Mr Ghassan Issa v Zouki Monash Pty Ltd
[2023] FWC 1239
•7 JUNE 2023
| [2023] FWC 1239 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ghassan Issa
v
Zouki Monash Pty Ltd
(U2023/3802)
| COMMISSIONER LEE | MELBOURNE, 7 JUNE 2023 |
Application for an unfair dismissal remedy
Introduction
Mr Ghassan Issa commenced employment with the Respondent, Zouki Monash Pty Ltd on or about 1 July 2010. The Applicant was employed as the Supervisor of the five cafes that operated within Monash Clayton hospital.
The reason given by the Respondent for the decision to terminate the Applicant’s employment was that he was dismissed because the Applicant “had gone completely rogue and was acting hysterically and disturbing the business.”[1]
The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 3 May 2023.
Application was filed outside the statutory timeframe
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
The Applicant’s employment was terminated by the Respondent with effect from 5 April 2023.
Based on a termination date taking effect on 5 April 2023, the application for a remedy should have been lodged by no later than 26 April 2023.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 7 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, I will outline the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay,
· whether the Applicant first became aware of the dismissal after the date it took effect,
· any action taken by the Applicant to dispute the dismissal,
· prejudice to the Respondent including prejudice caused by the delay,
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[2]
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 or unprecedented, nor do they need to be very rare.[3] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.
I now consider these matters in the context of the Application.
a)Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant’s favour, however all of the circumstances must be considered.[4]
The Applicant provided a witness statement setting out the circumstances that he said were relevant to the consideration of the reason for the delay. That witness statement included the following:
“On or about 10 April 2023, I called the Fair Work Ombudsman. I advised the Ombudsman that I had been bullied by my employer and terminated without any reasons. I also explained that the Respondent had not paid me my annual leave. The Ombudsman advised me that I was entitled to 4 weeks' notice pay. The Fair Work Ombudsman directed me to firstly take steps in resolving the dispute with the Respondent by requesting the Respondent to pay my annual leave and 4 weeks' notice within 7 days. At no time did the Fair Work Ombudsman (FWO) inform me that I was entitled to make an unfair dismissal application nor that any application had a 21-day time limit.
After the phone call with the FWO, on or about 11 April 2023, the Fair Work Ombudsman emailed me with links containing guidance in resolving the said dispute consistent with the advice I received over the phone. Annexed and marked "Gl-03" is a true copy of the email from the Fair Work Commission.
I followed the FWO's advise that I was entitled to have notice paid out and that I should take steps to resolve the dispute directly with the Respondent:
(a)On or about 11 April 2023, I emailed the Respondent requesting that my statutory entitlements, together with 4 weeks' notice, (the due entitlements) be paid within 7 days. Annexed and marked "Gl-04" is a true copy of the email sent by me to the Respondent.
(b)On or about 14 April 2023, I emailed the Respondent following up on my email sent on 11 April 2023. Annexed and marked "Gl-05" is a true copy of the email sent by me to the Respondent.
(c)On or about 17 April 2023, I emailed the Respondent following up, again, on my two previous emails. Annexed and marked "Gl-06" is a true copy of the email sent by me to the Respondent.
(d)On or about 19 April 2023, due to the absence of a response from the Respondent, I called the Fair Work Ombudsman regarding the next steps to be taken. The Fair Work Ombudsman referred me to the Law Institute of Victoria.
(e)On or about 19 April 2023, I contacted the Law Institute of Victoria for a letter of referral and was subsequently emailed the same. Annexed hereto and marked "Gl-07" is a true copy of the email from the Law Institute of Victoria.
(f)On or about 21 April 2023, I received a response from the Respondent advising me that my "payment [would] be processed next week".
Annexed hereto and marked "Gl-08" is a copy of the Respondent's email to the Applicant.
I believed and relied upon the Respondent's representation that my due entitlements would be paid on or before 28 April 2023.
The Respondent failed to pay me within the 7 days specified by the Respondent. To date, the Respondent has not paid me my due entitlements or part thereof.
On 28 April 2023, I engaged Hymans Solicitors. I became aware of the 21-day deadline for an unfair dismissal application when I had sought legal advice regarding my due entitlements from my solicitors.”[5]
At the hearing, the Applicants representative submitted that the evidence shows that the delay was caused by representative error, with the Fair Work Ombudsman (FWO) said to be the Applicants representative. The submission is to the effect that the FWO did not advise the Applicant competently or completely with respect to termination of employment matters and that FWO did not advise, or properly advise the Applicant of his rights to make an unfair dismissal and the time limits that apply.
