Mohamed Ismail v Chandler Macleod Group Limited

[2013] FWC 6836

[2013] FWC 6836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohamed Ismail
v
Chandler Macleod Group Limited
(U2011/2475)

DEPUTY PRESIDENT MCCARTHY PERTH, 11 SEPTEMBER 2013

Application for unfair dismissal remedy - Jurisdictional objection.

[1] This matter concerns an application lodged by Mr Mohamed Ismail (the Applicant) for an unfair dismissal remedy. The Applicant asserts that he was dismissed unfairly from his employment with Chandler Macleod Group Limited (the Respondent).

[2] The Respondent asserts that the Applicant was not terminated from his employment at all and, in the alternative, that if he was, the Application was lodged out of time and there are no exceptional circumstances that exist such that the time allowed for lodgement should be extended.

[3] This application has had a tortuous path arising from significant difficulties in availability of one or other of the parties, language difficulties of the Applicant and occasions where mail addressed to the Applicant was returned. The Applicant has been variously located in Karratha, Port Hedland, Broome, and lastly for the final proceedings in Canberra.

[4] I conducted proceedings by way of hearing on 18 February 2013 and lastly on 10 September 2013. The Applicant was assisted during the proceedings by an interpreter provided by the Fair Work Commission (FWC).

[5] The Respondent provided an affidavit of Ms Hayley Burnett and supporting documentation as evidence of their contentions. Ms Burnett was not available to be examined.

[6] Ms Burnett's affidavit gives first-hand accounts of conversations with the Applicant surrounding his departure from the Respondent. The Applicant had been assigned by the Respondent to duties at BHP Billiton Limited’s (BHP) Nickel West Smelter in either Kalgoorlie or Kambalda. The Respondent asserts that as a consequence of the Applicant leaving the BHP site without permission they have been advised by BHP that he was no longer required at that site. The Applicant disputes that he left the site without permission.

[7] However, the interactions between Ms Burnett and others supported by records of accounts of the circumstances make it more likely than not that the Applicant did leave the site without permission. Even if he did not leave the site without permission the affidavit of Ms Burnett makes it clear that the Respondent did not terminate his employment but rather he was advised he was no longer required by BHP, but that if other assignments became available in which he was suitable he could be engaged there. Indeed the Respondent submitted other engagements were offered to the Applicant which were not suitable to him, apparently due to the location of those positions.

[8] There is some contradictions in the affidavit of Ms Burnett and the contemporaneous file note of her discussion with the Applicant. This was explained by the Respondent as being the terminology ordinarily used in their firm and indicated continuation of employment rather than termination of employment and an intention for other assignments with other clients.

[9] Taking both accounts into consideration I find that the Applicant's employment was not terminated but rather his assignment to BHP was. It seems to me the Applicant wrongly interpreted this as termination of his employment.

[10] If I had accepted that there was a termination of employment then the attachment (Attachment D) to Ms Burnett’s affidavit establishes that the termination would have been on 15 November 2011. The application would therefore have been lodged out of time.

[11] Notwithstanding my findings above, I have decided to consider whether exceptional circumstances exist such that the application should be allowed.

[12] It is apparent that the Applicant contacted the Australian Workers’ Union (AWU) who lodged the application on his behalf. It appears, although not expressly stated, that the reason for the delay in launching the application may have arisen because of an uncertainty as to when the dismissal took effect. However, from the Applicant's own explanations if he was terminated it would have been at the latest on 15 November 2011 during his conversation with Ms Burnett, if not earlier in conversations with his supervisors.

[13] There appears to me to be an inconsistency in the Applicant’s explanations as on one hand the Applicant is suggesting he was not dismissed until a later time, but on the other hand he is relying on the incidents and discussions around 15 November 2011 and before that to assert that he was dismissed. If the Applicant was dismissed then 15 November 2011 is the date that the Applicant’s dismissal would have taken effect.

[14] I find that the Applicant became aware of the dismissal on 15 November 2011.

[15] I have indicated above that the Applicant contacted the AWU after the dismissal had occurred and thus took action to initiate a disputing of it.

[16] The Respondent will suffer prejudice from the delay including, availability of witnesses and their recollection and accounts of the events leading up to the dismissal.

[17] Even on the Applicant’s account of the events I find that the merits of the application are weak.

[18] I also find that the fairness between the Applicant and other persons in a similar position weigh against the application being allowed.

[19] I therefore find that exceptional circumstances do not exist and as a consequence do not allow the application to be allowed as it was not lodged within the required time.

[20] The application is therefore dismissed as I find that the Applicant was not dismissed from his employment. Even if the Applicant had been dismissed, I would have found that the date of his dismissal could only have been 15 November 2011 and the application was therefore lodged out of time. There are no exceptional circumstances that exist and therefore I would not extend the time.

DEPUTY PRESIDENT

Appearances:

Applicant self represented.

Mr P Melhuish with Ms S De Vos and Ms J Caban for the Respondent.

Hearing details:

2013.

Perth and Broome (video hearing):

February, 18.

Perth, Canberra and Sydney (telephone hearing):

September, 9.

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