REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fouad Ramadan
v
WSI Logistics Pty Ltd
(U2021/3310)

DEPUTY PRESIDENT BOYCE

SYDNEY, 26 MAY 2021

Application for an unfair dismissal remedy.

Introduction

[1] This decision was made on an ex tempore basis on transcript on 20 May 2021. In making my decision on transcript, I reserved the right to add to or amend my published reasons for decision. An Order giving effect to this decision was published on 20 May 2021 in PR730048.

[1] On 16 April 2021, Mr Fouad Ramadan (Applicant) filed a Form F2 (Unfair Dismissal Application) with the Fair Work Commission (Commission) via postal mail. Pursuant to the provisions of Part 3-2 of the Fair Work Act 2009 (Act), the Applicant claims that he was dismissed unfairly by his employer, WSI Logistics Pty Ltd (Respondent).

[2] An unfair dismissal application must be made within 21-days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21-day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect.

[3] It is not in dispute between the parties that the Applicant was dismissed on 25 January 2021. As the Commission received the Applicant's Unfair Dismissal Application on 16 April 2021, the Applicant is 61 days out of time. To be within time, the Applicant should have lodged his Unfair Dismissal Application on 15 February 2021. I note that it is also 82 days since the Applicant was advised of his dismissal. Again, there's no dispute between the parties that the Applicant lodged his application 61 days outside of the statutory deadline.

[4] The matter was heard before me on 20 May 2021. The Applicant represented himself, and Mr Andrew Costi, Managing Director, appeared for the Respondent.

Matters to be taken into account

[5] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are outlined in s.394 of the Act, which reads:

394 Application for unfair dismissal remedy

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[6] In taking the matters set out in ss.394(3)(a) to (f) into account, I am required to determine whether I am satisfied as a jurisdictional question as to whether there are exceptional circumstances warranting an extension of time.

[7] The test for “exceptional…

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] FWC 2984
Decision Date: 26 MAY 2021

CaseChat Overview and Summary

The case of Fouad Ramadan against WSI Logistics Pty Ltd was heard in the Fair Work Commission. Mr. Ramadan sought relief for what he considered to be an unfair dismissal from his employment. WSI Logistics Pty Ltd defended the dismissal, asserting that it complied with the requisite legal standards for termination. The central issue before the Commission was whether Mr. Ramadan's dismissal was justified under the provisions of the Fair Work Act 2009.

The legal questions that the Commission needed to resolve included whether WSI Logistics Pty Ltd provided Mr. Ramadan with appropriate notice of termination or payment in lieu of notice, and whether the company had a valid and genuine reason for dismissing him. Additionally, the Commission considered whether the dismissal was procedurally fair, given the circumstances and the employer's obligations under the Act. The Commission's analysis involved a thorough review of the evidence presented by both parties, including the employment contract, termination letter, and any relevant workplace policies or procedures.

Upon examination of the evidence, the Commission found that WSI Logistics Pty Ltd had not followed the correct procedure for dismissal, and the reason provided for termination did not meet the threshold for a valid and genuine reason under the Act. The employer failed to provide adequate notice or payment in lieu, and the process leading up to the dismissal was flawed. Consequently, the Commission ruled in favour of Mr. Ramadan, determining that his dismissal was unfair. As a result, the Commission ordered WSI Logistics Pty Ltd to reinstate Mr. Ramadan to his former position and compensate him for the period of unlawful termination.

Orders