Mr Karim Morgan v Hamdan Lawyers - [2023] FWC 982

[2023] FWC 982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Karim Morgan
v

Hamdan Lawyers

(C2023/61)

DEPUTY PRESIDENT CROSS

SYDNEY, 1 MAY 2023

Application to deal with contraventions involving dismissal

Unknown

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Karim Morgan
v

Hamdan Lawyers

(C2023/61)

DEPUTY PRESIDENT CROSS

SYDNEY, APRIL 2023

Application to deal with contraventions involving dismissal – whether dismissal - application filed out of time – circumstances not exceptional - application dismissed.

This decision concerns an application (the Application) by Mr Karim Morgan (the Applicant) for a general protections remedy pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), arising out of the Applicant’s allegations that the Applicant had been dismissed from his employment with Hamdan Lawyers (the Respondent) in contravention of Part 3-1 of the Act.

In the Application, the Applicant claimed that he was notified of his dismissal on 13 December 2022, and that the dismissal took effect on 20 December 2022, though it would appear the Applicant actually claims the dismissal took effect on 21 December 2022. It is a matter of record that the Application was first made on 5 January 2023, with an amended application filed on 9 January 2023.

In response to the Application, the Respondent raised the jurisdictional objections that the Applicant was not dismissed, and the Application was filed out of time. Pursuant to s.366(1) of the Act, General Protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow.

If the alleged dismissal took effect on 13 December 2022, the Application has been made outside of the time prescribed, and two (2) days after the last day on which such an application could have been made, being 3 January 2023. If the alleged dismissal took effect on 14 December 2022, the Application has been made one (1) day after the last day on which such an application could have been made. If the dismissal took effect on 20 or 21 December 2022, the Application has been lodged within the time prescribed.

On 10 February 2023, directions were issued in the notice of listing to program the manner in which the Application was to proceed (the Directions). On 21 February 2023, my Chambers issued an amended set of Directions as the principal of the Respondent was on leave for personal reasons.

The Directions required the filing of materials for the determination of whether the Applicant was dismissed, and whether he would be allowed an additional period within which to lodge the Application, and were as follows:

1. Mr Karim Morgan (the Applicant) is directed to file with the Fair Work Commission, and serve on Hamdan Lawyers (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in relation to 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: [2023] FWC 982
Decision Date: 1 MAY 2023

CaseChat Overview and Summary

The case of Mr Karim Morgan v Hamdan Lawyers involved a dispute between the Applicant, Mr Karim Morgan, and the Respondent, Hamdan Lawyers, regarding the Applicant's dismissal and the timeliness of his application for a general protections remedy under the Fair Work Act 2009 (Cth). The Applicant alleged that he was dismissed by the Respondent in contravention of the Act, while the Respondent raised jurisdictional objections regarding the timeliness of the Application and whether the Applicant was indeed dismissed. The Fair Work Commission, led by Deputy President Cross, was tasked with determining these legal issues.

The primary legal issues in this case centred on whether the Applicant was dismissed by the Respondent, and if the dismissal was indeed outside the statutory time limit for filing an application for a general protections remedy. Additionally, the Commission had to determine whether the circumstances warranted an extension of the time for filing the Application.

The Court meticulously examined the evidence presented by both parties, including the affidavits of Ms Hamdan and Ms Mahmud, and the Applicant's submissions. The Court found that the Applicant was not dismissed on the date he claimed, 13 December 2022, but rather on 14 December 2022 when the Termination Letter was sent. Furthermore, the Court concluded that the Application was filed one day outside the statutory 21-day period, and that the Applicant failed to provide any evidence or argument supporting an extension of time, thereby not satisfying the requirement of exceptional circumstances for such an extension.

In light of these findings, the Court dismissed the Application for a general protections remedy on the grounds that it was not filed within the statutory time limit and no exceptional circumstances were present to warrant an extension of time.

The final orders of the Court will reflect the dismissal of the Applicant's Application for a general protections remedy.

Orders