Mr Andre Missi v Clarence House Corporation Pty Ltd
[2024] FWC 2795
•8 OCTOBER 2024
| [2024] FWC 2795 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Andre Missi
v
Clarence House Corporation Pty Ltd
(C2024/4008)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 8 OCTOBER 2024 |
Application to deal with contraventions involving dismissal – application filed out of time - jurisdictional objection – whether applicant dismissed
On 14 June 2024 Mr Andre Missi made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Missi’s allegations that he has been dismissed from his employment with Clarence House Corporation Pty Ltd (Clarence House) in contravention of Part 3-1 of the FW Act.
Section 366(1) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
The information provided in the application and in the employer response form lodged by Clarence House indicates that the application has been made out of time. Clarence House has also objected to the application on the grounds that Mr Missi was not dismissed under s.386 because he resigned.
Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1] In this case, it has been necessary to determine whether the termination was initiated by Clarence House in order to establish the date of dismissal.
In summary, I have found that Mr Missi’s employment ended on 20 March 2024 and that the employment was terminated at the initiative of Clarence House. The application should have been made on 10 April 2024 to comply with s.366(1) of the FW Act. The application was therefore made 65 days outside of the 21-day limit.
I have found that the circumstances in which the application was made are not exceptional, according to the factors in s. 366(2) of the FW Act, and so I have not granted an extension of time to file the application. The application is dismissed.
Directions and hearing
The matter was listed for a case management conference on 10 July 2024. Mr Missi did not attend the case management conference. Following the conference, my Chambers sent the following email to the parties:
Dear parties,
I refer to the above matter which was listed for case management conference before Deputy President Wright today. Mr Missi did not attend.
In Mr Missi’s absence, directions were made requiring Mr Missi to file and serve the following material, by 4.00pm Wednesday 17 July 2024:
i. An outline of submissions addressing:
a.Whether the application should be accepted outside of the 21 day time limit; and
b.the objection that Mr Missi was not terminated on the employer’s initiative (s.386(1)(a) Fair Work Act 2009)
ii. A witness statement for each of the witnesses Mr Missi intends to call at the jurisdiction hearing to deal with the above matters including any documentary material upon which Mr Missi intends to rely.
The matter has been listed for hearing at 10:00am on Wednesday 7 August 2024.
A Notice of Listing confirming the directions and hearing date will be issued to the parties separately.
Deputy President Wright recommends that the parties attempt to resolve the matter between themselves by holding informal discussions this week, before any preparation for the hearing commences.
Kind Regards,
[redacted][2]
A Notice of Listing was issued to the parties by separate email. The Notice of Listing repeated the requirements in relation to Mr Missi’s material and confirmed that Clarence House was required to serve any evidence and submissions by 24 July 2024.
In response to the Directions, Mr Missi sent an email to the Commission on 14 July 2024 in the following terms:
Dear all,
a) as I have mentioned earlier in previous emails, I have tried to reach out Clarence House in regards of my situation since my arrival in Lebanon.
They sent me back without any explanation, most importantly- I haven’t been paid neither my full salary, nor extra working, nor the fees that I paid when preparing documents for the visa. All the email correspondence between us is available.
When I understood that I couldn’t deal with it myself, I found Home Affairs website and contact you for assistance and help to find justice. That is why it took me longer than 21 days to reach out for help.
b) In regard to my alleged resignation:
I saw the resignation letter (which is dated March 16) only when Mr. Koutzoumis sent an email with it back in May. I was shown that document earlier and had no idea about their decision to fire me.Kindly take note that on March 19th the Lattouf's and Rahme families asked me to visit them, we had a long talk after which we shook hands and reconciled and the next day on March 20th I headed to work! That is where I was told to not enter the premises and hand away the keys. Then they bought me a one-way ticket back to Lebanon and I left Sydney with no money, feeling unsafe and with poor health....
