Mohamed Abdel-Ghani v Australian Turkish Maarif Foundation Limited
[2024] FWC 574
•1 MARCH 2024
| [2024] FWC 574 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mohamed Abdel-Ghani
v
Australian Turkish Maarif Foundation Limited
(U2023/13260)
| COMMISSIONER CRAWFORD | SYDNEY, 1 MARCH 2024 |
Unfair dismissal application filed out of time – representative error - exceptional circumstances – extension granted
Background
Mohamed Abdel-Ghani (Mr Abdel-Ghani) has made an unfair dismissal application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that he was unfairly dismissed by the Australian Turkish Maarif Foundation Limited (Maarif).
Mr Abdel-Ghani commenced full-time employment as a Teacher and Welfare Coordinator with Maarif on 18 July 2022.
Mr Abdel-Ghani was dismissed for alleged unsatisfactory performance on 8 December 2023.
Mr Abdel-Ghani’s Form F2 unfair dismissal application was filed on 30 December 2023. The Form F2 identified a dismissal date of 8 December 2023. The Form F2 also indicated the application was filed within 21 days of the dismissal taking effect.
On 2 February 2024, Maarif filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mr Abdel-Ghani’s application was not filed within 21 days of the dismissal taking effect on 8 December 2023 and argued that an extension of time should not be granted.
I issued directions for the filing of material regarding whether an extension of time should be granted and listed that issue for determinative conference/hearing on 21 February 2024.
Mr Abdel-Ghani sought permission to be represented by Stephen Ta from State Law Group at the determinative conference/hearing on 21 February 2024. Maarif was represented by Lara Hurrell from the Association of Independent Schools New South Wales and did not oppose me granting permission for Mr Abdel-Ghani to be represented. I decided to grant permission on the basis it would enable the matter to be dealt with more efficiently.
At the beginning of the proceeding on 21 February 2024, I indicated my provisional view was that the proceeding should be conducted as a determinative conference. This was not opposed by the parties. I confirmed this decision.
The conduct of the matter on behalf of Mr Abdel-Ghani has been unsatisfactory in many respects. During the determinative conference, it emerged that a range of evidence concerning Mr Abdel-Ghani’s argument that the reason for the delay was representative error had not been provided to the Commission. Ms Hurrell helpfully agreed to an adjournment and further determinative conference to allow the additional material to be filed. I adjourned and directed Mr Abdel-Ghani to file any additional material by 23 February 2024 and listed a further determinative conference for 1 March 2024. Mr Abdel-Ghani complied with the direction and filed further material on 22 February 2024.
Mr Ta continued to represent Mr Abdel-Ghani at the determinative conference on 1 March 2024 and Ms Hurrell continued representing Maarif.
Material filed
Mr Abdel-Ghani
In addition to his Form F2 application, Mr Abdel-Ghani relied on the following material in support of an extension of time being granted:
· Mr Abdel-Ghani’s termination letter dated 8 December 2023. I marked the letter Exhibit A1.
· A statement from Mr Ta dated 3 February 2023 with three email screenshots attached. Mr Ta takes blame for the application being filed late in the statement. I marked the statement Exhibit A2.
· A statement from Mr Abdel-Ghani dated 22 February 2024. I marked the statement Exhibit A3.
· During cross-examination on 1 March 2024, Mr Abdel-Ghani started referring to additional emails and text messages from his phone. This evidence was clearly relevant and should have been filed in response to my direction on 21 February 2024. No satisfactory explanation was provided for why this material was not filed. Ms Hurell and I viewed the emails on Mr Abdel-Ghani’s phone, and they were forwarded to my chambers during the determinative conference. Ms Hurrell helpfully did not oppose the emails being admitted into evidence, despite Mr Abdel-Ghani’s failure to comply with my direction. The emails concern communications between Mr Abdel-Ghani and Mr Ta on 30 December 2023. I marked the four emails Exhibit A4, A5, A6 and A7.
