Farooq Faridi v Om Security Pty Ltd
[2025] FWC 572
•25 FEBRUARY 2025
| [2025] FWC 572 [Note: An appeal pursuant to s.604 (C2025/1854) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Farooq Faridi
v
Om Security Pty Ltd
(U2024/15489)
| COMMISSIONER MCKINNON | SYDNEY, 25 FEBRUARY 2025 |
Application for an unfair dismissal remedy – application filed out of time – whether additional time allowed
Mr Faridi worked as a Security Guard at the Qatari Embassy from 14 June 2020 until 31 October 2024. From 17 July 2022, he worked under the nomenclature of Mantr Group Security (Mantr Group), which is the trading name of Om Security Pty Ltd. There is a dispute about whether he was engaged as a contractor or as an employee, and by which entity. The disputes are not necessary to resolve for present purposes. I proceed on the assumption, without deciding, that Mr Faridi has been “dismissed” for the purposes of the Act.[1]
On 22 December 2024, Mr Faridi applied to the Commission for an unfair dismissal remedy from Mantr Group. Under s.394 of the Fair Work Act 2009 (the Act), an application for an unfair dismissal remedy must usually be made within 21 days after the dismissal took effect. Mr Faridi’s application was required to be filed by 21 November 2024 and his application was 31 days late.
The question is whether to allow additional time for Mr Faridi to make the application to the Commission. For the reasons that follow, no additional time can be allowed.
Extension of time
If an application for unfair dismissal remedy is not made within 21 days after the dismissal took effect, additional time may be allowed for the filing of the application under s.394(2) of the Act but only if the Commission is satisfied that there are exceptional circumstances and that an extension of time is appropriate.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[2]:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
In reaching the state of satisfaction as to whether there are exceptional circumstances for the purpose of extending the time to apply for an unfair dismissal remedy, it is necessary to consider each of the matters listed in s.394(3) of the Act. These are:
a)the reason for the delay,
b)whether the person first became aware of the dismissal after it had taken effect,
c)any action taken by the person to dispute the dismissal,
d)prejudice to the employer (including prejudice caused by the delay),
e)the merits of the application, and
f)fairness as between the person and other persons in a similar position.
Consideration
Reason for delay: The reason given by Mr Faridi for the late filing of his application is that he was not given notice of termination in writing and was not aware of the 21-day filing period. In the meantime, he was waiting for a response from Mantr Group and was mentally upset after the loss of his job.
The dismissal occurred during a phone call on 31 October 2024 from Mr Pawan Mishra, Chief Operational Officer of Mantr Group. Mr Mishra told him that there had been a complaint about his misconduct with a customer of the client, and that he would have to move him on from the roster. He was told that his shift that day would be his last. Mr Faridi asked about his rostered shift the coming Sunday. He was told he need not come in and that he would be paid for the day. Mr Faridi said, in words to the effect: “if you have taken the decision based on false allegations, what can I do?” He asked for information about the complaint to be put in writing. After the phone call, Mr Mishra removed Mr Faridi from the WhatsApp group chat where work rosters were published. Mr Faridi has not worked in the business since 31 October 2024.
The following week, Mr Faridi spoke to people he knew at the Embassy. They told him to speak to Mr Mishra and to ask him for information in writing. Mr Faridi also spoke to a supervisor, Mr Harinder Singh, about what had happened. Mr Singh said he would come back to Mr Faridi.
On 4 November 2024, Mr Faridi sent a message to Mr Mishra asking for proof in writing of any complaint against him by the security team so that he could “clarify about the wrong baseless allegations”. Mr Mishra did not respond.
Mr Faridi spoke again to the Embassy staff who said they would speak to Mr Mishra for him. Mr Mishra was contacted by Mr Leonardo Daquino (Manager) and Mrs Fatima (Administration Officer), who asked him to send information about the complaints made in relation to Mr Faridi. Mr Mishra says he did this but did not hear again from officers of the Embassy about Mr Faridi.
On 19 December 2024, Mr Faridi visited the office of the Fair Work Ombudsman in Canberra and spoke to them about what had happened. They suggested he contact the Fair Work Commission. Mr Faridi called the Commission and applied for an unfair dismissal remedy three days later.
Whether the person first became aware of the dismissal after it had taken effect: Mr Faridi was told on 31 October 2024 that he was being moved on from the roster, and that his shift that day would be his last. He lost his access to the WhatsApp roster group shortly after that time and has not worked since. I find that Mr Faridi knew of his dismissal on the day that the dismissal took effect. This is so even though the dismissal was not confirmed in writing.
Any action taken by the person to dispute the dismissal: Mr Faridi emailed Mr Mishra on 4 November 2024 asking for information about the complaints made against him. The email put Mr Mishra on notice that the alleged complaints were in dispute. Mr Faridi also spoke to those he knew at the Embassy, and his supervisor Mr Singh, that same week. It can be inferred from these communications that Mr Faridi was asking them to help with restoring his job. Although some effort was made by officers of the Embassy, nothing came of it, and Mr Faridi did not achieve the outcome he was seeking. He then waited until 19 December 2024 to make further inquiries of the Fair Work Ombudsman before applying to the Commission on 22 December 2024.
Prejudice to the employer (including prejudice caused by the delay): There is no significant prejudice to Mantr Group if the application is allowed to proceed. This is not a case apparently lacking merit on its face (for the reasons below). The delay is neither very short nor very long. There is no indication that relevant witnesses would not be available if the matter was to proceed to conciliation, and if necessary, arbitration.
Merits of the application: On the papers and having heard briefly from the parties, Mr Faridi has a reasonable case that he was unfairly dismissed. He would however need to overcome the jurisdictional objections raised by Mantr Group about his relationship to Mantr Group including whether he was a contractor or employee capable of being “dismissed”. It appears that procedural fairness was absent in relation to the alleged dismissal. There is insufficient material to inform any view about whether the alleged dismissal was for a valid reason. The personal consequences of the dismissal on Mr Faridi, a 65‑year old migrant and now citizen of Australia, who enjoyed his job and had worked for the Embassy for more than 4 years, would likely weigh in his favour. The failure to provide written notice of termination, or to pay wages in lieu of notice, might be material if it can be established that Mr Faridi was entitled to notice in connection with the dismissal.
Fairness as between the person and other persons in a similar position does not appear to have a relevant bearing on the case.
Conclusion
On balance, I do not find exceptional circumstances in connection with the late filing of the application. There is merit in the case if Mr Faridi can overcome the jurisdictional hurdles and establish that there was no valid reason for dismissal. There is no significant prejudice to Mantr Group if the application proceeds. But none of the reasons given or circumstances explained by Mr Faridi for the late filing of his application are out of the ordinary or uncommon, either when considered individually or in combination. Mr Faridi did not take reasonable steps to protect his position by making enquiries about the options available to him following his dismissal. He took initial steps of this kind in the week after dismissal, and then no further steps for about 6 weeks before finally deciding to act.
In the absence of exceptional circumstances, additional time cannot be allowed to Mr Faridi to make his claim. The application was not made in accordance with the Act and must be dismissed.
Order
The application is dismissed.
COMMISSIONER
Hearing details
Sydney:
February 24.
F Faridi on his own behalf.
P Mishra for the respondent.
[1] Fair Work Act 2009 (Cth), s.386.
[2] [2011] 203 IR 1 at [13].
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