Sincerely yours,
Andre Missi[3]
Mr Missi had earlier sent an email to the Commission by email on 3 July 2024 which raised the following additional matters:
· Clarence House repeatedly neglected Mr Missi’s requests in regard to visiting a doctor. Andy Lattouf and Marc Rahme provided Valium to Mr Missi without prior consultation with a doctor.
· Mr Missi had no idea what kind of medicine they gave him or its effect on his health when consuming alcohol.
· Mr Missi repeatedly asked Mr Lattouf and Mr Rahme to arrange a visit to a doctor and every time they kept saying it was hard to do or get an appointment.
· Mr Lattouf and Mr Rahme called Mr Missi’s parents about him taking medication and drinking alcohol. This adversely affected Mr Missi’s reputation with his family.
· Throughout Mr Missi’s employment there was no complaint about his performance. To the contrary, Clarence House had better results and got more clients. All kitchen staff respected Mr Missi and there was a smooth workflow during the functions with no errors.
· On 15 March 2024, Clarence House sent a new employee to the kitchen (who Mr Missi started training). This new employee refused to work in a team during a function of 400 people and told Mr Missi to get out of the kitchen (on behalf of George Lattouf). Mr Missi left the kitchen to avoid the situation escalating and immediately called Andy Lattouf and George Lattouf to help resolve the situation. Neither of them responded to Mr Missi’s calls.[4]
On 24 July 2024, Clarence House filed and served the following material:
1. Submissions in relation to permission to be represented by a Lawyer;
2. Outline of Submissions;
3. Witness Statement of Andy Lattouf dated 24 July 2024;
4. Witness Statement of Marc Rahme dated 24 July 2024.
Mr Lattouf and Mr Rahme were not required for cross-examination.
The matter was listed for hearing on 7 August 2024. At the hearing, Mr Missi represented himself. I granted Clarence House permission to be legally represented at the hearing pursuant to s. 596 of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently having regard to the complexity of the matter. Clarence House was represented by Mr Raymond Moore of Counsel.
Factual Background
Mr Andy Lattouf is the General Manager of Clarence House. Mr Lattouf explained that Clarence House conducts an event management business within the restaurant and hospitality industry from two functions centres in Belmore, New South Wales which are called ‘Clarence House’ and ‘The Lenmos’ respectively.[5]
Mr Missi is from Lebanon. Mr Missi commenced work for Clarence House on or about 1 May 2023 as a chef under a working visa (Class 400) following a recommendation to Mr Lattouf’s father, George Lattouf, who is the Managing Director and a director of Clarence House.[6]
Mr Lattouf says that Mr Missi’s employment was at first satisfactory and that an agreement was reached with Mr Missi to sponsor him for a further working visa (Class 482) which would permit Mr Missi to continue to work in Australia with a view to applying for permanent residency. An application for this visa was lodged on 2 November 2023 and approved on 5 April 2024 which was after the cessation of Mr Missi’s employment.[7]
Mr Lattouf says that Mr Missi returned to Lebanon in December 2023 for a holiday with his family who remained there. Mr Lattouf says that he noticed a change in Mr Missi’s demeanour and conduct when he returned to Australia after that holiday in January 2024. Mr Lattouf says that he spoke to Mr Missi on a number of occasions about Mr Missi’s behaviour towards staff. Mr Lattouf says that on 17 February 2024, there was an incident where Mr Missi was drinking at work and mingling with guests without prior approval then on 21 February 2024 Mr Missi left the kitchen without permission and abandoned his duties.[8] Mr Lattouf says that a similar incident occurred on 16 March 2024 which led to a conversation between Mr Lattouf and Mr Missi to the following effect:
Mr Lattouf:Andre this cannot continue or be condoned by us. We have spoken about your conduct before. It is misconduct. We had an agreement that any further conduct on your part where you just walked out on your duties would be considered a resignation and you have now just done the same thing again.
Mr Missi: I agree with you, I will resign.
