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…

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 1829
Decision Date: 31 MARCH 2016

CaseChat Overview and Summary

The Federal Court heard an application from Ibrahim Chidiac against Manpower, seeking relief from an unfair dismissal. Mr Chidiac contended that his dismissal was unjust and that he was not given adequate opportunity to respond to the allegations against him. The court was tasked with determining whether Mr Chidiac's application for relief from unfair dismissal should be considered, given that it was filed beyond the statutory time limit. The primary issue before the court was whether the extension of time application should be granted, considering the delay in filing and the reasons provided by Mr Chidiac for this delay.

In examining the application, the court considered the principles governing extensions of time in unfair dismissal cases. It evaluated whether Mr Chidiac had a bona fide belief that he had grounds for the application and whether he acted as expeditiously as could be reasonably expected in the circumstances. The court also weighed the potential prejudice to Manpower if the extension were granted. The Federal Court found that Mr Chidiac's delay was significant and that he had not provided sufficient justification for the late filing. Furthermore, the court determined that granting the extension would cause substantial prejudice to Manpower by delaying the resolution of the proceedings.

Based on the above, the court dismissed Mr Chidiac's application for an extension of time. The court concluded that the delay was unreasonable and that the prejudice to Manpower outweighed any merits in Mr Chidiac's case. Consequently, the application for relief from unfair dismissal was not considered on its merits, and the proceedings were concluded without further action on that front. The court's decision underscores the importance of adhering to statutory time limits in legal proceedings and the potential consequences of failing to do so.

Orders