Aula Alhamdani v Saini Spa Pty Ltd t/a Day Spa at the Lakes and Mukesh Saini
[2025] FWC 671
•7 MARCH 2025
| [2025] FWC 671 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Aula Alhamdani
v
Saini Spa Pty Ltd t/a Day Spa at The Lakes and Mukesh Saini
(C2024/7302)
| COMMISSIONER ALLISON | MELBOURNE, 7 MARCH 2025 |
Application to deal with contraventions involving dismissal – application out of time – no exceptional circumstances warranting extension of time
This is an edited version of my decision delivered ex tempore and recorded in transcript on 6 March 2025.
This decision relates to an application by Ms Aula Alhamdani for the Fair Work Commission to deal with a dismissal dispute under s.365 of the Fair Work Act 2009 (Cth) (the FW Act). Ms Alhamdani alleges she was unlawfully dismissed from her employment with Saini Spa Pty Ltd (the 1st Respondent) by the owner, Mukesh Saini (the 2nd Respondent) in contravention of Part 3-1 of the FW Act.
Ms Alhamdani commenced employment with Saini Spa Pty Ltd on 7 February 2024. Ms Alhamdani was engaged as a beauty therapist. Ms Alhamdani alleges that during her time at Saini Spa Pty Ltd she was not paid at the correct classification rate or paid overtime rates. Ms Alhamdani alleges after she raised concerns regarding her pay she was bullied and harassed by Ms Saini and treated differently because of her race.
Ms Saini strongly denies these allegations.
On 27 August 2024 Ms Alhamdani tendered her resignation, with two weeks’ notice. Ms Alhamdani’s employment ended on 7 September 2024.
Ms Alhamdani filed a general protections application on 10 October 2024.
Ms Alhamdani’s application faces two significant threshold challenges before it can proceed. If the requirements of either challenge are not met, then the application will be dismissed.
Firstly, Ms Alhamdani’s application is out of time. An application for a general protection dispute involving dismissal must be made “within 21 days after the dismissal took effect.”[1] If an application is not made in this time frame, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,[2] and the Commission chooses to exercise its discretion under s.366(2) of the Act to extend the period for the application.
In addition, Saini Spa has raised a jurisdictional objection to Ms Alhamdani application – namely that Ms Alhamdani resigned, and there was no dismissal.
This decision considers the first threshold challenge – whether exceptional circumstances exist that warrant the Commission exercising its discretion under s.366(2) to extend the period for Ms Alhamdani’s general protections application.
It is uncontested that Ms Alhamdani’s employment ended on 7 September 2024. For Ms Alhamdani’s unfair dismissal application to have been made within the appropriate time (i.e. 21 days after the dismissal took effect), it needed to have been made by midnight on 30 September 2024 (noting that 28 and 29 September 2024 fell on the weekend). Ms Alhamdani’s application is 10 days late.
For Ms Alhamdani’s application to now proceed, she must obtain an extension of time in which to make the application. Section 366(2) of the Fair Work Act 2009 (Cth) provides that the Commission may exercise discretion to allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
the reason for the delay;
any action taken by the person to dispute the dismissal;
prejudice to the employer (including prejudice caused by the delay);
the merits of the application; and
fairness as between the person and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
The meaning of the term ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[4] It is accepted that 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, can be considered exceptional.[5]
What was the reason/s for the delay?
Ms Alhamdani’s Submissions
Ms Alhamdani’s reasons for the delay can be summarised into two categories:
Firstly, Ms Alhamdani argues that the delay in her application was caused by confusing or contradictory legal advice, which left her uncertain whether to pursue this application or a Court application in the Small Claims division. She sets out her attempts at obtaining legal advice as follows.[6]
On 18 September 2024, having felt considerable distress due to unresolved issues between her and the company, Ms Alhamdani contacted the Fair Work Ombudsman to seek guidance on her situation. Ms Alhamdani testified that a representative of the Ombudsman suggested she complete a small claims form or alternatively fill out a Form F9 – Application to deal with an unlawful termination dispute, with the Commission.
On 19 September 2024, Ms Alhamdani contacted JobWatch. JobWatch provided her with information addressing several legal options that were available to her, including a general protections claim involving dismissal, a small claims action, and a workplace bullying application. JobWatch provided this information in the form of fact sheets attached to an email. Ms Alhamdani reviewed the fact sheets, but remained uncertain of which action(s) she should take. At this time, Ms Alhamdani became aware that a general protections application involving dismissal must be made within 21 days of termination.
On 1 October 2024, Ms Alhamdani contacted the Law Institute of Victoria to seek a referral to a lawyer to obtain further legal advice. Ms Alhamdani was referred to Costanzo Lawyers and established first contact with Costanzo Lawyers on 3 October 2024.
