Hussein Azmi Subhi Alnabulsi v Victorian Institute of Technology Pty Ltd
[2024] FWC 2320
•5 SEPTEMBER 2024
| [2024] FWC 2320 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Hussein Azmi Subhi Alnabulsi
v
Victorian Institute Of Technology Pty Ltd
(C2024/4888)
| DEPUTY PRESIDENT BELL | MELBOURNE, 5 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal – application made 1 day late – whether exceptional circumstances – no exceptional circumstances – application dismissed.
On 16 July 2024, Dr Hussein Azmi Subhi Alnabulsi applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (the Application).
The respondent, Victorian Institute of Technology Pty Ltd, raised a jurisdictional objection to the Application on the ground that that it was made outside the 21-day time limit set out in s 366(1) of the Act.
Section 366(1) requires an application under s 365 to be made within 21 days after the dismissal took effect. The Commission must therefore determine in the first instance whether a further time for lodgement of the application is required and, if so, whether it should be granted.
Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 366(2) of the Act. Section 366(2) states:
“(2) 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) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
e) fairness as between the person and other persons in a similar position.”
In order for the Commission to allow this further period of time, it must be satisfied that there were ‘exceptional circumstances’ which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group (2011) 203 IR 1 at [13]).
Upon the matter being allocated to me, I issued directions for the filing of evidence and submissions. I resolved to conduct the matter by way of a determinative conference.
Dr Alnabulsi filed a witness statement with supporting documents, in addition to his ‘Form F8’ application. The Respondent filed statements for two witnesses, as well as a statement of submission. The applicant was initially represented legally but by the time of the hearing before me, he represented himself. The respondent was represented by Velocity Legal, with permission having been granted. Each witness was cross-examined.
When did the dismissal take effect?
The dismissal was effected by a letter of dismissal, sent to Dr Alnabulsi’s email address on 24 June 2024. The dismissal letter was clearly expressed to take effect that day.
Dr Alnabulsi’s Form F8 application states, in response to question 1.3, that the date the dismissal took effect was 24 June 2024. The employer’s case was that the dismissal was a redundancy. The employer had, in the week before, foreshadowed in writing a dismissal due to redundancy. Those earlier email also stated that, in the event of that employee’s position was made redundant, an email would be sent at 5pm, 24 June 2024 advising of that outcome. The employer’s email advising of that outcome was sent at 5.12pm on 24 June 2024. There does not appear to be any dispute, and I am satisfied, that Dr Alnabulsi was notified of his dismissal and he was dismissed from his employment, effective on 24 June 2024.
Section 366(2)(a) - Reason for the delay
For the general protections application to have been made within 21 days after the dismissal took effect, it needed to have been made by 11.59pm on 15 July 2024. The delay is the period commencing immediately after that time until the date the application was lodged on 16 July 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[1]
As the application was lodged at about 4.55pm on 16 July 2024, the application was lodged a day late.
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[2]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[3]
Dr Alnabulsi’s witness statement identifies two reasons for the delay in making his application:
· Health reasons, which are identified as anxiety and depression; and
· Steps the applicant was taking after his dismissal to potentially secure a casual employment role with the respondent.
In Dr Alnabulsi’s witness statement, the first of these reasons is explained as:
“7. I was delayed in applying for legal advice due to anxiety and depression that I have after I lost my full time job because I bought a house recently and paying 3551 dollars for mortgage as it shows in the medical report’s image below: [an extract is below]”
The medical report referred to was a short letter, dated 28 July 2024, from a general practitioner at the Coburg Family Medical Centre. The operative part of the letter stated:
“This is to advise that Mr Hussein Alnabulsi attended to me due to anxiety and depression started since [sic, ‘he’] lost his job in 25th June 2024 . He said he was not able to think and make decision properly after that.
He has to pay for his new house that he bought five months ago which is difficult now due to lack of job. He does not have good sleep and feels down constantely [sic] he said.
I would appreciate it if you concider [sic] his condition .”
