Mr Nissan’s application for an extension of time, it must first be determined whether Mr Nissan has been dismissed by the respondent. This is because Mr Nissan must be “a person who has been dismissed” to be eligible to make an unfair dismissal application under s.394 of the Act.

[14] Section 386(1) of the Act provides that a person has been dismissed if:

(a) the person’s employment has been terminated on the employer’s initiative; or

(b) the person has resigned, but was forced to do so because of conduct, or a course of conduct engaged in by the employer.

[15] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are relevant to Mr Nissan’s application before the Commission.

[16] It is not in dispute that Mr Nissan has not performed interpreting/translating services at the Broadmeadows service centre since the request for a replacement translator/interpreter in December 2019.

[17] However, during the proceedings Mr Nissan accepted that following the complaint in December 2019, he continued to perform interpreting/translating services pursuant to his employment contract at various client sites, as directed by the respondent. Specifically, Mr Nissan completed 12 jobs in January 2020, 18 jobs in February 2020, six jobs in each of March and April 2020, 11 jobs in May 2020, 17 jobs in June 2020 and eight jobs in July 2020.

[18] Further, the respondent says that it continues to offer Mr Nissan available onsite and telephone interpreting work where there is a requirement for interpreting/translating services in the Arabic, Assyrian and Chaldean languages.

[19] Having regard to the above matters, I find that Mr Nissan has not been dismissed in accordance with s.386(1) of the Act.

Consideration

[20] Section 587(1) of the Act provides that:

“Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[21] A finding that an application has no reasonable prospects of success within the meaning of s.587(1)(c) should only be reached with extreme caution and in circumstances where an application is, for instance, manifestly untenable, groundless, or so lacking in merit or substance as to be not reasonably arguable. 2

[22] As Mr Nissan is not “a person who has been dismissed” he is not eligible to make an unfair dismissal application under s.394 of the Act. I am therefore satisfied that Mr Nissan’s application for an unfair dismissal remedy is manifestly untenable and has no reasonable prospects of success. 3

Disposition

[23] Mr Nissan’s application for an unfair dismissal remedy is dismissed pursuant to s.587(1)(c) of the Act.

DEPUTY PRESIDENT

Appearances:

A Nissan, Applicant

B Adams, on behalf of the Respondent

Hearing details:

2020
Melbourne (by telephone):
August 3.

Printed by authority of the Commonwealth Government Printer

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 1   Djula v Centurion Transport Company Pty Ltd[2015] FWCFB 2371

 2   Spencer v The Commonwealth of Australia (2010) 241 CLR 181, cited in J. Willis v Capital Radiology Pty Ltd T/A Capital Radiology and Ors[2016] FWC 716 at [6]-[9]

 3   Wright v Australian Customs Services PR926115 (AIRCFB, Giudice J, Williams SDP, Foggo C, 23 December 2002) at [23]