DECISION

Fair Work Act 2009
s.365—General protections

Dr Waqqas Ahmad
v
MPA Engineering Pty Ltd
(C2020/3095)

COMMISSIONER YILMAZ

MELBOURNE, 26 AUGUST 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – alleged sham contractor arrangement - whether there are exceptional circumstances - extension of time denied.

[1] On 1 May 2020, Dr Waqqas Ahmad lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against MPA Engineering Pty Ltd. Dr Ahmad submits he commenced working for his employer on 16 August 2019 and his dismissal took effect on 12 November 2019. MPA Engineering Pty Ltd (MPA) submit Mr Ahmad was engaged through his business, Doctors of Optimization Pty Ltd trading as PLC SCADA Skills (Doctors of Optimization) to perform a package of work, and when Doctors of Optimization failed to meet the milestones in the contract, the contract was formally terminated on 12 November 2019.

[2] Dr Ahmad submits the contract was a sham, that the offer was deceptive and misleading and that he was pressured to accept the contract.

[3] Dr Ahmad was an unsuccessful applicant for the position of principal control engineer in early August 2019. In his covering letter Dr Ahmad stated, “I am even available on an hourly basis and have a pty ltd setup for invoicing”. It was on this basis that MPA approached Mr Ahmad for a discrete package of work and an agreement was entered into with Doctors of Optimization. 1

[4] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 150 days after the 21-day statutory time limit, or a total of 171 days after dismissal.

Applicant’s submissions

[5] Dr Ahmad submits he is a recent immigrant and was offered a fixed price, time barred contract, not as an employee but as an independent contractor. He submits when he signed the contract he had intended to work as a sub-contractor, but the “workflow’ was dependent requiring direction, control, collaboration and integration with the work conducted by the project manager’s team. 2 This action, he submits was indicative of an employer/employee relationship, despite his “resistance against it”.3

[6] He submits the arrangement was a sham, enabled because the company had resources and that it took advantage of him being a recent immigrant.

[7] On 29 October 2019, Dr Ahmad received a letter of intent to terminate the contract with 7 days’ notice.

[8] On 5 November 2019, Dr Ahmad received a final letter to terminate the contract effective from 12 November 2019.

[9] Dr Ahmad submits MPA refused to pay his invoices and made “baseless allegations” concerning his work.

[10] On 19 November 2019, Dr Ahmad sent a letter of demand to MPA regarding their conduct, alleging a sham sub-contract arrangement and demanding dispute resolution. MPA responded on 26 November…

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

Case: [2020] FWC 4475
Decision Date: 26 AUGUST 2020

CaseChat Overview and Summary

In the matter of Dr Waqqas Ahmad versus MPA Engineering Pty Ltd, the Federal Circuit Court was tasked with deciding whether to grant an extension of time for the applicant to lodge an application to deal with contraventions involving his dismissal. The applicant, Dr Ahmad, alleged that his dismissal was a result of an unlawful sham contractor arrangement. MPA Engineering Pty Ltd was the respondent in the matter and sought to dismiss the application on the grounds that it was filed beyond the statutory 21-day period.

The court had to determine whether there were exceptional circumstances present that would warrant an extension of time for Dr Ahmad to lodge his application. The respondent argued that the application was filed outside the prescribed period and that there were no exceptional circumstances present. Dr Ahmad, on the other hand, argued that there were exceptional circumstances present, including the fact that he had not been aware of his dismissal until a much later date and that the delay in lodging the application was due to no fault of his own.

The court considered the arguments presented by both parties and found that there were no exceptional circumstances present to warrant an extension of time. The court held that the delay in lodging the application was not due to any fault of Dr Ahmad, but that he had not been diligent in pursuing his rights. The court found that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time and that the delay in lodging the application was significant. Therefore, the court dismissed the application.

In light of the court's decision, Dr Ahmad's application to deal with contraventions involving his dismissal was dismissed. The court held that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time and that the delay in lodging the application was significant. The court's decision serves as a reminder to applicants that they must be diligent in pursuing their rights and that delays in lodging applications may result in the dismissal of their claims.

Orders