Dr Alnabulsi also states that he was given a prescription for some medicine on 27 July 2024. A copy of the prescription was tendered.
As to the second reason, Dr Alnabulsi’s witness statement described it as follows:
“8. There is another reason about why I being delayed which is the executive dean at VIT Mr Sid Nair offered me a casual job before and after the termination but then he sent me an email on Sunday July 14, 2024 while the last day to apply to dispute our termination was 15 July, 2024, so I did apply through Mrs Emilia on 16 July, 2024, as it shows in the images below: “
Both parties filed evidence concerning the casual contract offer. It is not in dispute that, on 27 June 2024, Dr Alnabulsi made a request to be allocated work to help him out financially. By 3 July 2024, that request had been approved in the form of a casual teaching role.
However, by 10 July 2024, Professor Sid Nair (who gave evidence for the respondent) was alerted to what he considered was a concerning event regarding the deletion, by the applicant, of teaching material from the respondent’s Learning Management System.
On 10 July 2024, Prof. Nair wrote to Dr Albabulsi in the following terms:
“The IT department has advised me that the materials for the unit ICT705 and ITNE3013R were deleted from the LMS site. As you are aware the ownership of all work done under employment is that of the Employer. The logs show that you have accessed the site and deleted individual files.
VIT will be [sic] provide you the opportunity to return all these files. You will be given 24 hours from the time this email [sic] return all the deleted files. Return all files to me.
Failure to return these files within the timeline would lead to further actions. VIT reserves the right to progress these [sic] further as required.”
Prof. Nair considered the deletion of these files to be extremely serious. There is some ambiguity as to what happened next, although it is clear that Dr Alnabulsi wrote to Prof. Nair stated that he did not have “access” to upload them and indicated that the files were also in the possession of another staff member whom had been previously sent the files. Dr Alnabulsi also attempted to meet with Prof. Nair, although no meeting ensued.
Prof. Nair evidently did not consider the explanations or the responses sufficient and, on 14 July 2024, sent an email to Dr Alnabulsi stating “Management has referred this to the legal team” and that the respondent would now “discontinue all or any further services with you.”
Dr Alnabulsi’s material also refers to a range of other allegations against the respondent, which primarily appear directed at impugning the respondent’s reasons or motive, both for the dismissal and generally. I did not understand them as being advanced as any reason for the delay by Dr Alnabulsi in making his general protections allegation, although I return to them below.
While I accept that the personal circumstances of the applicant indicated a difficult period following his dismissal and dealing with the shock and consequences to him of that event, I am not satisfied that the evidence of the impact of the dismissal upon him rose to such a level as to adequately explain the delay in commencing the application.
While the medical evidence placed before me was far from comprehensive, I am satisfied that the applicant has, at least at some times since his dismissal, been suffering from anxiety and possibly depression. With that said, the medical evidence does not satisfy me that depression was an actual diagnosis. The letter from the general practitioner seemed to be largely based on what the applicant had disclosed to his doctor on 27 July 2024, rather than observations over a period of time longer than one day.
What is not clear to me, however, is whether those matters explain the delay before the applicant filed his application with the Commission. While I am prepared to accept that the applicant’s condition and medications (such as I understand them based on the material before me) has made it more challenging to commence a general protections claim, I do not accept that it explains the delay or any part of it. I note that no evidence from any medical practitioner was led to that effect.
In addition, there is other material before me relied upon by Dr Alnabulsi that demonstrates the action he took to further his employment with the same employer. I consider those matters support my conclusion that the delay was not adequately explained by Dr Alnabulsi’s mental health challenges.
