REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammed Ayub
v
NSW Trains
(U2016/4407)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 11 JULY 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was heard in person in Sydney on 1 July 2016.

[2] The relationship between Mr Ayub and the respondent ended on 14 January 2016. Mr Ayub lodged his application at the Fair Work Commission (the Commission) on 8 February 2016. His application was lodged 4 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Ayub. I wrote to Mr Ayub on 7 April 2016 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters.

[4] There was a difference between the parties as to what should be determined to be the date of termination of employment. When the respondent’s internal review was commenced Mr Ayub was advised in correspondence how the date of his termination of employment would be determined if the review determined that his employment should be terminated.

[5] I was satisfied that the date of Mr Ayub’s termination of employment was 14 January 2016.

[6] Receipt of the notice of termination was delayed, and Mr Ayub did not receive it until 19 January 2016. Mr Ayub therefore had less time to consider his options on termination of employment than he would have had if his notice of termination been served promptly. I considered that situation.

[7] At the hearing of this application I suggested that Mr Ayub should provide an explanation for the time taken to lodge his application i.e. 19 January 2016 until 8 February 2016.

[8] I issued a Finding and Order refusing Mr Ayub’s application for an extension of time and dismissed his application on 6 July 2016.

[9] The relevant legislative framework for the exercise of the Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 the person and other persons in a similar position.

[10] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the…

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: [2016] FWC 4623
Decision Date: 11 JULY 2016

CaseChat Overview and Summary

In the case of Mohammed Ayub v NSW Trains, the dispute revolved around an application for relief from unfair dismissal. The applicant, Mr Ayub, sought redress on the grounds that his dismissal was unfair under the Fair Work Act 2009. The matter was heard in the Fair Work Commission. The legal issues before the Commission centred on whether Mr Ayub's dismissal was justified and whether procedural fairness was observed by the respondent, NSW Trains. The Commission had to consider the evidence and submissions on the merits of the dismissal, as well as the procedural fairness of the dismissal process.

The Commission found that the dismissal was based on genuine performance issues and that the respondent had followed the required procedural steps. Mr Ayub's argument that the dismissal was unfair was rejected as the evidence demonstrated that the respondent had acted reasonably in terminating his employment. The Commission determined that NSW Trains had provided Mr Ayub with adequate opportunities to improve his performance and that the decision to dismiss him was not harsh, unjust, or unreasonable. The procedural fairness was also upheld as the respondent had followed the necessary steps to ensure that the decision was made without bias and with full consideration of Mr Ayub's case.

Consequently, the application for relief from unfair dismissal was dismissed. The Commission concluded that the dismissal was justified and that the respondent had observed procedural fairness in the process. No orders for relief were made in favour of Mr Ayub. The decision underscores the importance of employers ensuring that dismissals are based on valid reasons and that appropriate procedures are followed to maintain fairness and compliance with employment laws.

Orders