DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ibrahim Abdallah
v
ISS Facility Services Australia Limited
(U2015/15137)

COMMISSIONER GREGORY

MELBOURNE, 7 JANUARY 2016

Application for extension of time.

[1] Mr Ibrahim Abdallah commenced employment with ISS Facility Services Australia Limited (“ISS”) in May 2008 and worked as a Security Guard until his employment ended on 26 October 2015 when he was terminated with immediate effect. The events leading up to and including his termination are in dispute between the parties.

[2] Mr Abdallah initially sought legal advice on 12 October 2015 from a firm of Solicitors, Defteros Lawyers (“Defteros”), about an incident at his workplace. He subsequently instructed the firm to lodge an unfair dismissal application on his behalf. He provided these instructions on the day he was dismissed, being 26 October 2015.

[3] However, the application was not received by the Commission until 17 November 2015, one day after the 21 days provided by the Fair Work Act 2009 (Cth) (the Act) in which to make application. Mr Abdallah now claims the delay was caused by the actions of his legal representative, and seeks an extension of time in which to make application. This decision deals with that application. The application is opposed by ISS.

[4] The matter was initially set down for hearing on 14 December and directions issued for filing and service of evidence and submissions, however, the parties subsequently advised the Commission they were agreeable to the matter being determined “on the papers”. Defteros provided a written submission dated 19 November 2015. The submissions provided on behalf of ISS were lodged on 11 December by its National General Manager, Industrial Relations, Mr Jed Moore.

The Issue to be Determined

[5] Section 394(3) of the Act provides that the Commission may extend the time for filing an unfair dismissal application if it believes there are “exceptional circumstances” that warrant an exercise of this discretion, taking into account the following considerations:

“(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.” 1

[6] Therefore, are there “exceptional circumstances” existing in all the circumstances of this matter to warrant the Commission exercising its discretion to grant Mr Abdallah additional time in which to make application?

Evidence and submissions

[7] The submissions provided on behalf of Mr Abdallah indicate he first approached the firm of Defteros Lawyers on 12 October 2015 following an incident at his workplace. He was then required to attend further meetings with his employer as part of the investigations carried out into the incident. A lawyer from Defteros subsequently attended meetings on 13 October and 15 October involving ISS and Mr Abdallah, as his…

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: [2016] FWC 113
Decision Date: 7 JANUARY 2016

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Ibrahim Abdallah versus ISS Facility Services Australia Limited was heard. The applicant, Mr. Abdallah, sought an extension of time to lodge a defence in response to proceedings initiated by the respondent, ISS Facility Services Australia Limited, regarding a dispute arising from a termination of employment. The Federal Circuit Court was tasked with determining whether Mr. Abdallah's request for an extension of time was justified under the circumstances presented.

The court examined the legal principles governing the extension of time in the context of civil litigation, considering factors such as the length of the delay, the reason for the delay, and any prejudice to the opposing party. It was necessary to assess the merits of Mr. Abdallah's explanation for the delay, which included his claim of being misled by the respondent regarding the terms of his employment contract. The court also considered whether the delay would result in an unfair prejudice to the respondent.

After reviewing the evidence and arguments presented by both parties, the court concluded that Mr. Abdallah's request for an extension of time should be granted. The court found that the delay was not unreasonable given the circumstances, and that there was no substantial prejudice to the respondent. Consequently, the court ruled in favour of the applicant, allowing the defence to be lodged within the extended timeframe. This decision provided Mr. Abdallah an opportunity to fully respond to the allegations made by ISS Facility Services Australia Limited.

Orders