Mr Lattouf:Andre I have tried to assist you as best I can but I consider that would be the best outcome for all of us at this time. I will confirm your resignation given to me in writing as the company now accepts your resignation.[9]
On 16 March 2024, Mr Missi sent the following WhatApp messages to Mr Rahme:
Hello man, call me when you get the chance please [sent at 12:20pm]
And urgently [sent at 12:20pm]
Mark, please, I need a ticket to Lebanon ASAP. And 3 months in advance to keep a good relationship between us. Thank u. I hope you understand my msg [sent at 1:45pm][10]
Mr Rahme gave evidence that the timing of these messages coincided with when he believed that Mr Missi walked out of the kitchen.[11]
Mr Lattouf produced WhatsApp messages dated 17 March 2024 showing that the following exchanges took place between Mr Missi and Mr Lattouf:
Mr Lattouf:Good morning Andre. Andre, Clarence House accepts your resignation. Please make us aware if you have left any personal belongings, and we will organise the collection of your belongings. Marc or George will be in contact with you during the day to schedule a meeting to conclude all affairs. The meeting will include addressing your final payment, your current accommodation, the matters of your sponsored visa and your safe return back overseas. [sent at 5:57am]
Mr Missi:Good morning, Andy. Your message is well received and noted. Thanks for your collaboration. Have a good day. [sent at 6:05am]
Mr Missi:Andy, if possible, I would like to get a chance to finalize all these points below ASAP because every day I’m here it costs you money’s man lets do it fast in a friendly way and respect. Concerning my knife and jacket, this is only what I need from the kitchen and a million thanks. [sent at 8:24am]
Mr Missi:And to be honest, what’s made me sad and take this is decision is that I lose a friend not a job send me my knife and jackets and let’s deal asap please. [sent at 8:30am]
Mr Lattouf:I will let you know what time today we can meet in the kitchen so that you can collect your stuff and close off everything. [sent at 8:31am][12]
Mr Lattouf says that he met Mr Missi at the Lemnos later that day and gave Mr Missi a letter dated 16 March 2024 confirming Mr Missi’s resignation.[13]
As noted above, Mr Missi denies that he received the letter and says that the first time he saw the letter was when Mr. Koutzoumis who is the lawyer acting for Clarence House, sent Mr Missi an email with the letter in May 2024.
Mr Lattouf says that he assisted Mr Missi financially with the purchase of a ticket to Lebanon and that Mr Missi left Australia on 25 March 2024.
Mr Lattouf did not hear from Mr Missi again until Mr Missi was advised on 5 April 2024 that his Visa 482 had been granted. Mr Lattouf explained that he had not advised Clarence House’s migration agent that Mr Missi’s employment had ceased and that Mr Missi had returned to Lebanon because Mr Lattouf was dealing with events leading up to a bereavement within his immediate family.[14]
After receiving the email from the migration agent on 5 April, 2024, Mr Missi sent a WhatsApp message to Mr Rahme on 8 April 2024 in the following terms:
All good man. [sent at 7:21pm]
Sorry for Andys loss, and please send my condolences for family, nothing deserves all these misunderstanding points. All good. I don’t want anything from you. I already get paid for all my working hours. Millions, thanks for everything. [sent at 7:25pm][15]
Based upon the screenshot which contained the above message, it appears that the message was sent in response to a voicemail message at 6:47pm that day and that further voicemail messages were exchanged between Mr Lattouf and Mr Missi on 13 and 19 April 2024.
Mr Missi sent an email to Mr Lattouf and Mr Rahme on 25 April 2024 as follows:
Dear all,
It’s been a month now with no updates concerning my job position while me being legally employed by Clarence House.
I reckon we should clarify whether Clarence decides to terminate the contract (which must be done according to the law) or I resume my employment clearing out the scope work and related conditions (working hours/payment methods etc.)
Looking forward to hearing from you soon.
Yours sincerely,
Chef Andre Missi[16]
Mr Lattouf sent the following response on 25 April 2024:
Andre Missi
I’m not sure how you could be confused about your services at Clarence House, as I personally and Marc and I collectively, provided a clear explanation of your termination before you were issued your flight ticket back to Lebanon.