On 10 October 2024, Ms Alhamdani attended a consultation with Costanzo Lawyers. She was advised that she should make a general protections claim. Ms Alhamdani completed the application and submitted it on the same day.
Secondly, Ms Alhamdani’s argues that she suffered from a range of health issues and mental health concerns including stress arising from her interactions with Ms Mukesh and the ending of her employment. Ms Alhamdani did not present any medical documentation to support this claim.
Consideration – Reasons for Delay
The delay is the period commencing immediately after the end of the 21-day period to file the application, although circumstances arising prior to the delay may be relevant to the reason for the delay.[7]
Reason 1 – Confusing and Contradictory Legal Advice
It is well established that being unaware or unfamiliar with the general protections dismissal jurisdiction and the statutory time limit is not considered an exceptional circumstance on its own.[8] Employees who have been dismissed are often not immediately aware of what application types may be available to them. In this regard I commend Ms Alhamdani for exploring avenues to seek legal advice at an early stage.
However, I disagree with Ms Alhamdani’s characterisation of the advice provided to her as confusing or conflicting. Both the Fair Work Ombudsman and JobWatch provided Ms Alhamdani with general information and options that may, or may not, have been relevant to her individual circumstances. She did not engage either organisation as her legal representative at any point in her enquiries.
Ultimately, their suggestions to pursue the Respondent via the Small Claims division, make a workplace bullying application, or make a dismissal-related application to the Commission, were valid suggestions and each of these was open to Ms Alhamdani to choose. At all times, the decision of which application, or applications, to make was left to Ms Alhamdani’s own judgement of her own circumstances and what the appropriate course she should take might be.
Ms Alhamdani confirmed that she became aware of the 21-day time limit for this application after approaching JobWatch and reviewing the fact sheets provided to her. If she had made an application at that stage, it would have been in time. She did not.
Ultimately, Ms Alhamdani freely chose to delay the application until after she had received further legal advice from her referral to Costanzo Lawyers, even though she knew the application would be late by that time. I find that this was a considered and conscious choice by Ms Alhamdani to not make a general protections application within the appropriate timeframe. In this context I do not believe the delay in filing is satisfactorily justified.
Reason Two – Health and Mental Health Concerns
In some circumstances, severe impacts on mental health or health concerns arising from a dismissal can be a valid reason contributing to the delay in filing a general protections application. However, there was no medical evidence before me that any stress, shock or anxiety induced, or other health condition, contributed to the delay in Ms Alhamdani’s application.
On the contrary, as I have accepted Ms Alhamdani’s evidence regarding her efforts to seek legal advice, it is clear to me that Ms Alhamdani was actively preparing to make legal claims against the Respondent in the 21-day period. I also note that after her consultation with Costanzo Lawyers, Ms Alhamdani completed and filed her application on the same day. This does not evince any debilitating state of shock or distress, or any other health condition, which would impede an application.
I do not consider that either of the reasons provided by Ms Alhamdani adequately justifies the delay. Accordingly, the reasons for delay weigh against a finding of exceptional circumstances.
Did Ms Alhamdani take any action to dispute the dismissal?
As set out in paragraph [16] above, Ms Alhamdani took steps to dispute her alleged dismissal by seeking legal advice from the Fair Work Ombudsman on 18 September 2024; from JobWatch on 19 September 2024, from Law Institute of Victoria on 1 October 2024, and from Costanzo Lawyers on 10 October 2024.
However, Ms Alhamdani did not expressly notify the Respondent that she intended to pursue a claim against it in relation to the alleged dismissal.
I find this matter weighs marginally in favour of a finding of exceptional circumstances, as Ms Alhamdani did take some steps to dispute the dismissal.
Will Saini Spa suffer any prejudice because of the delay?
Ms Saini has indicated that interactions with Ms Alhamdani following dismissal and throughout the process of having this matter heard at the Fair Work Commission has caused her distress during her pregnancy and as a new mother, including stress-related health concerns. I accept that the Respondent, as a small business, may encounter some difficulties in relation to responding to a general protections claim, particularly when the owner of the Respondent was in late stages of pregnancy and early motherhood.
However, if Ms Alhamdani’s application had been filed in time and proceeded in the ordinary course, the Respondent would have encounter the same inherent challenges.
I do not find any prejudice arising because of the delay in this regard. This factor weighs neither for nor against a finding of exceptional circumstances.
What are the merits of Ms Alhamdani’s general protections application?
Ms Alhamdani argues that she has been adversely treated up to and including being forced to resign because she raised issues relating to the Respondent’s failure to pay overtime and being incorrectly classified.
