Mohammed Mahmud Ahmad Maqbool v Carmerlina Management Pty Ltd T/A Hewatt Earthworks Pty Ltd

[2013] FWC 607

[2013] FWC 607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammed Mahmud Ahmad Maqbool
v
Carmerlina Management Pty Ltd T/A Hewatt Earthworks Pty Ltd
(U2012/16035)

COMMISSIONER DEEGAN CANBERRA, 25 JANUARY 2013

[1] On 28 November 2012, Mr Maqbool (the applicant) lodged, pursuant to s.394 of the Fair Work Act 2009 (the Act), an application for unfair dismissal remedy in relation to the termination of his employment by Carmerlina Management Pty Ltd (the employer).

[2] On 10 December 2012, the employer lodged a Response to Application for Unfair Dismissal Remedy stating that the applicant had been notified of his dismissal on 17 April 2012 and that the application had not been made within 14 days of the date on which the dismissal took effect, as required by s.394(2) of the Act.

[3] According to the initiating application filed by the applicant, his dismissal took effect on 17 May 2012. It is apparent, even on the date offered by the applicant, that the application was filed 181 days after the expiration of the 14 day time limit. It is therefore necessary for a determination to be made as to whether the application will be accepted.

[4] Section 394 of the Act provides as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

[5] At the hearing, Mr Maqbool appeared in person and made the following submissions:

• he was employed by the employer from 1 June 2011 as an engineer ;



• on 17 April 2012 he was notified that, due to lack of work, his position was to be terminated and was given four weeks’ notice in accordance with his contract;



• he worked two weeks of his four weeks’ notice and was paid in lieu for the remaining two weeks;



• his last day of work was about 1 May 2012.

[6] The applicant claimed to have been told by his employer at the time of his termination that the project on which he had been working was to be suspended, and that if the employer obtained more work he would be offered reemployment.

[7] About two months after ceasing work, the applicant found other employment on contract in Sydney. At the cessation of that contract around the end of September he returned to Canberra and made enquiries with his former employer about reemployment

[8] The applicant submitted that he had not filed his application within the 14 day time limit mandated by the legislation as:

• he believed his employer’s statement that there was no work and that the project he was working on was to be put in suspension;



• he believed his employer’s assurances that he would be reemployed if work became available;



• it was not until he returned to Canberra after his 3 month contract in Sydney and was informed that his former employer had no position for him, despite having commenced a large contract, that he made some enquiries and reached the conclusion that his dismissal may not have been a genuine redundancy and decided to lodge the claim.

[9] When asked why he did not lodge the claim until 28 November 2012, despite having returned to live full-time in Canberra in early October 2012, the applicant said, in effect, that he did not wish to take action against his employer any earlier as he was still hoping to be reemployed.

[10] I have considered the question whether a further period should be allowed for the lodgement of this application in light of those matters set out in s.394(3) of the Act.

[11] I do not accept the reasons given by the applicant for the delay in filing his application as establishing the existence of “exceptional circumstances”. At the time of his termination the applicant accepted the employer’s claim that there was no work. He acknowledged that things had been quiet at the time. Even if I accept that the applicant was told that the project upon which he had been engaged was to be suspended and that this had not occurred, I do not accept that this is an acceptable excuse for not lodging his application until almost six months after the time for lodgement expired. There is no excuse for his failure to lodge upon his return to Canberra in early October. The application was not lodged until six weeks after his return.

[12] The applicant took no action to directly contest his claim of unfair dismissal with his employer at any time during the six months prior to lodging his application with Fair Work Australia. He kept in touch with his employer but only for the purpose of seeking further employment.

[13] The employer claims no prejudice resulting from the delay in filing the application.

[14] While the applicant’s claim for unfair dismissal appears, on the information provided, to be more concerned with the failure of the employer to offer further employment once work picked up, rather than a real concern about whether the original termination was a result of a genuine redundancy, I am not prepared to find that that there is no merit in the application.

[15] The matter of fairness as between the applicant and other persons in a similar position has no application in the circumstances of this case.

[16] Taking all the matters set out in s.394(3) into account, I am not satisfied that there are exceptional circumstances in this matter such that I should allow further time for the filing of the application.

[17] The application is dismissed.

COMMISSIONER

Appearances:

Applicant in person

No appearance for the employer

Hearing details:

2013.

Canberra:

January 25.

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