It is also submitted the delay was caused by reliance on representations made by the Respondent. Those representations are set out in the evidence of the Applicant. The representation from the Respondent was an email response from the accounts officer responding to the Applicants email demanding his long service leave, annual leave and notice payment. The accounts officer advised him in the email on 21 April 2023 that “Your payment will be processed next week”.[6]
There was evidence during the hearing from the Applicant that his English is “not good”[7], and that he uses Siri on his mobile phone and assistance from his wife to read emails at home.[8] The Applicant speaks English as a second language. His first language is Arabic.[9] I have taken this evidence into account. However I also note the Applicant has been engaged in a role in which he was required to order and manage inventory and supplies for all of the Respondent's stores including stores at Moorabbin Hospital, Cranbourne Hospital and Kingstone Hospital; train new and junior staff; liaise with suppliers and representatives; organise staff rosters and assist with payroll; and ensure compliance with OHS and WHS throughout the cafes and adherence to hospital policies.[10] The Applicant presumably had a sufficient command of both oral and written English to be able to undertake these responsibilities.
The Respondent submitted, in summary, that there is not an acceptable reason for the delay. That the Applicant has not contacted the Respondent in respect of the manner of termination or alleging it to be unfair. Rather that the Applicant has simply emailed the employer about accessing his final pay. Further, that an employer’s failure to respond does not amount to an exceptional circumstance and does not excuse the Applicant’s delay.[11] The Respondent makes the point that the Applicant could have lodged the application while awaiting responses from the Applicant regarding the payment of his entitlements.
As to the submission on representative error, the Respondent submits that it is clear on the evidence that the FWO provided an email to the Applicant which contained links to information including the ability to make an unfair dismissal application and the requirement to make one within 21 days.
Having considered the evidence, I am not satisfied there is an acceptable reason for the delay. Firstly, dealing with the submission on representative error on the part of the FWO, I am not satisfied that the FWO was a representative of the Applicant. He had not engaged them to act on his behalf. Indeed, the 11 April 2023 email from the FWO specifically states, “If this process doesn’t work, the guide outlines in Step 4 some options you should consider, including contacting our office again if you would like to consider our office becoming involved.”[12]
There is no evidence that the Applicant engaged the FWO to act on his behalf in any way. However, the FWO does provide an important role as a source of independent education, assistance, advice and guidance to employers and employees.[13] If the FWO was to provide advice that was incorrect or deficient then that would be relevant to a consideration of whether it contributed in some way to the delay in lodging an application. In that context I do agree the actions of the FWO need to be considered in respect of this matter. However, having considered the evidence, I do not accept that the FWO has failed to advise or properly advise the Applicant of his rights.
Firstly, while the Applicant attests that he stated to the FWO he was bullied by the employer and terminated without any reasons, he did not appear to raise with the FWO that he wanted to contest his dismissal. Rather his concern was the non payment of his annual leave and long service leave. At the hearing, the Applicant said “Yes. I called the Fair Work after roughly seven days when get fired and - because he doesn't pay me my annual leave and long service leave”.[14] The FWO advised the Applicant of his rights on that point and advised him, at first instance, to pursue the Respondent for payment. In any event, after the conversation with the FWO, the FWO promptly provided the Applicant with an email in which were embedded various links. The first of those links titled “dismissal and notice-Fair Work Ombudsman” provides information about minimum notice periods. It also has a side bar with various links that can be clicked on to, one of which is titled “unfair dismissal”. If one clicks on that link, the relevant information as to how to apply for unfair dismissal, if you think you have been unfairly dismissed, is displayed, including the need to lodge an application within 21 days from dismissal. Further, towards the bottom of the page, there is a text box titled “Work Place Problems?” which includes information about possible applications one can make including applications for unfair dismissal and dismissal under general protections. Having regard to that evidence, I am not satisfied that the FWO has failed to properly advise the Applicant of his rights. The evidence is that the FWO provided the necessary information for the Applicant to be in a position to understand his rights. I don’t accept that the conduct of the FWO is an acceptable reason for the delay.
The Applicant was asked if he saw the links that were included in the FWO email at the time he received it. He replied that he did not read the email because he thought after you speak to the FWO, you get an email, so he paid no attention to it.[15] The reason given by the Applicant for not reading the email was not satisfactory. While English is the Applicants second language, that was not an issue here because he made no attempt to read the email at all. Had he done so, the relevant information was there. If he had difficulty understanding the contents in the links, he could have asked someone to assist him review the information.
