Ibrahim Chidiac v Manpower

[2016] FWC 1829

[2016] FWC 1829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ibrahim Chidiac
v
Manpower
(U2016/4333)

COMMISSIONER BISSETT MELBOURNE, 31 MARCH 2016

Application for relief from unfair dismissal - Extension of time application - application dismissed.

[1] Mr Ibrahim Chidiac has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal. Mr Chidiac says that he was dismissed from his employment with Manpower.

[2] On 3 March 2016 I issued a decision 1 (the first decision) in which I found that Mr Chidiac was not employed by Queensland Property Investments Pty Ltd T/A Woolworths (Woolworths) but that he was, in fact, an employee of Manpower. At the time I heard argument that led to that decision I also heard further arguments for Mr Chidiac that, if he was found to be employed by Manpower, he should be granted an extension of time within which to make his application for unfair dismissal from Manpower.

[3] In the first decision, and in accordance with what the parties had agreed to in the hearing leading up to that decision, I issued directions that required Manpower to file with the Commission and serve on Mr Chidiac submissions in reply to the submissions made for Mr Chidiac on the extension of time question by 10 March 2016. Mr Chidiac was required to file and serve any material in reply by 15 March 2016. Manpower complied with this direction. Mr Chidiac did not file any material in reply.

[4] There remains an outstanding issue as to whether Mr Chidiac’s employment has been terminated by Manpower. Manpower says it has not terminated Mr Chidiac’s employment while he says it has done so. For the purposes of this decision I have accepted that, if Mr Chidiac’s employment was terminated by Manpower, the date of the termination was
23 December 2015 (which is the date he includes in his application). Whether or not his employment was terminated is further considered below in considering the merits of his application.

[5] Mr Chidiac made his application for relief from his unfair dismissal by Manpower on
5 February 2016.

[6] Section 394 of the Act requires that an application for unfair dismissal must be made ‘within 21 days after the dismissal took effect’ 2 unless the Commission grants an extension of time within which the application may be made. Mr Chidiac made his application 44 days after the dismissal took effect, some 23 days after the date by which the application was required to be made under the Act.

[7] Mr Ibrahim was granted permission to represent Mr Chidiac in accordance with s.596 of the Act. Ms Macalister from Manpower represented Manpower.

Legislative provisions

[8] Section 394(3) of the Act gives power to the Commission to extend time within which an application is made:

(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

(c) any action taken by the person to dispute the dismissal; and

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

(e) the merits of the application; and

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

[9] In Nulty v Blue Star Group the Full Bench of Fair Work Australia considered the meaning of ‘exceptional circumstances’ and found:

In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional…The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[10] The decision in Nulty and the requirements of the Act make it clear that what must be ‘exceptional’ are the circumstances related to the out of time application taking into account all of the matters in s.394(3). It is not the case that the reason or delay must be exceptional or that the merits of the application must be exceptional but that all of the circumstances, considered together, should be exceptional such that the extension of time should be granted.

[11] In addition the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 3 found that, in considering the reason for the delay in making an application for unfair dismissal (s.394(2)(a)), it is necessary that the totality of the delay be explained.

Submissions

[12] Mr Ibrahim, for Mr Chidiac, said that Mr Chidiac’s application for unfair dismissal filed against Manpower was made one day after Mr Chidiac sought legal advice. His advisor understood on the basis of the objections made by Woolworths to the application of unfair dismissal made against it, that his employer might be Manpower.

[13] Mr Chidiac said that ‘his systematic employment with Manpower has been terminated, and therefore, constructively or directly, it’s been terminated.’ 4

[14] Mr Chidiac said that he had always understood that he was employed by Woolworths. When his assignment with Woolworths was terminated he contacted Manpower to find out, and explain to him, why he was not getting any more hours from Woolworths. He sought this information on 28 December 2015 and followed the request up with a further email to Manpower on 1 January 2016. 5

[15] On 1 January 2016 Ms Marshall of Manpower responded to Mr Chidiac and indicated to him that, while she had received no detail from Woolworths, he had been advised by Woolworths that he was no longer required by it. She also said that he was still an active candidate with Manpower and Manpower would continue to look for a job for him. For this purpose Ms Marshall sought an updated resume. Ms Marshall advised Mr Chidiac that she would send his resume to Manpower’s other branches or that ‘Alternatively, if you would like a separation certificate please let me know.’ 6

[16] In Mr Chidiac’s response to Ms Marshall he again raised that there had been no warning given to him by Woolworths that he was no longer required by it.

[17] Mr Chidiac said that these emails are evidence that it was not clear who his employer was. 7

[18] Mr Chidiac said that he always thought he was working for Woolworths but, being aware of the arrangement between Woolworths and Manpower, he brought the matter of no longer being offered work by Woolworths to the attention of Manpower.

