Manaya Chaouk v Islamic Women’s Association of Australia Inc
[2024] FWC 947
•12 APRIL 2024
| [2024] FWC 947 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Manaya Chaouk
v
Islamic Women’s Association of Australia Inc.
(C2024/527)
| COMMISSIONER MCKINNON | SYDNEY, 12 APRIL 2024 |
Application to deal with contraventions involving dismissal – effective date of termination – application out of time – no exceptional circumstances – application dismissed
Ms Manaya Chaouk was employed as a case worker by the Islamic Women’s Association of Australia Inc. (IWAA) from 21 June 2021 until a date in early January 2024. There is a dispute about precisely when the employment came to an end. Ms Chaouk last worked for IWAA in March 2023.
On 29 January 2024, Ms Chaouk applied under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving her dismissal. IWAA objects to the application on the basis that Ms Chaouk was not dismissed (abandonment of employment) and because the application was filed out of time.
This decision deals only with whether the application is out of time, and if so, whether additional time is to be allowed for the application to be made. For the reasons that follow, I find the application to be out of time. It was not made within the prescribed 21‑day lodgement period. Further, there are no exceptional circumstances that would warrant additional time for the application to be made. The application will instead be dismissed.
When did the alleged dismissal take effect?
Section 386 of the Act deals with the meaning of dismissal. A person has been dismissed if their employment has been terminated on their employer’s initiative, or they have resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Section 366(1) requires an application for the Commission to deal with a dismissal dispute under Part 3-1 of the Act to be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows.
As noted above, IWAA denies that Ms Chaouk was dismissed. It says that instead her employment came to an end by reason of abandonment of her employment. It is not necessary to resolve the dispute in order to deal with the question of whether additional time should be allowed. I will assume, for the benefit of Ms Chaouk but without deciding the matter, that she was dismissed by IWAA.
The facts relevant to termination of Ms Chaouk’s contract are these.
Ms Chaouk has two email addresses: a live.com.au account that she had nominated for use by IWAA until 10 October 2023, and a gmail account nominated for use by Ms Chaouk on and from 10 October 2023. On that day, Ms Chaouk sent a text message to IWAA saying:
“Hi, moving forward, please send any correspondence to me via email on [email protected] please do not call my phone as I do not wish to speak with you verbally.”
There is no evidence that this request was varied or withdrawn at any time after 10 October 2023.
During the period of her absence from work from 24 March 2023, IWAA found it difficult to communicate with Ms Chaouk. Attempts to contact her by telephone were unsuccessful on 6 April 2023, 26 June 2023, 8 September 2023 and 28 September 2023.
On 26 June 2023, IWAA wrote to Ms Chaouk about her long term absence and directed her to provide medical evidence in relation to her absence and capacity to return to work. Ms Chaouk did not respond to this letter.
On 4 September 2023, Ms Chaouk answered a telephone call from IWAA and in a short discussion, agreed to provide a preferred email address for communication.
On 8 September 2023, Ms Chaouk sent IWAA a text message in response to its attempt to call her, advising that she would get back to them soon as she had “more pressing matters” (her daughter was in hospital) and asking it to respect her privacy.
On 10 October 2023, Ms Chaouk sent the message described above providing her preferred email address for correspondence with IWAA. At or around the same time, Ms Chaouk made a worker’s compensation claim. The claim was declined on 14 December 2023 and I am given to understand that this decision may currently be under appeal.
On 19 December 2023, IWAA tried to contact Ms Chaouk twice by phone and by sending three text messages.
On 20 December 2023, IWAA wrote to Ms Chaouk at the nominated gmail address above. The letter referred to her “unauthorised absence” and directed her to contact it immediately to notify of the reason for her ongoing absence. The letter also said:
“In the event you do not contact us, or attend work, within the next 14 days we will assume that you will have abandoned your employment with the Company effective 3/01/2024. In this case, we will make any outstanding termination payments to you.”
Ms Chaouk did not respond to the letter of 20 December 2023. According to Ms Chaouk, she did not check her emails because she believed her email addresses had been “hijacked by unknown people”. Ms Chaouk also says the gmail account was her secondary email account and she did not check it often. There is no dispute that Ms Chaouk received missed calls from IWAA the day prior and chose not to respond.