I also do not consider that the second reason advanced by Dr Alnabulsi provides a satisfactory reason for the delay. First, I do not consider that the circumstances of attempting to secure alternative work following a dismissal is itself a satisfactory reason for delay in commencing a challenge of that dismissal. In a practical sense, a successful attempt to secure alternative work might make it less likely for a challenge to follow, simply because the aggrieved party can move on or does not consider a legal challenge in relation to the old role sufficiently worth it. Similarly, that attitude might change if the attempts to secure new work suddenly fail (as was the case here). Finally, in Dr Alnabulsi’s case, he was told on 10 July 2024 how seriously the respondent took the issue of material being deleted from the Learning Management System. Although attempts to allay those concerns were offered he was still on notice and, when told on 14 July 2024 that the casual contract was being cancelled, he still had a clear day to make his general protections claim.
Finally, there is a third potential ground that I have considered which is referred to in Dr Alnabulsi’s first ground. Dr Alnabulsi states “I was delayed in applying for legal advice due” to his medical conditions. As with my observations above, I do not consider that the medical evidence supports that proposition. So far as lack of legal advice is advanced as a further ground, that is a commonly occurring difficulty faced by many applicants before the Commission. I do not consider it is a factor that adequately explains the reasons for delay or any part of it.
While the delay in the present case is not lengthy – one day – I am not satisfied that any of the reasons, taken individually or in combination, for the applicant’s delay in commencing his claim point to circumstances that would support a finding of exceptional circumstances. Of the factors I must consider in s 366(2), I consider the factor in s 366(2)(a) tends against the application for an extension of time.
Section 366(2)(b) - action taken by the Applicant to dispute the dismissal
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[4]
Other than the commencement of his general protections claim, there was no evidence of the applicant taking steps to challenge his dismissal. I do not consider the circumstances required by s 366(2)(b) are matters pointing to a finding of exceptional circumstances.
Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)
In all the circumstances, I do not find that any material prejudice would be suffered by the employer if an extension of time were granted. I consider this factor is neutral between the parties.
Section 366(2)(d) - the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.
It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[5].
With that having been noted, Dr Alnabulsi’s substantive claim (which is primarily articulated in his Form F8 and parts of his supporting evidence) appears to require significant work for it to clearly conform with, or at least articulate, a cogent general protections claim.
The employer states it dismissed Dr Alnabulsi for redundancy. The documentary material before me supports that position. Consistent with that position, a number of other persons were also made redundant. Dr Alnabulsi’s statement in reply identifies a number of financial motives – i.e. cost savings - for the respondent’s decision. Unfortunately for Dr Alnabulsi, that material supplies a further reason in support of the redundancy.
Dr Alnabulsi makes a number of serious allegations regarding other motives of the respondent and, specifically, that his employment was terminated on the basis of his religion (and, along with other employees he says also had the same religion and whose employment was terminated). Those allegations do not rise beyond a basic level of assertion, and also appear (even if they were accepted) unconnected with any identified decision-maker for the redundancy itself. They were not put to either of the respondent’s witnesses, one of whom was the Executive Dean and the other an Assistant HR Manager who assisted with the restructure process. Dr Alnabulsi’s allegations are also undercut by the fact that the respondent was quite willing to engage Dr Alnabulsi as a casual (albeit those circumstances changed upon the respondent’s assessment of the matters described above). There is some force to the respondent’s submission that the reason Dr Alnabulsi commenced his application was because of the subsequent termination of the casual engagement, not due to the earlier termination of employment on 24 June 2024.
There are a number of elements of Dr Alnabulsi’s application that I consider will present some challenges to the overall merits of his application, which would tend against a finding of ‘exceptional circumstances’. However, noting that the applicant is now unrepresented and at the early stage of his claim, they are not matters I place great weight upon and I will treat this factor as only pointing slightly against a finding of exceptional circumstances.
Section 366(2)(e) - fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may 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 can be considered exceptional.[7]
For the case before me, I have already set out above my observations in respect of the specific factors that I must take into account. When having regard to all of the matters listed at s 366(2) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute, whether taken individually or in combination. There are no additional matters that I am aware of that would otherwise point to a conclusion of “exceptional circumstances”.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Dr Alnabulsi’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[8] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
H. Alnabulsi representing himself
K. Stewart on behalf of the Respondent
Hearing details:
2024
Melbourne
2 September
[1] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] PR779014.
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