While the Applicant was clearly engaged in correspondence with the Respondent seeking his entitlements, that is not an acceptable reason for the delay. There is no reason he could not have lodged an unfair dismissal application at the same time. The Applicant could have engaged a lawyer to represent him from the time he received advice from the lawyer referral service on the 19 April 2023. At that point his application would have been made in time. However, he did not engage a lawyer to represent him until 28 April 2023.
I have taken into account the applicants lack of knowledge of the ability to make an unfair dismissal application and the statutory time frame for doing so. Lack of knowledge of the time frame is not an acceptable reason. Nor is the fact that the Applicant was unaware he could make an unfair dismissal application an acceptable reason.[16]
In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
b)Whether Applicant first became aware of the dismissal after the date it took effect
Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 5 April 2023 that his employment would end on 5 April 2023.
In the circumstances, that is a matter is neutral.
c)Action taken by the Applicant to dispute his dismissal
Turning next to the question of the action taken by the Applicant to dispute his dismissal. There is evidence that the Applicant took action to dispute the alleged non-payment of his entitlements. The Applicant made enquiries of the FWO in respect to that issue and sent a number of emails to his employer seeking to recover payment for his annual leave and long service leave. However, there is no evidence the Applicant disputed his dismissal and he did not take any steps to dispute his dismissal until 28 April 2023, when he engaged solicitors.
Nevertheless, I accept that the action the Applicant took to contact the FWO in respect to the failure to pay his entitlements, and sent emails to his employer seeking payment, represented action taken to dispute his entitlements as a result of his dismissal. This action would not have been taken were it not for the dismissal and should be considered action taken to dispute the dismissal within the meaning of s. 394(3)(c) In the circumstances that is a matter that weighs slightly in favour of the Applicant.
d)Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.
The Respondent did not make any submission on this matter.[17]
In the circumstances, that is a matter that is neutral in this case.
e)Merits of the application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Applicant was dismissed summarily for allegedly “going rogue” in the workplace, acting hysterically and disturbing the business on the day he was dismissed. On the day of the dismissal, the Respondent submits that there was a conversation between the Applicant and Mr Panopulos, the owner. During that conversation, it is not in dispute that two warning letters were given to the Applicant that related to alleged conduct of the Applicant some four weeks prior. One warning was for two absences without cause and the other was for alleged aggressive behaviour towards his direct manager and not wearing the correct attire. It is submitted by the Respondent that the subject matter of the warnings was discussed with the Applicant at the time that they occurred. The Applicant did not dispute that there was a conversation at the time but said the conversation was not a warning rather that he was told, “… to make everything go smooth”.[18] The Applicant claims that he was requested to continue wearing his Polo shirt to work until a uniform could be supplied.[19] As to the alleged unauthorised absences, the Applicant provided an extensive account as to why he was absent on the 9 and 10 March, but did not dispute that he did not have medical certificates for those absences.[20] However, he claims that Ms. Kyro, the operations manager approved his absences. The Applicant was asked about the allegation of his aggressive behaviour associated with complaints from hospital staff about the loud music. He accepted that a nurse at the hospital complained about the music but claims that Mr Panopulos said to the Applicant “I don’t want to involve anymore. You do whatever you want to do”[21]
As to the events on the day of the dismissal, the Applicant disputes the Respondents version of events. The Applicant claims that he was asked by Mr Panopulos to sign the warning letters and that he did not want to sign them as he had not had a chance to read them. He claims that Mr Panopulos then stated that the Applicant was refusing to sign the letters. The Applicant was then asked to hand over the safe keys as he was no longer required to count the contents of the safe. The Applicant then sought from Ms Kyro that they go over the paperwork and count the money in the safe together. The Applicant claims that Ms Kyro refused to do so and became aggressive and that she stormed away “throwing a tantrum”. Shortly after that the Applicant states that Mr Panopulos approached the Applicant and told him he was fired.
The Applicant gave evidence that Mr Panopulos would swear at customers, that he is not professional in how he operates in hospitality and made allegations that he would drink Scotch whiskey in the workplace “all the time”.[22]
The Respondent submits that in the event that an extension of time was given that evidence would be led from Mr Panopulos and Ms Kyro as to the conduct of the Applicant. The Respondent clearly disputes the Applicants characterisation of his conduct.
