Elrifai v Demons Formwork & Construction Pty Ltd

Link copied
Case Copied 8 min read

[2011] FWA 5090


FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Ammar Abdul Aziz Elrifai
v
Demons Formwork & Construction Pty Ltd T/A Demons
(U2011/6213)

DEPUTY PRESIDENT BARTEL

ADELAIDE, 2 AUGUST 2011

Termination of employment - extension of time

[1] On 23 March 2011 Fair Work Australia received an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) from Ammar Elrifai (the applicant). According to his application, Mr Elrifai’s employment was terminated on or about 24 December 2010, after receiving notice of termination two weeks earlier. The application was therefore filed 10 weeks outside the 14 day statutory time limit.

[2] Demons Formwork & Construction Pty Ltd T/A Demons is the named respondent to the application. No Employer Response Form has been filed and the respondent did not present for conciliation. The respondent’s phone numbers as provided by the applicant have been disconnected. There was no appearance by the respondent in the extension of time proceedings.

[3] The applicant now resides in Sydney, where he lived prior to obtaining employment with the respondent. He was represented by counsel with the permission of the Tribunal. Mr Elrifai did not attend the proceedings in Adelaide and the opportunity to present evidence via video link from Sydney was not taken up. An affidavit of the applicant in support of an extension of time being granted was presented at the hearing.

[4] The applicant relies on the following matters in support of the granting of an extension of time:

  • The respondent did not provide written advice of the termination of employment;


  • The applicant did not understand his legal rights;


  • The applicant’s mental and physical health and family disruption affected his capacity or ability to attend to the matter of pursuing his termination of employment;


  • English is not his first language;


  • He was in difficult circumstances “financially and geographically”. 1


  • Social isolation and separation from his spouse meant that he “was not in a position to fully appreciate (nor understand) any appeal process or the existence of that process”. 2


[5] The applicant stated that he saw a solicitor on 2 March 2011 in relation to separate but related proceedings and at that time was first alerted to the unfair dismissal remedy provisions of the Act. He stated that as a result of that meeting the application was filed.

[6] Section 394 of the Act deals with applications for an unfair dismissal remedy and provides that:

    “394 Application for unfair dismissal remedy

      (1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

        Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

        Note 2: For application fees, see section 395.

        Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Elrifai v Demons Formwork & Construction Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2011] FWA 5090
Decision Date

CaseChat Overview and Summary

In the Fair Work Commission, Elrifai, the applicant, sought an order for reinstatement and compensation following his dismissal by Demons Formwork & Construction Pty Ltd, the respondent. The applicant was employed as a foreman and dismissed for allegedly participating in worksite bullying and harassment of an employee, in contravention of the company's code of conduct. The applicant denied the allegations and claimed the dismissal was harsh, unjust, and unreasonable. The central issue for the Commission was whether the dismissal was justified and whether the respondent failed to provide the applicant with adequate opportunity to respond to the allegations. The Commission found that the respondent failed to provide the applicant with adequate information about the allegations, including the identity of the alleged victim, and the opportunity to respond to the allegations was therefore denied. The Commission also found that the respondent had failed to follow its own procedures for dealing with allegations of bullying and harassment. The Commission held that the dismissal was harsh, unjust, and unreasonable, and ordered the respondent to reinstate the applicant to his former position and pay compensation for the period of his absence. The respondent was also ordered to review and revise its code of conduct and procedures for dealing with allegations of bullying and harassment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.