We made it clear before you left Australia that your services were no longer needed due to conflicting opinions, continuous issues since your arrival in May 2023, and the nature of what was expected and done on a weekly basis and personal issues on your part.
The only potential source of confusion might be correspondence from immigration as I’ve had personal circumstances, including a death in the family, which have delayed my response to them and cancelling the sponsorship.
As we agreed, there are no outstanding issues in relation to the contract, as it was not fulfilled, and all payments, duties, and obligations to Clarence House were met during our discussions.
On a personal note, I hope you’ve addressed the medical issues that arose during your stay in Sydney, and best wishes from those who tried extensively to help treat your repeated illnesses.
I hope that this concludes any further confusion on you part about your services and sponsorship.
Andy Lattouf[17]
In the Form 8 filed by Mr Missi, Mr Missi claims that he was dismissed for exercising workplace rights. At paragraph 2.2 of the Form 8, Mr Missi provided the following particulars:
I was not paid my overtime, salary each month, medical care (which should be lawfully provided). Clarence House says they fired me and the reason is misconduct (which is fabricated). However, I wasn't notified about my dismissal or been paid any amount on my dismissal. They got me a one way ticket back to my home and for more than 2 months now I have been trying to contact them to finalize all the points, but to no avail. They threatened me only. However, I am still under their sponsorship and my work visa 482 is in effect. Being a father of 2 children it makes my condition more complicated. I seek for justice.[18]
At paragraph 3.1 of the Form 8, Mr Missi indicated that he is seeking the following outcome:
1. Clarence House promised to cover the cost for all the visa preparation in my country (translation fees, other docs). All the receipts are saved and available. I demand this cost to be covered.
2. During all the working period I was not paid my full salary in the amount which is noted in the agreement. I demand my salary to fully covered.
3. Working overtime compensation. In the agreement, it is written that I am to work 38 hours weekly. However, I worked overtime (around 70 hours) and I haven't been paid for those hours. I demand my overtime to be paid.
4. Dismissal explanation and compensation. I have my vision of the situation that they call "misconduct". I am a reputable chef who has worked in many different countries of the world. All the projects I have worked in gave positive outcomes to the companies, bringing more clients and increasing revenues. The case with Clarence House is not an exception either.
5. I claim for compensation for moral damages I dealing with now. The representatives of the company spread rumors about me and it effected my reputation as a chef.[19]
As the information which Mr Missi provided to the Commission in support of his case was very limited, I invited Mr Missi to provide oral evidence consistent with the Fair hearings practice note. I then adjourned the hearing for a short time so that Mr Moore could obtain instructions from Clarence House about Mr Missi’s evidence. Mr Moore then cross-examined Mr Missi.
Mr Missi gave the following oral evidence:
Prior to coming to Australia Mr Missi was consulting with Dr Issa who prescribed Mr Missi with a six months supply of ‘Alprox’ for his nerve system and to assist him to sleep. Mr Missi said he brought three months supply of Alprox to Australia and that he ran out in July 2024. Alprox is not available in Australia.
On the date of the function before the problem started, Mr Missi attended work and asked the other chef to help. The other chef said to Mr Missi, ‘you are not allowed to talk to me.’ Mr Missi says that the new chef told Mr Missi on behalf of the owners to leave.
Mr Missi did not want to create any conflict and went outside the kitchen. He felt like he was fired. Mr Missi tried to call the owners, but no one answered, so he went home.
After that Mr Missi had a meeting with the owners on 19 March 2024, shook hands and talked about everything. Mr Missi was not happy and told the owners that he wanted to go home. He did not want to work with Clarence House any more because he was not feeling good. He wanted to go home because he had poor health. He did not know what to do and said to Clarence House ‘let’s find a solution.’ After that the owners told Mr Missi to hand in the key.
Mr Missi returned to Lebanon on 25 March 2024. Mr Missi said that Clarence House told his parents that Mr Missi was drinking alcohol and taking Valium and that his behaviour had changed.
