Iffat Khan v Perth College of Business & Technology Pty Ltd

[2015] FWC 1235

[2015] FWC 1235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Iffat Khan
v
Perth College of Business & Technology Pty Ltd
(U2014/15140)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Ms Iffat Khan alleged that the termination of her employment by Perth College of Business & Technology Pty Ltd (the College) was unfair.

[2] Ms Khan in her application advised that the dismissal took effect on 24 October 2014. In its response, the College alleged that Ms Khan’s dismissal took effect on 10 October 2014.

[3] This matter was listed for hearing to determine the date of Ms Khan’s dismissal and if necessary to consider whether Ms Khan should be granted an extension of time to lodge her application. If she had been dismissed on 10 October 2014 her application was not lodged within 21 days of the dismissal taking effect. For the matter to proceed, an extension of time would need to be granted.

[4] Prior to the hearing on 16 January 2015, Mr Ishtiaq Ahmed on behalf of the College requested an adjournment. Mr Ahmed was asked to provide reasons and any supporting documents about why he would not be able to attend.

[5] Mr Ahmed did not respond prior to the hearing and the hearing was held in his absence. At 5.36 pm on 16 January 2015, Mr Ahmed sent a flight itinerary to my chambers advising that he would be out of Perth from 10-19 January 2015 and he forwarded a further email on 19 January 2015. Had Mr Ahmed provided this information prior to the hearing, arrangements could have been made for him to participate from Sydney or by telephone.

[6] Ms Khan gave evidence that she received a letter terminating her employment on 7 October 2014. It was her evidence that Mr Ahmed called her on the 7 October 2014 saying that he had changed his mind and her employment was not terminated. As a result, Ms Khan continued to be present for work. On 9 October 2014, the police attended the workplace in relation to an intervention order. In that application, Mr Ahmed alleged that despite being her employment being terminated Ms Khan refused to acknowledge the termination and continued to attend work and caused disruption.

[7] On 23 October 2014, a letter was sent by Mr Ahmed to Ms Khan in which it is stated that:

“as per your termination letter dated 06-10-2014, your two weeks’ notice period is over by today 23-10-2014. Your outstanding salary will be paid as per the following schedule:

2 weeks notice period: 23-10-2014
4 weeks accrued annual leave: will be paid in two fortnights.”

[8] Ms Khan gave evidence that she received this letter on 23 October 2014.

[9] On 21 October 2014, Sahar Rasool, the Accounts Officer wrote a letter advising that on that date Ms Kan was the Campus Manager.

[10] Based on the material filed by Ms Khan and her oral evidence, her employment was terminated on 23 October 2014. As such, her application was required to be filed by 13 November 2014. As the application was not filed within 21 days, the application cannot proceed unless Ms Khan is given an extension of time.

[11] The Fair Work Commission (the Commission) has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances, the Commission must have regard to the following criteria:

(a) the reason for the delay;

[12] Ms Khan explained that she did not lodge her application on time because she was awaiting the transcript of the hearing before the Magistrate’s Court. However, there is nothing in that transcript that is relevant to the unfair dismissal application and Ms Khan did not provide any other explanation for the reason she did not file her application within the 21 days provided in the Act. The lack of a reasonable explanation weighs against the granting of an extension of time.

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

[13] It is clear that Ms Khan was aware of the dismissal when it took effect and had the full 21 days to lodge her application. This weighs against the granting of an extension of time.

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

[14] There was no evidence of any other action taken by Ms Khan to dispute her dismissal after 23 October 2014.

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

[15] There was no evidence of any prejudice to the employer and this weighs in favour of granting of an extension of time.

(e) the merits of the application;

[16] I am not able to make any assessment of the merits as there are factual disputes between the parties as evidenced in the material filed by the parties. This material has not been tested. However based on the material filed in this matter, Ms Khan had an arguable case that she was unfairly dismissed. This weighs in favour of the granting of an extension of time.

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

[17] There were no submissions in relation to this criterion.

Conclusion

[18] Accepting that her employment was not terminated until 23 October 2014, Ms Khan did not lodge her application within the time period provided. Ms Khan’s application was one day late. Ms Khan has not provided a satisfactory explanation for the delay in lodging her application. I am unable to conclude that the strength of Ms Khan’s case outweighs the other criteria. I find therefore that there are no exceptional circumstances warranting an extension of time and Ms Khan’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

I. Khan on her own behalf.

No appearance by the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link:

16 January.

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