[19] Mr Chidiac said that Manpower had failed to meet its obligations under the National Union of Workers – Queensland Property Investments Pty Ltd Melbourne Regional Distribution Centre Enterprise Agreement 2013 (the 2013 Agreement). He said that if Manpower had conducted disciplinary proceedings as required under the 2013 Agreement he may have known that his assignment with Woolworths was to be ended and as this did not occur he ‘was not able to grasp that he was actually being terminated from his job at the time that he was.’ 8

[20] Mr Chidiac submitted that Manpower would not be prejudiced by the delay in making the application.

[21] Manpower submitted that Mr Chidiac had not, in fact, been dismissed by it and that since his assignment with Woolworths came to an end he has been on sick leave with a medical certificate.

[22] Manpower said that Mr Chidiac’s employment was not covered by an enterprise agreement and not by the 2013 Agreement.

[23] Manpower also submitted that, during the hearing of the jurisdictional matters associated with identification of the employer and the extension of time, Mr Ahmadzai, who represented Woolworths, indicated that on 28 January 2016 Mr Ibrahim contacted him 9. Mr Chidiac was therefore aware at that point in time that Woolworths did not consider him to be its employee.

[24] Manpower said that Mr Chidiac was aware that he was a Manpower employee. He was aware that he secured his role at Woolworths through Manpower 10 and acknowledged that he was paid by Manpower.11

[25] Relying on various authorities Manpower submitted that there are no unusual or extraordinary circumstances that justify the delay in Mr Chidiac making his application. Manpower submitted that Mr Chidiac’s failure to make his application against the correct employer does not explain the further delay from when he was aware that Woolworths said it was not his employer (on 28 January 2016) until he made the application on 5 February 2016.

[26] Manpower said that Mr Chidiac was aware on 24 December 2015 that he was no longer required by Woolworths.

[27] Manpower said that it is prejudiced by the delay in the making of the application. It said that, due to the nature of the work and that witnesses to the incident at the client site may no longer work there anymore will prejudice Manpower in being able to defend the application.

[28] Manpower submitted that there is no merit in the application by Mr Chidiac. It said that on 16 December 2015 a complaint was made about comments made by Mr Chidiac. This was investigated internally by Woolworths.

[29] On 24 December 2015 Mr Chidiac saw Ms Marshall from Manpower when he was leaving the site and told her that he had been injured at work on 16 December 2015 and needed to see a doctor. Ms Marshall asked Mr Chidiac to call her when he had an update on his condition. He subsequently provided a medical certificate to Manpower.

[30] Manpower said that Mr Chidiac remains a candidate on Manpower’s system and Manpower remains willing to provide on-hire casual work to him. This cannot occur until he is fit to resume work.

[31] On this basis Manpower said Mr Chidiac does not have a strong case with respect to merit.

[32] Manpower submitted that Mr Chidiac has been treated no differently to other candidates of Manpower who work on an on-hire basis at Woolworths. It is not in a position to insist that Woolworths offer shifts to Manpower candidates it considers have engaged in misconduct.

Consideration

(a) reason for the delay

[33] Mr Chidiac says his employment was terminated on 23 December 2015. 12

[34] On 28 December 2015 he emailed Manpower and asked why he was not getting any hours from Woolworths. He sought this information quickly as he only had ‘twenty one days to apply for unfair dismissal’.

[35] Mr Chidiac said on transcript, when asked about his contract of employment, that it was with Manpower and that he was paid by Manpower. He also indicated that it was not Manpower’s fault that he was in the position he was in 13 (although he appears to have raised this in the context of ‘control’).

[36] Mr Chidiac provided Manpower with a medical certificate that indicated he was not fit for work.

[37] Whilst Mr Chidiac’s lawyer, Mr Ibrahim, said that the application against Manpower was made on 5 February 2016, the day after Mr Chidiac contacted his firm, 14 he has not sought to dispute Mr Ahmadzai’s submission that he had contact with Mr Ibrahim on 28 January 2016 when Woolworths filed its Form F3, which included its jurisdictional objection that it was not the employer of Mr Chidiac.15 The two statements are in conflict and cannot both be right.

[38] Even if Mr Chidiac’s employment was terminated by Manpower (and this is not a matter that has yet been determined) the only reason for the delay in making the application appears to be that Mr Chidiac believed his employment was terminated by Woolworths and not Manpower. Eight days after learning that he was not employed by Woolworths (even though he was aware that he was employed by Manpower) he then decided to make an application against Manpower.

[39] Even if I accept that until 28 January 2016 Mr Chidiac was not aware that Manpower was his employer and not Woolworths, he has not provided any reason for the delay in making his application against Manpower between 28 January 2016 and 5 February 2016 except that I might infer that he did not seek out legal advice until sometime closer to 5 February 2016.

[40] However, all of Mr Chidiac’s actions indicate he was aware that Manpower was his employer – his evidence of contacting Manpower when his assignment at Woolworths ended and his provision of the medical certificate to Manpower are strongly suggestive that he was aware his employer was Manpower and not Woolworths.

[41] Mr Chidiac has not provided a reason for the totality of the delay by him in making his application against Manpower. His actions suggest he was aware that his employer was Manpower. The evidence suggests that he was aware, at least on 28 January 2016 that Woolworths was not his employer but it still took him until 5 February 2016 to make his application.