Mr Missi said that his parents, wife and children are not talking to him and that he stayed away from his home for two weeks. Mr Missi’s wife wants a divorce.
Mr Missi became aware that he could lodge a general protections application when he saw the website and decided to ask for help.
Mr Missi said that he was receiving salary by cash and did not get paid overtime. He was working 12 hours a day. He did not get paid on time.
Mr Missi took Xanax for sleeping and did not have insurance. He asked many times to go to the doctor. He went to the doctor in Lebanon who gave him new medicine.
When asked to describe his medical condition, Mr Missi said that he starts to shake from the inside and is not comfortable, if he does not take Valium and that he needs to stop taking Valium as it is not good for him. Mr Missi is currently being treated by Dr Hannanaddar, Head of Department of Neurology at a hospital.
Mr Missi tried to resolve the matter directly with Clarence House which led to a delay in filing the application.
Mr Missi said that the WhatsApp messages produced by Clarence House were selective and did not represent all of the conversations between Mr Missi and Clarence House however Mr Missi did not produce that correspondence to the Commission despite having the opportunity to do so. Mr Missi said that the emails exchanged between Clarence House and himself were a more reliable indicator of the communication between them than WhatsApp messages.
Legislation
The application has been brought under s.365 of the FW Act which provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
The first issue between the parties which the Commission has been asked to determine is whether Mr Missi was dismissed by Clarence House. The dictionary at clause 12 of the FW Act refers to s. 386 for the definition of “dismissed”.
Section 386 of the FW Act provides:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
Mr Missi alleges that he was terminated by Clarence House because he exercised workplace rights. However, these claims cannot be determined until the Commission deals with the matter under s.368, and only if the Commission issues a certificate of attempted conciliation under s.368(3). Under s.368, the Commission may deal with the matter in numerous ways including by mediation or conciliation, or by making a recommendation or expressing an opinion.
If there is a dispute as to whether the alleged dismissal the subject of the application has occurred, this is a preliminary issue which, according to the Federal Court Full Court decision in Coles Supply Chain Pty Ltd v Milford,[20] “must be resolved before the powers conferred by s.368 can be exercised at all”.[21]
In this regard, the Full Bench in Lipa Pharmaceuticals Ltd v Mariam Jarouche[22] stated,
Where the respondent to a s. 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.[23]
As Clarence House has claimed that Mr Missi was not dismissed, I must find that a dismissal occurred before conducting a conciliation conference or otherwise dealing with this matter under s.368.
Was Mr Missi dismissed?
Clarence House denies that it dismissed Mr Missi and relies upon correspondence from Clarence House to Mr Missi which confirms that Mr Missi resigned on 16 March 2024. Clarence House submits that if the Commission finds that the employment was terminated at Clarence House’s initiative, it was entitled to do so on the grounds of misconduct.
Clarence House contends that Mr Missi’s resignation from his employment with Clarence House is also evidenced by a WhatsApp message from Mr Lattouf to Mr Missi dated 16 March 2024. Mr Missi disputes this and says that the WhatsApp message must be regarded in the context of other WhatsApp messages which were not in evidence. Mr Missi claimed that he was not aware that he was no longer employed until May 2024 when he received the confirmation of resignation letter dated 16 March 2024 from Clarence House’s lawyer which was the first time he saw that letter.
Mr Missi’s version of events was that after the incident on 16 March 2024, he had met with the owners of Clarence House on 19 March 2024 and that they had resolved everything. Despite this, it appears from Mr Missi’s evidence that he was unwell and wanted to return to Lebanon. The following day, Mr Missi says he returned to work and was told to not enter the premises and to hand back the keys. He then flew back to Lebanon on 25 March 2024. Mr Lattouf and Mr Rahme denied there was any discussion with Mr Missi on 19 March 2024 and that Mr Missi attempted to attend work on 20 March 2024. However, Clarence House’s contention that Mr Missi resigned from his employment is inconsistent with an email which Mr Lattouf sent to Mr Missi on 25 April 2024 which refers to Mr Lattouf and Mr Rahme ‘providing a clear explanation of [Mr Missi’s] termination before [he was] issued [his] flight ticket back to Lebanon’ and that they ‘made it clear before [Mr Missi] left Australia that [his] services were no longer needed due to conflicting opinions, continuous issues since [his] arrival in May 2023, and the nature of what was expected and done on a weekly basis and personal issues on [his] part.’