· A further statement from Mr Ta dated 22 February 2024. The statement has phone records, an email from Mr Abdel-Ghani dated 17 December 2024, a costs disclosure agreement that was signed on 1 February 2024, and a deferral of payment and direction to pay dated 1 February 2024. I marked the statement Exhibit A8.
Mr Abdel-Ghani and Mr Ta were cross-examined on their evidence on 21 February 2024 and 1 March 2024.
Mr Ta and Mr Abdel-Ghani made oral submissions and reply submissions at the end of the determinative conference.
Maarif
In addition to its Form F3 response, Maarif relied on an outline of submissions dated 16 February 2024.
Maarif also relied on the following evidence:
· A warning letter to Mr Abdel-Ghani dated 4 September 2023. I marked this letter Exhibit R1.
· A show cause letter to Mr Abdel-Ghani dated 6 December 2023. I marked this letter Exhibit R2.
Ms Hurell made oral submissions at the end of the determinative conference.
Extension of time
Section 394(2) of the FW Act provides that an unfair dismissal application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
I find that Mr Abdel-Ghani was dismissed by Maarif on 8 December 2023. Given the dismissal date of 8 December 2023, the 21-day filing period ended on 29 December 2023. Mr Abdel-Ghani’s application was filed 1 day late on 30 December 2023. As a result, Mr Abdel-Ghani needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.
Was the application made within such further period as the Commission allows?
Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether Mr Abdel-Ghani first became aware of the dismissal after it had taken effect; and
(c) any action taken by Mr Abdel-Ghani to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between Mr Abdel-Ghani and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
Consideration
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 29 December 2023. The delay is the period commencing immediately after that time until 30 December 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
Mr Abdel-Ghani does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Abdel-Ghani has not provided any reason for any part of the delay.[5]
Mr Abdel-Ghani argued the reason for the delay was representative error. It is well established[6] that:
· Representative error can constitute an exceptional circumstance. Whether or not the applicant is blameless is a key factor in assessing whether the representative error constitutes an exceptional circumstance.
· Even if representative error is established as the reason for the delay, that is only one of the factors the Commission must consider when determining whether to grant an extension of time.
The evidence provided by Mr Abdel-Ghani and Mr Ta was not overly helpful given it was not properly filed and because of inconsistencies in their evidence. For example, during cross-examination on 21 February 2024, Mr Abdel-Ghani stated he called Mr Ta on 16 December 2023 and instructed him to file an unfair dismissal application. That phone call did not occur. Mr Abdel-Ghani confirmed the phone call did not occur in his statement dated 22 February 2024. Mr Abdel-Ghani amended his evidence to state that he instructed Mr Ta to file an application during the meeting on 14 December 2023.
Despite the significant problems with the evidence provided by Mr Abdel-Ghani and Mr Ta, I consider I can make the following findings on the evidence:
a.Mr Abdel-Ghani and his wife met with Mr Ta and a partner of State Law Group on 14 December 2023 to discuss his dismissal by Maarif. Mr Abdel-Ghani is an existing client of State Law Group having instructed them in various other matters.
b.Mr Abdel-Ghani sent an email to Mr Ta on 17 December 2023. That email had several documents attached relating to Mr Abdel’s employment with Maarif and his dismissal. The email ends with the following words: “If you require further information, don’t hesitate to contact me.”
c.On 30 December 2023, Mr Abdel-Ghani contacted Mr Ta because he was concerned that an unfair dismissal application had not been filed and he thought the filing period was ending on that date. Mr Ta also thought the last day of the 21-day filing period was 30 December 2023. As a result, Mr Abdel-Ghani and Mr Ta worked together urgently to prepare the unfair dismissal application on 30 December 2023 and it was filed at 11:05pm.
d.Mr Abdel-Ghani did not receive a costs agreement for the unfair dismissal matter until 15 January 2024 and it was not signed until 1 February 2024. This confirms the filing of an application was not contingent on Mr Abdel-Ghani first signing the costs agreement.
