Mr Abraham Al-Ali v Australian Taxation Office
[2024] FWC 1727
•1 JULY 2024
| [2024] FWC 1727 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Abraham Al-Ali
v
Australian Taxation Office
(U2024/5080)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 1 JULY 2024 |
Application for an unfair dismissal remedy
Mr. Abraham Al Ali (applicant) was previously employed by the Commonwealth as represented by the Australian Taxation Office (respondent). His employment came to an end when it was terminated by the respondent on 12 April 2024 for what the respondent said was a breach of the Australian Public Service (APS) Code of Conduct (Code) in accordance with s.29(1) of the Public Service Act 1999.
On 4 May 2024, the applicant made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under Part 3-2 of the Fair Work Act 2009 (Act). It was common ground that the application was made outside the 21-day time limit prescribed by s.394(2) of the Act by one day.
The applicant has asked the Commission to extend the time period for the making of an unfair dismissal application. Such an extension can be allowed under s.394(2)(b) and (3) where the Commission is satisfied that there are exceptional circumstances, taking into account the matters referred to in s.394(3). For the reasons that follow, I am not satisfied that there are exceptional circumstances which would warrant an extension of time.
Section 394(3) provides as follows:
(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.
I will consider each of the above matters in turn.
Reason for the delay
The applicant referred to his difficult personal circumstances as accounting for the failure to file his application within the required time period. This included the mental illness of his mother, for whom the applicant has a carer’s responsibility. The applicant said he also cares for his five school-age younger brothers. He said that he is financially responsible for his family and that since his termination, he has faced severe financial difficulties and had to take odd jobs to pay the bills and house his family. He said he receives only minimal social welfare support and has applied for and is awaiting rental assistance. He said his father has commenced divorce proceedings against his mother. The applicant said he had sought legal representation but was unable to secure representation because of his inability to guarantee payment of legal fees. He said that his mental health had deteriorated since the termination of his employment. The applicant supplied medical certificates attesting to his mother’s medical condition and court orders demonstrating the breakdown of his parents’ marital relationship.
The respondent acknowledged the difficult personal circumstances faced by the applicant but pointed out that the circumstances have been ongoing for several years. They said the applicant’s mother’s medical condition had existed since at least 2016 and that the marital breakdown had occurred in 2018. The respondent said that while the applicant may have provided some care for his mother and siblings, the evidence showed that his mother had been in need of full-time care since at least 2015 and pointed out that the applicant’s application stated that his mother “is looked after by NDIS workers.”
The respondent said that the fact the applicant was able to work odd jobs and provide some care to his mother supported a view that he had the capacity to conduct his usual affairs despite the difficult circumstances he outlined. Further, the respondent argued that there was no evidence that these activities prevented the applicant from filing within the 21-day time limit.
The respondent submitted that the applicant had not provided any medical evidence as to the state of his own mental health during the relevant period or the effect, if any, this may have had on his capacity to file an application within the 21-day time period. The respondent argued that financial distress was not unexpected after the termination of employment and was not of itself, an exceptional circumstance. The respondent said the applicant could have availed himself of the waiver of application fees for applicants facing serious financial hardship. Finally, the respondent said that there was no explanation as to why the applicant’s inability to secure legal representation prevented him from filing the application.
While it was not in dispute that the applicant faced a challenging personal and domestic situation, many of those circumstances, such as his mother’s illness and the applicant’s parents’ marital breakdown, had existed over an extended period prior to his termination, including during the period of the applicant’s employment. The applicant was nonetheless able to function in the workplace during this time. There was nothing to suggest that these particular domestic circumstances had deteriorated to any appreciable degree in the period following his termination so that they presented an additional impediment to the lodgement of an application. The applicant was also able to engage in other ‘odd jobs’ during the period after his termination and had some personal capacity to carry out ordinary tasks, even if those tasks had become a matter of serious economic and domestic necessity.
The financial consequences that followed from the loss of employment would have no doubt added to the applicant’s difficulties. This is not necessarily an unusual occurrence in termination situations, but I do take into account the particular precariousness of the applicant’s situation and the fact that dealing with those issues would have consumed some of his time and energy.
I note that the applicant was told by the respondent on the day of his termination that he could approach the Commission and he had the benefit of the full 21-day time period in which to apply. I also take into account the capacity for an applicant to obtain a waiver of the application fee in cases of serious financial hardship. I am not satisfied in this case that financial circumstances alone or in combination with other factors seriously impeded the applicant from filing an application.