Having considered the limited material available to me the Applicants case is not without merit. There are clearly important factual disputes as to what occurred, particularly on the day of the dismissal and the merits would alter depending on the findings of fact as to whether the Applicant “went rogue” or whether it was Ms Kyro who threw a tantrum.
I also note there is a letter from the property manager of Monash Health from November 2022 addressed to the Applicants employer, complaining of the Applicants conduct in respect to an incident that occurred at that time between the Applicant and a Monash Health employee. The letter complains of that conduct and includes the following:
“As you can understand, Monash Health is very concerned that another incident has occurred between Mr Issa and a Monash Health employee, and it notes that Mr Issa has been central to the majority of complaints received from Monash Health employees in recent years.
Whilst it is acknowledged that Zouki Monash has taken disciplinary steps in the past in response to these complaints, it must also be acknowledged that Mr Issa’s behaviour continues and repeatedly breaches the Monash Health iCare Values and Code of Conduct – a copy of which is attached for your reference.
Monash Health hereby formally requests that Zouki Monash give due consideration to this pattern of behaviour and takes appropriate action to ensure that the behaviour ceases to occur on Monash Health sites.”[23]
Aside from the factual disputes, there are other considerations such as the manner in which the dismissal was affected, including whether summary dismissal was a proportionate response. However, these factors will also be influenced by the key factual findings. There was clearly a failure to notify the Applicant of the reason for dismissal and allow him an opportunity to respond which would favour the Applicant. However, that failure would have to be assessed against the factual findings as to the conduct of the Applicant on the day of the dismissal. The Applicant had a relatively long period of employment of around 13 years which would weigh in his favour. However, this of course would have to be weighed against the other factors.
There is a suggestion from the Applicant that as the café that he was working at closed down a number of weeks after he was terminated, this suggests ulterior motives for the dismissal. However, that is of course speculative and would need to be tested on the evidence.
It seems to me therefore, that his claim is, on a preliminary assessment basis, not without merit. However, given the significant factual disputes that would be central to the determination of the matter, I am not in a position to find that the Applicants case is of such merit that it is a factor that would weigh in his favour. In the circumstances, that is a matter that is neutral.
f)Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, Cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.
The Applicant submitted that it is fair and just that a person be granted an extension of time in circumstances where they relied on the advice of the FWO (and the Respondent's misrepresentations), and this reliance has caused the delay. The delay is relatively short at 7 days. The Applicant submitted that similar circumstances of representative error outlined above existed in the Karina Zelesco v Australian Postal Corporation [2022][24] (in that case, a failure of a union to diligently advise the applicant of her statutory rights), in which Deputy President Millhouse found there were exceptional circumstances and allowed the extension of time application.[25]
I have considered these submissions, For the reasons set out earlier, I am not satisfied that the FWO caused the delay in lodging the application and did not fail to advise the applicant of his rights as asserted by the Applicant. In the circumstances I consider this to be a neutral consideration.
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
As I have indicated, I am not satisfied that there is an acceptable reason for the delay. This weighs against the Applicant. The action taken by the Applicant to dispute the dismissal in the manner described earlier, weighs slightly in favour of the Applicant. All other factors are neutral considerations.
In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will separately be issued.[26]
COMMISSIONER
Appearances:
P Lettau, appearing on behalf of Ghassan Issa
H Forbes, appearing on behalf of Zouki Monash Pty Ltd
Hearing details:
2023
Melbourne
24 May
[1] Question 3.1 of the Form F3.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Witness statement of Ghassan Issa at [21]-[26].
[6] Ibid at [GI-8].
[7] PN58.
[8] PN 58-60.
[9] Witness statement of Ghassan Issa at [3].
[10] Ibid at [7].
[11] see Gao v Department of Human Services [2011] FWAFB.
[12] Witness statement of Ghassan Issa at [GI-3].
[13] Welcome to the Fair Work Ombudsman website.
[14] PN53.
[15] PN82.
[16] 2011 FWA 673.
[17] PN204.
[18] PN92.
[19] Witness statement of Ghassan Issa at [32].
[20] PN110.
[21] PN87.
[22] PN115 – PN122.
[23] Form F3 – Annexure B.
[24] FWC 761 (05 April 2022) (Deputy President Millhouse). See especially at [53].
[25]Applicant’s Outline of Submissions at [13] and [14].
[26] PR762877.
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