Ms Alhamdani claims she was not paid for overtime worked in excess of 38 hours per week, or 76 hours a fortnight. In addition, Ms Alhamdani claims she should have been classified as a Level 6 Beauty Therapist rather than a Level 2 Beauty Therapist.
Ms Alhamdani claims that after she raised issues relating to underpayments with Ms Saini, Ms Saini’s attitude towards her changed. Ms Alhamdani claims that Ms Saini stopped speaking with her and micromanaged her.
In addition, Ms Alhamdani claims that she was adversely treated because of her race, and claims that another employee was reclassified, while she was not.
In relation to the issue of whether Ms Alhamdani voluntarily resigned or was forced to resign, Ms Alhamdani refers to her claim that Ms Saini’s attitude towards her changed after she raised underpayment issues and ultimately, she felt compelled to resign because it was clear to her that she was “not wanted”.
The Respondent disputes Ms Alhamdani’s claims regarding unpaid overtime and being incorrectly classified. The Respondent claims Ms Alhamdani was being paid as a Beauty Therapy Graduate (first 12 months) and was therefore being paid over the applicable Award rate. Ms Saini further claims that Ms Alhamdani did not work over 76 hours per fortnight so there was no need to pay overtime.
Ms Saini disputes that she treated Ms Alhamdani differently after she raised issues relating to underpayments. However, Ms Saini concedes that as she was expecting a baby, she found Ms Alhamdani’s inquiries, particularly on text, stressful, and ultimately, she blocked her text messages and required her to contact her via email.
Ms Saini denies she treated Ms Alhamdani differently on the basis of race. Ms Saini claims that while another employee was reclassified – this was based on that particular employee’s experience and occurred after Ms Alhamdani had left.
Finally, Ms Saini claims Ms Alhamdani voluntarily resigned. She points to the fact Ms Alhamdani provided 2 weeks’ notice.
There is a clear dispute between the parties relating to overtime payments and classifications. I make no findings in relation to these matters, noting that this was an extension of time hearing and no substantial evidence was put in relation to these matters. In any event, underpayment claims are matters for another jurisdiction.
There is also clear disputed evidence relating to whether Ms Alhamdani was treated adversely following her raising concerns regarding overtime payments and/or on the basis of race. Again, is would not be appropriate for me to resolve a contested issue of fact going to the ultimate merits for the purposes of an extension of time hearing. [9]
However, based on the material before me, it appears highly likely that Ms Alhamdani voluntarily resigned. A resignation will only be considered forced if an “employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.”[10] In the matter before me, I understand and sympathise with Ms Alhamdani that she was unhappy working for the Respondent, and did not feel her underpayment claims were being treated seriously. However, she did have other options available to her, such as contacting the Fair Work Ombudsman or lodging a dispute in the Fair Work Commission. I do not believe she had no other choice other than to resign.
Accordingly, I am of the view that the merits weighs against a finding of exceptional circumstances.
Fairness as between Ms Alhamdani and other persons in a similar position?
Neither party brought to my attention any specific example of another employee who was dismissed in similar circumstances and had sought to bring an unfair dismissal application. No other relevant matters concerning this consideration were raised and I am unaware of any relevant matter. This matter weighs neither for nor against a finding of exceptional circumstances.
Conclusion – Taking the above matters into account, are there exceptional circumstances justifying an extension of time?
I will now take into account all the matters under s.366(2) to determine if I am satisfied there are exceptional circumstances. For the reasons given above, I have found that Ms Alhamdani’s reasons for delay weigh against a finding of exceptional circumstances. I have found that action taken to dispute the dismissal weighs marginally for a finding of exceptional circumstances. I find that the merits weigh against a finding of exceptional circumstances. All other factors are neutral. The test for exceptional circumstances is a high bar and when I consider all the factors under s.366(2), individually, in combination or as a whole, I am not satisfied that exceptional circumstances exist.
I do note that Ms Alhamdani may have an application in another jurisdiction relating to underpayments, which she may choose to pursue. I encourage the parties to have further discussions to see whether they can resolve any outstanding matter between them.
However, not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Ms Alhamdani’s application is therefore dismissed.
COMMISSIONER
Appearances:
A Alhamdani, the Applicant
M Saini, the Respondent
Hearing details:
2025
6 March
Melbourne
[1] Fair Work Act 2009 (Cth) s.366(1)(a) (‘the Act’).
[2] With reference to matters set out in s.366(2) of the Act.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, 5 [13].
[5] Ibid, 5 [13]; Stogiannidis [38].
[6] Exhibit Alhamdani-2, DHB 43.
[7] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]
[10] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [47]
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