By letter dated 4 January 2024, IWAA wrote to Ms Chaouk to advise that her contract of employment was terminated on the grounds of abandonment of employment with effect from 3 January 2024, being the date advised to her in its earlier letter of 20 December 2023. The letter was sent by email to Ms Chaouk’s gmail account. A hard copy was then sent by mail to her postal address on 5 January 2024. Although Ms Chaouk submits that her postal address was not her residential address, nothing turns on the submission. The address to which the letter was addressed was at all relevant times her postal address and the only personal address known to IWAA in relation to Ms Chaouk. The dismissal took effect when it was delivered to Ms Chaouk’s email (gmail) address.
On 8 January 2024, a second letter was sent to Ms Chaouk to her gmail account and by registered post to her postal address. The letter was processed by Australia Post on 10 January 2024 and delivered on 11 January 2024. The subject matter of the letter was Ms Chaouk’s entitlements on termination (her final pay). I do not accept the submission of Ms Chaouk that she did not receive this letter by mail or that what she received at this time was a copy of the earlier letter of termination. A photograph of an envelope received on 11 January 2024 is not evidence of the contents of the envelope. Further, the submission conflicts with the evidence of IWAA showing the document titles of the letters sent on 4 and 8 January 2024 to Ms Chaouk’s email address, as well as its postal register which links the same registered post tracking number to the letter of 8 January 2024 as can be seen on the envelope received on 11 January 2024.
On 11 January 2024, Ms Chaouk’s mother called her to advise that she had received a letter for Ms Chaouk. Ms Chaouk submits that it was only on this day that she became aware of the decision to terminate her employment. For the reasons above, I do not accept the submission. The contents of that letter were in relation to Ms Chaouk’s final pay. The letter of termination had been sent in the previous week, both by mail to the same address and to her nominated email address.
I find that Ms Chaouk’s contract of employment was terminated on 4 January 2024 when Ms Chaouk received the letter from IWAA confirming termination of her employment by email in her gmail account. It was reasonable for IWAA to rely on this means of communication with Ms Chaouk in circumstances where she had nominated this as her preferred means of communication on 10 October 2023, and had not since changed her instructions to IWAA.
Although IWAA relies on the earlier date of 3 January 2024, acceptance of that submission would require a decision in its favour to the effect that Ms Chaouk was not dismissed. As earlier stated, I have assumed for the purposes of this decision that she was dismissed. On the evidence, the earliest it can be said that termination of the employment relationship was clearly communicated to Ms Chaouk was 4 January 2024 when the email was sent to her gmail account.
Accordingly, the application is 4 days late.
Should additional time be allowed for the application to be made?
For the application to proceed, a further period in which to file the application must be allowed (s.366(1)(b) of the Act). Section 366(2) of the Act sets out the matters of which the Commission must be satisfied before allowing such further time. It provides as follows:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Reason for delay: The reasons given for delay in filing the application are that Ms Chaouk did not receive the letter of termination until 11 January 2024 because it was sent to her mother’s house, and IWAA was not entitled to rely on communicating with Ms Chaouk by email because she had not recently replied to them by email. I have rejected the first part of this submission above. As to the second, I cannot simply discount any communication between IWAA and Ms Chaouk by email (either generally or from her gmail account) because there is no evidence that she was an active user of the email address, and in any event the submission is not a fair characterisation of the evidence. Ms Chaouk stated that the gmail account was a secondary account on her phone, and she did not check it often. She did not say that she never used it, and importantly, it was the mechanism by which she had asked IWAA to communicate with her. That is to say, the use of the gmail address by IWAA was in response to Ms Chaouk’s express request. There is no evidence to the effect that when IWAA sought to do so it was unsuccessful. The email was both sent to, and received in, Ms Chaouk’s nominated email account. In the circumstances, Ms Chaouk bore responsibility for checking her gmail account on a regular basis.
Ms Chaouk submits that it would have been futile for her to seek to take advantage of the two‑week period given to her to respond to IWAA’s letter of 20 December 2023 (for example by returning to work) because no-one was working during this period at IWAA. There is no evidence to support the submission. There was also a simple alternative offered by IWAA, which was for her to contact IWAA to notify of the reason for her absence in that period. That was all that was required for her to meet the directions given on 20 December 2023.