In terms of whether Mr Abdel-Ghani is blameless for the delay, Maarif submitted that there are more steps Mr Abdel-Ghani could have taken prior to 30 December 2023 to ensure his application was filed within the 21-day period. I accept that submission and consider it weighs marginally against a finding that Mr Abel-Ghani has a satisfactory reason for the delay.
Mr Ta has consistently stated that the delay was his fault, and that Mr Abdel-Ghani was not to blame. Mr Abdel-Ghani’s evidence also confirmed he considers Mr Ta was at fault and is angry about the deadline being missed. I consider Mr Abdel-Ghani’s email dated 17 December 2023 is consistent with Mr Ta having been instructed to prepare and file an unfair dismissal application. I consider it was fair for Mr Abdel-Ghani to assume Mr Ta would contact him after that date if he needed more information to prepare the application. I consider Mr Ta’s failure to progress the application after 17 December 2023 to be representative error.
I find the reason for the delay in filing was representative error and that Mr Abdel-Ghani has a satisfactory explanation for the delay.
Did Mr Abdel-Ghani first become aware of the dismissal after it had taken effect?
Mr Abdel-Ghani became aware of the dismissal on the day it took effect, 8 December 2023. I consider this is a neutral factor.
What action was taken by Mr Abdel-Ghani to dispute the dismissal?
Mr Abdel-Ghani did not submit that he took any other relevant action to dispute the dismissal. I consider it is arguable that Mr Abdel-Ghani’s actions in promptly seeking legal advice and providing information to a law firm in support of an unfair dismissal application are relevant actions. However, given this argument was not raised Mr Abdel-Ghani, I will treat this as a neutral factor.
What is the prejudice to the employer (including prejudice caused by the delay)?
Maarif did not argue it would suffer any particular prejudice if an extension of time is granted. I consider this to be a neutral factor.
What are the merits of the application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[7]
Maarif accepted there is significant factual dispute between the parties and that these issues would need to be resolved before the merits of the case could be assessed. I agree and consider this to be a neutral factor.
Fairness as between Mr Abdel-Ghani and other persons in a similar position
Mr Abdel-Ghani did not advance an argument concerning this factor. Maarif argued it weighs against granting an extension because other persons in similar circumstances have not been granted an extension.
Vice-President Asbury has previously stated, when Her Honour was a Commissioner, that:
“As a general rule, persons who provide clear instructions to legal representatives and execute necessary documents in a reasonable time frame to allow them to be filed within time limits under the Act should not be prejudiced because of failure on the part of those legal representatives to comply. It is not unfair to other persons in the same position as the Applicant in this case, to extend the time limit for filing the application.”[8]
Given this decision, I do not consider this factor weighs against granting an extension of time, given I have found the delay was caused by representative error. If anything, it may weigh in favour of granting an extension. However, Mr Ta does not appear to be a legal representative and there is some uncertainty surrounding the instructions he received from Mr Abdel-Ghani. I consider these factors may distinguish this case. I consider this to be a neutral factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[9] Exceptional circumstances may 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 can be considered exceptional.[10] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[11]
Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.
I am satisfied Mr Abdel-Ghani has a sufficient explanation for the delay because it was caused by representative error. The remaining factors are neutral. It is well established that representative error can constitute an exceptional circumstance.
Conclusion
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.
Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[12] I am satisfied that it is appropriate to extend the period for the application to be made to 30 December 2024.
The application will proceed to be dealt with in accordance with the Commission’s normal processes.
COMMISSIONER
Appearances
Mr Ta from State Law Group representing Mr Abdel-Ghani
Ms Hurrell from the Association of Independent Schools New South Wakes representing Maarif.
Determinative conference:
21 February 2024.
1 March 2024.
Sydney.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] For example, M N Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 at [24] and [25].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[8] Dean Villalobos v QGC Limited T/A QGC [2013] FWC 1537 at [146].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[12] Fair Work Act 2009 (Cth) s 577.
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