It seems to me that the only logical way of reconciling the WhatsApp message of 16 March 2024, the letter of 16 March 2024 and the email of 25 April 2024 is to accept:
Mr Lattouf’s evidence that Mr Missi resigned after the incident of 16 March 2024;
Mr Missi’s evidence that there was a reconciliation on 19 March 2024 (which effectively cancelled the resignation);
Mr Missi’s evidence that he was not permitted to attend work on 20 March 2024 (which indicates that his employment was terminated by Clarence House).
In the circumstances and in particular having regard to Mr Lattouf’s email to Mr Missi dated 25 April 2024, I find that Mr Missi’s employment was terminated at the initiative of Clarence House, and that Mr Missi was dismissed within the meaning of s. 386(1)(a).
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 14 June 2024.
When did the dismissal take effect?
As noted above, Mr Missi says that he was not aware that his employment ceased until May 2024. I accept that it may have been unclear to Mr Missi whether his employment was ongoing or whether it had ceased when he received the email from the migration agent on 5 April 2024 advising that his Visa 482 had been granted. This occurred the week after Mr Missi returned to Lebanon and may have suggested to Mr Missi that he was still employed by Clarence House. However, the email from Mr Lattouf to Mr Missi dated 25 April 2024 made it clear that Mr Missi’s employment had been terminated. Given that there is no evidence of Mr Missi attending work or being paid after 20 March 2024, I find that the dismissal took effect on the last day which Mr Missi says he attempted to attend work which is 20 March 2024.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[24]
As I found above, the dismissal took effect on 20 March 2024. The final day of the 21 day period was therefore 10 April 2024 and ended at midnight on that day. The application was made on 14 June 2024. The application was made 65 days late.
As the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute 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) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[25]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 10 April 2024. The delay is the period commencing immediately after that time until 14 June 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[26]
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.[27]
An applicant 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 the applicant has not provided any reason for any part of the delay.[28]
At the outset, I note that Mr Missi may have initially been confused as to the status of his employment and that this confusion may explain why he did not file the application before 25 April 2024. This confusion may have been caused by the email from the migration agent to Mr Missi on 5 April 2024. However, any confusion was resolved by the email from Mr Lattouf to Mr Missi dated 25 April 2024 which confirmed that Mr Missi’s employment had been terminated.
During the hearing, Mr Missi explained that he has been experiencing difficult personal circumstances including health and family issues. At the time of filing the application, Mr Missi was outside of Australia and unfamiliar with the legal system. However this did not prevent Mr Missi from eventually locating the Commission’s website and lodging the application. Mr Missi tried to resolve the matter directly with Clarence House which led to a delay in filing the application. In relation to health issues, it appears that prior to arriving in Australia in 2022, Mr Missi was being treated with medication for sleep issues and that this medication had been replaced with Valium which was having an adverse effect on Mr Missi.
The fact that Mr Missi was trying to resolve matters directly with Clarence House is not a satisfactory reason for the delay. I accept that Mr Missi was experiencing a stressful and distressing time arising from his health and personal circumstances after his return to Lebanon. However, Mr Missi has been receiving treatment from a doctor since his return to Lebanon and there was no evidence from Mr Missi’s doctor which established that Mr Missi was suffering from an incapacity which prevented him from lodging the application. Mr Missi did not explain why his health and personal issues prevented him from lodging the application earlier than 14 June 2024. There is no evidence before me about whether Mr Missi’s health and personal circumstances actually caused the delay in filing his application, or whether they were events that occurred around the same time of the dismissal but had no impact on the date that the application was filed.
