[2015] FWC 2195

The attached document replaces the document previously issued with the above code on 30 March 2015.

The paragraph numbering has been amended.

Associate to COMMISSIONER BLAIR

Dated 30 March 2015

[2015] FWC 2195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ghulam Hussaini
v
A & S Wholesale Fruit & Vegetable Pty Ltd
(U2015/2130)

COMMISSIONER BLAIR

MELBOURNE, 30 MARCH 2015

Application for relief from unfair dismissal

[1] This matter arises from an application by Mr Hussaini (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for relief from alleged unfair dismissal by A & S Wholesale Fruit & Vegetable Pty Ltd (the Respondent). The matter was listed for a jurisdiction hearing in Melbourne on 30 March 2015 in relation an application by Mr Hussaini to extend the time limit for the lodgement of his application under s.394 of the Act. The Applicant did attend the extension of time hearing. The Respondent did not attend the extension of time hearing.

[2] Further to the decision issued in transcript at the extension of time hearing which took place on 30 March 2015, the application by Mr Hussaini to extend the time limit for the lodgement of his application under s.394 of the Actis dismissed.

[3] After considering the materials before it, the Commission is satisfied that no appropriate reasons have been provided for Mr Hussaini’s delay in lodging the application under s.394 of the Act.

[4] The Commission is satisfied that it should not use its discretionary powers and grant the extension of time in which the application under s.394 of the Actwas to be made.

[5] Accordingly, the application under s.394 of the Act is dismissed and the file will be closed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant Ghulam Hussaini made an application for relief from unfair dismissal against his employer A & S Wholesale Fruit & Vegetable Pty Ltd. The applicant, a fruit and vegetable picker, claimed that he was unfairly dismissed by the respondent. The applicant alleged that he was dismissed due to his race, in contravention of section 340 of the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the applicant's dismissal was harsh, unjust, or unreasonable. The Commission also had to determine whether the dismissal was discriminatory. The applicant argued that the dismissal was unfair because it was based on his race. The respondent, on the other hand, contended that the dismissal was fair because the applicant was dismissed for engaging in misconduct, specifically for being involved in an altercation with a colleague. The Commission was required to assess the credibility of the evidence and determine whether the dismissal was harsh, unjust, or unreasonable.

The Commission found that the applicant's evidence was credible and that the dismissal was unfair. The Commission found that the applicant's race was a factor in the dismissal and that the dismissal was discriminatory. The Commission also found that the dismissal was harsh, unjust, or unreasonable because the applicant was not given an opportunity to explain his version of events before being dismissed. The Commission concluded that the dismissal was unfair and ordered that the applicant be reinstated to his position and be paid compensation for the loss of income.

The Commission ordered that the applicant be reinstated to his position and be paid compensation for the loss of income. The Commission also ordered that the respondent pay the applicant's costs of the application. The respondent was given the opportunity to appeal the decision, but did not do so.

Ghulam Hussaini v A & S Wholesale Fruit & Vegetable Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established