In the absence of medical evidence as to the status of the applicant’s own mental health in the period after his termination it is difficult to make informed findings about that matter and how it may have contributed to the delay. I do not propose to do so. I also do not consider that the inability to obtain legal representation adequately explains the reason for the delay.
Whether the person first became aware of the dismissal after it had taken effect
It was common ground that the applicant became aware of the dismissal on the date it took effect. This is a neutral consideration in the overall assessment.
Any action taken by the person to dispute the dismissal
On the day he was notified of his termination, the applicant asked the respondent what he should do if he was not happy with the decision to terminate. Shortly thereafter he was advised that he may seek advice from the Fair Work Commission. The notice of termination itself also advised the applicant that advice could be obtained from the Commission and provided the Commission’s contact details. The applicant said very shortly after he was notified of his termination that he would be “seeking litigation as per legal advice given to me” but then took no further steps to dispute the termination until the filing of the application after the statutory deadline had passed. The initial advice from the applicant that he would be “seeking litigation” weighs slightly in the applicant’s favour, although after the limitation period had passed without any further steps being taken, it would have been reasonable for the respondent to assume that the decision would not ultimately be challenged.
Prejudice to the employer (including prejudice caused by the delay)
The applicant argued that there was no relevant prejudice to the employer. The respondent accepted that to be the case. There is nothing weighing against the applicant under this heading.
The merits of the application
The applicant said that he was asked about the misconduct he was accused of months after the alleged events had been raised with him. He said by that time he had been suspended from work and did not have access to his notes or workstation which would have assisted the preparation of his response. He said he could not remember all the details of the relevant events by the time he was required to defend himself and that the investigation process was not objective. He said that any witnesses said they did not see or hear anything, that the conclusions of the investigation were based on inferences and his version of events was disregarded. The Applicant said his “stellar reputation and work ethic” were not taken into account.
The respondent pointed out that the applicant had been given a previous warning about inappropriate workplace behaviour. They said there was a valid reason for the termination of the applicant’s employment and that the applicant had been accorded procedural fairness in the process that ultimately led to his termination. The respondent said the allegations were in clear and detailed terms and that the applicant had a reasonable opportunity to respond to the allegations which he availed himself of. The respondent said that all relevant material was carefully considered, including that provided by the applicant. They said the findings were available on the material and that termination was an appropriate and proportionate response. The respondent pointed out that the applicant was advised of the allegations in relation to conduct alleged to have occurred on 8 January 2024, on 31 January and in relation to conduct alleged to have occurred on 7 February, he was advised on 13 February. They said the applicant did not request access to his notes or workstation.
For present purposes it is not necessary or desirable to resolve all contested issues of fact going to the merits of the application.[1] There are however a number of factual aspects of this matter which were not in issue or the existence of which are sufficiently evidenced by the existence of key documents. This includes documents detailing the previous warning, the more recent allegations against the applicant and the procedure followed in the investigation and the termination. I am of the view that the documentation shows that applicant was made aware of the allegations against him in a timely manner and had a reasonable opportunity to respond to the allegations. The applicant did respond to the allegations.
The applicant’s response to the first allegation was that he did not recall or did not intend the conduct. He did not expressly deny the conduct. He accepted that “everyone was entitled to their personal space and the right to feel safe in the workplace” but then said he would have “appreciated any warning from (his female work colleague) about (him) crossing boundaries.” As to the second allegation, he did not deny that a sexually explicit conversation had taken place in the workplace but gave a different version of the conversation which was ultimately not accepted. As to the third allegation, at least insofar as the text messages to a work colleague were concerned, the content of those messages was not in dispute and were found by the respondent to be threatening, intimidating and demeaning. The respondent was entitled to view the messages in that way and to view the applicant’s explanation, that the recipient would have known that the messages did not have any substance, as unsatisfactory.
In my view the applicant’s case on the merits of the application is weak and this weighs against a conclusion that exceptional circumstances exist.
Fairness as between the person and other persons in a similar position
Neither party drew to my attention any other person with whom the relevant comparison could be made. This is a neutral consideration.
Exceptional Circumstances
In Nulty the Full Bench said:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Having considered each of the matters referred to in s.394(3), I am not satisfied that there are exceptional circumstances justifying an extension of time in this case.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Mr Al-Ali, for the Applicant.
Ms Smith-Roberts, Solicitor for the Respondent
Hearing details:
By Video using Microsoft Teams at 10:00am AEST on Friday, 21 June 2024.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
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