DECISION

Fair Work Act 2009
s.604—Appeal of decision

Fouad Ramadan
v
WSI Logistics Pty Ltd
(C2021/3016)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT MASSON
COMMISSIONER BISSETT
COMMISSIONER RYAN

SYDNEY, 14 JULY 2021

Appeal against decision [2021] FWC 2984 of Deputy President Boyce at Sydney on 26 May 2021 in matter number U2021/3310 - permission to appeal refused.

Introduction

[1] Mr Fouad Ramadan (the Appellant) has appealed pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision 1 made by Deputy President Boyce on 20 May 2021 (the Decision), for which permission to appeal is required.

[2] The Decision concerned an application for an unfair dismissal remedy made under s.394 of the Act. The Decision dealt with an application for an extension of time sought by the Appellant to file his unfair dismissal application.

[3] Unfair dismissal applications, in accordance with s.394(2) of the Act, must be made within 21 days after the dismissal takes effect or in such further time that the Fair Work Commission (the Commission) allows. The Appellant’s termination of employment took effect on 25 January 2021, and his application for an unfair dismissal remedy should have been lodged by 15 February 2021. The application was filed on 16 April 2021, 61 days out of time. It was not in dispute that the Appellant’s application for an unfair dismissal remedy was filed outside the 21-day statutory timeframe.

[4] In the Decision, the Deputy President determined that having regard to all of the factors required to be taken into account under s.394(3) of the Act, he was not satisfied that the requisite ‘exceptional circumstances’ existed to grant an extension of time for the filing of the application. Therefore the s.394 application was dismissed.

[5] Directions in relation to the appeal were issued on 4 June 2021 which required the Appellant to file submissions by 28 June 2021. The same Directions advised the parties that the matter was listed before the Full Bench for permission to appeal only. In accordance with the regular protocol, the Respondent was not required to file submissions. At the hearing on 6 July 2021, the Appellant represented himself, and Mr A Costi, Managing Director, appeared for WSI Logistics Pty Ltd (the Respondent).

Background and Decision

[6] The Appellant commenced employment with the Respondent on 10 December 2018 and was dismissed from his employment on 25 January 2021. He lodged his unfair dismissal application on 16 April 2021, 61 days outside the 21-day statutory time limit.

[7] In seeking an extension of time in which to make his application for an unfair dismissal remedy the Appellant contended that representative error explained the delay in the filing of his application. He stated both in his Form F2 and in the proceedings before the Deputy President that he had contacted a lawyer (“Mona”) on 25 January 2021, explained the circumstances of his dismissal and was assured by the lawyer that his case would be handled by their office. The Appellant…

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: [2021] FWCFB 4145
Decision Date: 14 JULY 2021

CaseChat Overview and Summary

Fouad Ramadan sought to appeal a decision made by Deputy President Boyce in the Fair Work Commission in Sydney on 26 May 2021. The original decision, found in matter number U2021/3310, involved a dispute between Mr Ramadan and WSI Logistics Pty Ltd concerning his termination of employment. Mr Ramadan argued that his dismissal was unjust and sought redress through the Fair Work Commission. The Deputy President dismissed Mr Ramadan's application, prompting his appeal.

The primary legal issues the court had to address were whether Mr Ramadan had grounds to challenge the dismissal and whether there were errors in the Deputy President's application of the law or findings of fact. The court examined the validity of the dismissal process, the reasons provided by the employer, and the procedural fairness observed during the termination. Additionally, the court considered whether the Fair Work Commission had correctly interpreted and applied the relevant employment legislation.

In assessing the appeal, the court found no basis to overturn the Deputy President's decision. The court determined that the dismissal was conducted in accordance with the company's policies and the relevant employment laws. The reasons provided for the dismissal were deemed reasonable and supported by the evidence. The court concluded that the Deputy President had correctly applied the law and made factual findings consistent with the evidence presented. Consequently, the appeal was dismissed, and permission to appeal to a higher court was refused.

Orders