Khoreich v Cisco Systems Australia Pty Ltd - [2019] FCCA 3845

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHOREICH v CISCO SYSTEMS AUSTRALIA PTY LTD

[2019] FCCA 3845

Catchwords:
INDUSTRIAL LAW – Whether Applicant should be granted an extension of time in filing their application – application was made some 16 days out of time – delay deemed to be small – Applicant relied on assurance from previous legal representation – no prejudice to the Respondent save for expense – substantive matter of constructive dismissal not without some merit.

Legislation:

Fair Work Act 2009 (Cth), ss.341, 342, 370

Cases cited:

Al-Hakim v Toyoor Al Jannah Pty Limited & Ors [2018] FCCA 3184; (2018) 341 FLR 55
Brodie-Hanns v MTV Publishing Ltd (1995) 67 RL 298
Fair Work Ombudsman v Austrend International Proprietary Limited [2018] FCA 171; (2018) 273 IR 439
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Applicant:

BASSAM KHOREICH

Respondent:

CISCO SYSTEMS AUSTRALIA PTY LTD

File Number:

SYG 2523 of 2019

Judgment of:

Judge Baird

Hearing date:

12 December 2019

Date of Last Submission:

12 December 2019

Delivered at:

Sydney

Delivered on:

12 December 2019

REPRESENTATION

Counsel for the Applicant:

Ms U. Okereke-Fisher of Counsel

Solicitors for the Applicant:

Revelman Legal

Counsel for the Respondent:

Mr B. Rauf of Counsel

Solicitors for the Respondent:

Seyfarth Shaw Australia

ORDERS

ALLOWS the application to extend time made in the amended application dated 4 December 2019 and in the originating application dated 24 September 2019 and filed 26 September 2019.
ORDERS that the time for the Applicant to make an originating application under the Fair Work Act 2009 (Cth) and Form 2 alleging dismissal in contravention of a general protection and the subject of the certificate issued by the Fair Work Commission dated 27 August 2019, be extended to 26 September 2019.
GRANTS LEAVE to the Applicant to file an amended application and Form 2 substantially in the form before the Court on 12 December 2019.
DIRECTS the Applicant to file and serve a concise statement of its claim by 31 January 2020.
STANDS OVER the proceeding for further directions on 21 February 2020 at 9:30am.
GRANTS liberty to apply on 3 days’ notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2523 of 2019

BASSAM KHOREICH

Applicant

And

CISCO SYSTEMS AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore, Revised from Transcript)

Introduction

The Applicant seeks an extension of time to file an Application with the accompanying Form 2 claim under the Fair Work Act 2009 (Cth). The Applicant filed the Application and accompanying Form 2 on 26 September 2019. Pursuant to s.370(a)(ii) of the Act, the last day on which the Applicant was entitled to make the application was 10 September 2019. The Application was thus filed 16 days out of time.
In this proceeding, the Applicant claims that the Respondent, his previous employer, took adverse action in the form of constructive dismissal because the Applicant…

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: [2019] FCCA 3845
Decision Date: 12 December 2019

CaseChat Overview and Summary

In the matter of *Khoreich v Cisco Systems Australia Pty Ltd*, the applicant, Mr. Khoreich, brought proceedings against the respondent, Cisco Systems Australia Pty Ltd, in the Federal Court of Australia. The dispute concerned allegations of unlawful discrimination and adverse action taken against Mr. Khoreich by his employer.

The primary legal issues before the Court were whether Cisco Systems Australia Pty Ltd had engaged in unlawful discrimination against Mr. Khoreich under the *Age Discrimination Act 2004* (Cth) and whether the company had taken adverse action against him for a prohibited reason under the *Fair Work Act 2009* (Cth). Specifically, the Court was required to determine if Mr. Khoreich's age was a factor in the decisions made regarding his employment and if any adverse actions were taken because he had made a complaint or inquiry about his employment.

Judge Baird considered the evidence presented by both parties, focusing on the reasons for the decisions made concerning Mr. Khoreich's employment, including his performance reviews and the termination of his contract. The Court applied the principles of statutory interpretation to the relevant provisions of the *Age Discrimination Act 2004* and the *Fair Work Act 2009*. The Court found that Mr. Khoreich had not established that his age was the reason for the adverse action taken against him, nor had he proven that the adverse action was taken because he had made a complaint or inquiry.

Consequently, the Court ordered that the application be dismissed.

Orders