Ms Chaouk relies on three unsigned medical certificates of capacity confirming her inability to work, the last of which expired on 21 December 2023. It does not seem to be in dispute that none of these were provided to IWAA by Ms Chaouk. The only medical certificate provided by Ms Chaouk to IWAA was dated 24 March 2023. That certificate stated that she was unfit to work due to work-related stress “until further notice”. By December 2023, her ability to rely on this certificate was becoming increasingly tenuous, and it was reasonable in the circumstances for IWAA to seek an update in relation to her ongoing absence from work. These matters are not, however, reasons for delay in making the application to the Commission.
There is some evidence to suggest that the conduct of her legal representative contributed to the delay in filing the application. The evidence is so vague and uncertain as to preclude any definite conclusion about what happened, and whether or to what extent it was the conduct of the legal representative or Ms Chaouk that contributed to the delay. There is no reliable evidence about when Mr Attia was instructed to make this application, and there is no explanation about why the application was not filed until 29 January 2024.
As best I can glean, Ms Chaouk made various attempts during January 2024 to obtain legal representation but faced difficulties due to the unwillingness of lawyers approached to take her case as well as closures over the Christmas period. She managed to contact Mr Attia (her representative in this proceeding) at least by 18 January 2024 and provided him with documentation from that time until 29 January 2024 when the application was filed. Throughout this period, Ms Chaouk also had separate legal representation in relation to her worker’s compensation claim.
Ms Chaouk submits that she was advised during her attempts to obtain legal advice that there was a 28 working day timeframe in which to lodge her application. The submission is a difficult one to accept given the notoriety of the 21-day lodgement period and the ease with which this information can be found on the internet generally and on the Commission’s website, including by legal representatives. In the absence of evidence to corroborate the assertion, I do not accept it.
The application and submissions filed by Ms Chaouk also refer to her suffering a mental disorder, travelling to Vietnam and having family misadventures like her daughter needing surgery. As to the first, there is some evidence of Ms Chaouk’s having been diagnosed with a psychological condition although this is currently in dispute. The one signed medical certificate in evidence refers only to work related stress. The medical evidence is not persuasive as to the existence of a mental disorder. As to the two later events, these occurred in September and October 2023 respectively, well before the employment relationship ceased.
Finally, I note that Ms Chaouk is a single parent who also cares for her father. There is no obvious connection between these circumstances and the delay in filing the application and no attempt was made to explain the connection in the proceeding.
Action to dispute the dismissal: The only action taken by Ms Chaouk to dispute the dismissal was her seeking legal advice in January 2024 and the eventual filing of this application.
Prejudice to the employer: There is no apparent prejudice to IWAA if additional time is allowed for the application to be made. A delay of four days is only short.
Merits: The limited communication between Ms Chaouk and IWAA after 24 March 2023 tends to support the contention that the employment relationship was to have been abandoned, and if the application proceeds this jurisdictional hurdle will need to be overcome. In the background, there are a series of events pre-dating 24 March 2023 that are said to explain Ms Chaouk’s long-term absence from work, including a “whistleblower complaint” and IWAA’s alleged retaliation after that time, including by making allegations of theft and corruption as well as bullying, harassment and lack of support, leading to a “severe mental breakdown”. In the circumstances, the merits of the application could only fairly be assessed at hearing.
Fairness as between Ms Chaouk and another person in a like position does not appear to be a relevant consideration in this case.
Conclusion
I am not satisfied that there are exceptional circumstances in this case such that additional time could be allowed to Ms Chaouk to make her application to the Commission. At its highest, the facts establish that Ms Chaouk did not know that her employment relationship was at risk, or that it was terminated on 4 January 2024, because she was wilfully blind to its attempts to communicate with her. She did not check her emails when she had a responsibility to do so. She did not respond to IWAA’s attempts to contact her by telephone.
Upon realising what had happened, Ms Chaouk tried and then obtained legal representation from Mr Attia. Her first contact with Mr Attia fell within the 21-day filing period. There is no explanation for why the application was not then filed promptly, either by Ms Chaouk or on her behalf by Mr Attia. By the time it was filed, the application was out of time. These are not exceptional circumstances, either individually or together. As a result, I cannot allow additional time for Ms Chaouk to make her application to the Commission.
The application was not filed within 21 days after the (assumed) dismissal took effect. I find that the application was not made in accordance with the Act.
The application is dismissed under s.587(1)(a) of the Act.
COMMISSIONER
Appearances:
E Attia on behalf of the Applicant.
J Harding of Sparke Helmore Lawyers on behalf of the Respondent.
Hearing details:
2024.
Sydney (by video):
March 28.
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