[42] It is difficult to accept, given the statements made by Mr Chidiac, that he was not aware who his employer was. Even if there was some doubt there is no explanation for the delay between 28 January 2016 and 5 February 2016 in making his application against Manpower. This does not weigh in his favour.

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

[43] In all of his submissions and materials Mr Chidiac indicates that his employment was terminated on 23 December 2015 and he became aware of it at this time. This matter has been neutral in my consideration.

(c) any action taken by the person to dispute the dismissal

[44] Mr Chidiac sought to dispute his dismissal by making an application for unfair dismissal against Woolworths. On becoming aware of jurisdictional objections to this application on 28 January 2016 – on the grounds that he was not employed by Woolworths – Mr Chidiac then made an application against Manpower.

[45] This matter has been neutral in my consideration.

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

[46] Manpower claims some prejudice caused by the delay because of the potentially unavailability of those who may have been involved in the dispute. Mr Chidiac claims there is no prejudice to Manpower but does not elaborate beyond a general statement. His decision to not provide any response to the submissions of Manpower leaves me in the position of giving some weight to the submission of Manpower on this matter.

(e) the merits of the application

[47] In circumstances where it is not apparent, even on his own materials, that Mr Chidiac’s employment has been terminated by Manpower it is difficult to see the merit in his case.

[48] Mr Chidiac has presented a medical certificate to Manpower indicating that he is not fit for work. In such circumstances it is reasonable that Manpower have not placed or sought to place him in alternative employment.

[49] That Manpower may not have complied with a provision in the 2013 Agreement when it is not covered by it does not add weight to Mr Chidiac’s claim.

[50] I find little merit in Mr Chidiac’s claim for unfair dismissal. This factor weighs against Mr Chidiac’s application for an extension of time within which to make his application.

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

[51] Manpower claim that Mr Chidiac has been treated as any other of its candidates would be in the same circumstances. Mr Chidiac makes no submission on the matter.

Conclusion

[52] Exceptional circumstances are ones that ‘out of the ordinary course or unusual or special.’

[53] This is not so in Mr Chidiac’s case. The use of labour hire to do the work that was being performed by Mr Chidiac is not unusual. It is an accepted means by which employers manage peaks and troughs in their workloads. That Mr Chidiac had been at Woolworths for almost three years is unfortunate but not unheard of. The 2013 Agreement (which does not cover Manpower) has elements designed to minimise such occurrences but Manpower cannot be held to account for Woolworths’ action or inaction in this regard. Manpower provides labour to Woolworths as it requires and dictates.

[54] It is also not unusual that Woolworths, having found Mr Chidiac was no longer a suitable person to have at its site, advised Manpower that he was no longer required. That the manner of advice was not as might be expected (that is, to Mr Chidiac by Manpower) while unfortunate, does not support Mr Chidiac’s claim for unfair dismissal.

[55] On the basis of all of the material before me in respect to the extension of time it is apparent that Mr Chidiac’s complaint is still against Woolworths. In his submission with respect to the extension of time question Mr Chidiac said that:

The circumstances of [his] dismissal are harsh, unjust or unreasonable. He has been ushered out from his 3 years of employment on false grounds; without a proper investigation or process being followed; without his due entitlements and conditions of employment being adhered to or upheld and he has not been able to secure further employment. (sic)

[56] Mr Chidiac was ‘ushered’ out of the work he did for Woolworths. His employment with Manpower has not been terminated and he has not been ‘ushered’ out of employment by it.

[57] Even if I did grant the application for an extension of time for making the application for unfair dismissal against Manpower this would not resolve the grievance Mr Chidiac has with Woolworths.

[58] In these circumstances and given the apparent lack of merit in Mr Chidiac’s claim and the lack of a cogent reason for the totality of the delay in making his application I am not satisfied that there are exceptional circumstances such that an extension of time is warranted.

[59] Mr Chidiac’s application for unfair dismissal against Manpower is therefore made outside the statutory time limit specified in the Act. His application is dismissed. An Order to this effect will be issued with this decision.

COMMISSIONER

Final written submissions:

Respondent, 10 March 2016

 1   [2016] FWC 1395.

 2 Section 394(2)(a) of the Fair Work Act 2009.

 3 (2010) 197 IR 403, 408‒409.

 4   Transcript PN340.

 5   Submissions of Mr Chidiac in U2016/4333, 17 February 2016, paragraph 4.

 6   Submissions of Mr Chidiac in U2016/4333, 17 February 2016, paragraph 4.

 7   Transcript PN312.

 8   Transcript PN336.

 9   Transcript PN373-5.

 10   Transcript PN128.

 11   Transcript PN130.

 12   Whilst Manpower says Mr Chidiac’s assignment with Woolworths ended on 24 December 2015, Mr Chidiac says it was 23 December 2015. The day’s difference makes no material difference to the matters I need to consider.

 13   Transcript PN136.

 14   Mr Ibrahim also said that the application against Manpower was made two days after Mr Chidiac sought legal advice – see Transcript PN26.

 15   Transcript PN373-5.

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