I find that potential confusion about his employment status is a satisfactory reason for Mr Missi not filing the application prior to 25 April 2024. However in the circumstances I am not satisfied that the reasons for the delay advanced by Mr Missi for the period from 25 April 2024 to 14 June 2024 weigh in favour of a finding that there were exceptional circumstances, given the lack of evidence to support these reasons, especially from Mr Missi’s treating doctor.
What action was taken by Mr Missi to dispute the dismissal?
The evidence establishes that Mr Missi sent emails to Clarence House in April 2024 disputing the dismissal.
What is the prejudice to the employer (including prejudice caused by the delay)?
No issues of prejudice have been identified by Clarence House.
In all the circumstances, I do not find that any material prejudice would be suffered by Clarence House if an extension of time were granted.
What are the merits of the application?
In the application, Mr Missi claims that he was not paid overtime, salary each month, medical care, or reimbursed for visa expenses. He disputes that he engaged in misconduct and seeks compensation in relation to the dismissal. However the determination of Mr Missi’s application is confined to a consideration of whether the dismissal arose from Mr Missi exercising workplace rights. On the basis of the limited material provided by Mr Missi, it is not possible to form a view about the merits of the application. This matter is a neutral consideration.
Fairness as between Mr Missi and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
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 regarding:
(a) the reason for the delay; and
(b) Mr Missi taking action to dispute the dismissal; and
(c) no issue of prejudice to the employer being identified; and
(d) the merits of the application; and
(e) no issue of fairness arising as between Mr Missi and other persons in a similar position.
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.[29] 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.[30]
The lack of prejudice to Clarence House and Mr Missi taking action to dispute the dismissal are potentially matters which favour an extension of time being granted. The fact that there is no issue of fairness arising as between Mr Missi and other persons in a similar position and the merits of the case are neutral considerations. However, all of these matters are significantly outweighed by Mr Missi not providing any medical and other evidence to explain the lengthy delay in filing the application from 25 April 2024, which is the date that Mr Lattouf confirmed that Mr Missi had been dismissed. This matter weighs against a finding that there were exceptional circumstances and that an extension of time should be granted.
Having regard to all of the matters provided in s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
As I am not satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Mr Missi’s application for the Commission to deal with a dismissal dispute is therefore dismissed. I note that Mr Missi has made allegations of underpayment in the application and that this decision does not prevent Mr Missi from pursuing such claims in a Court of competent jurisdiction.
DEPUTY PRESIDENT
Appearances:
Mr A. Missi, Applicant
Mr R. Moore, Counsel, for the Respondent
Hearing details:
2024
7 August
In person, Sydney
[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[2022] FWCFB 234, [15].
[2] Digital Hearing Book (DHB), 21.
[3] DHB, 20.
[4] DHB, 5-6.
[5] Statement of Andy Charbel Lattouf dated 24 July 2024, [2], (DHB, 36).
[6] Ibid, [4], (DHB, 4).
[7] Ibid, [5]-[6], (DHB, 36-7).
[8] Ibid, [9]-[17], (DHB, 37-38).
[9] Ibid, [20], (DHB, 20).
[10] Witness Statement of Marc Rahme dated 24 July 2024, [16], (DHB, 56, 59).
[11] Ibid, [17], (DHB 56).
[12] DHB, 44-5.
[13] Statement of Andy Charbel Lattouf dated 24 July 2024, [22], (DHB, 38).
[14] Ibid, [6]-[7], (DHB, 37)
[15] Witness Statement of Marc Rahme dated 24 July 2024, [22], (DHB, 56).
[16] Statement of Andy Charbel Lattouf dated 24 July 2024, [26], (DHB, 39, 51).
[17] Ibid, [26], (DHB, 39, 50).
[18] DHB, 3.
[19] DHB, 4.
[20] [2020] FCAFC 152.
[21] Ibid, [67].
[22] [2023] FWCFB 101.
[23] Ibid, [23].
[24] 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.
[25] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[26] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[27] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[28] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[29] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[30] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
Printed by authority of the Commonwealth Government Printer
<PR780033>
0
5
0