Mr Karim Morgan v Hamdan Lawyers
[2023] FWC 982
•1 MAY 2023
| [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 Jurisdictional Objection raised by the Respondent in this matter by 4pm on 14 March 2023.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in relation to the Jurisdictional Objection raised in this matter by 4pm on 28 March 2023.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 4 April 2023.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 28 March 2023.
Pursuant to the Directions the parties filed materials. In particular:
(a) On 10 March 2023, the Applicant filed an Outline of Submissions with three attachments;
(b) On 28 March 2023, the Respondent filed an Outline of Submissions, an affidavit of Abby Hamdan, and an affidavit of Dilshad Mahmud; and
(c) On 2 April 2023, the Applicant filed a Submission in reply.
On 11 April 2023, the matter was the subject of a hearing (the Hearing) at which the affidavits of Ms Hamdan and Ms Mahmad were admitted without objection and without either being required for cross-examination, and each party supplemented their written submissions with further oral submissions. In the circumstance where their evidence was not contradicted either in evidence in reply or cross-examination, I saw no reason to not accept the evidence of Ms Hamdan and Ms Mahmad.
Background Facts
The Applicant commenced employment as a Junior Solicitor with the Respondent on 18 October 2022. The Applicant and Respondent entered into an employment contract dated 31 October 2022 (the Contract). The Contract provided:
Misconduct
We may terminate your employment without notice, or payment in lieu of notice, if you engage in serious misconduct.
In his short period of employment, issues arose regarding the Applicant’s late attendance to work.
Around midday on 13 December 2022, the Applicant was late to an appointment with a client at the Respondent’s premises. Ms Hamdan dealt with the client, and subsequently spoke with the Applicant in her office. During their discussion Ms Hamdan made enquiries about where the Applicant had been, what work he had been performing, and suggested that the Applicant had been performing little productive work. In response, the Applicant raised his voice and advised Ms Hamden that the issues were her fault and that she was supposed to be supervising the Applicant. Ms Hamden asked the Applicant to stop yelling, instructed him to complete an attendance note for his work at a client's office that morning, and further advised the Applicant that a meeting would soon occur to address his performance. The Applicant then left Ms Hamdan’s office.
One hour later Ms Hamdan went to the Applicant's office, but he was not there. Ms Mahmud advised Ms Hamdan that the Applicant had left immediately after their meeting, and she assumed that he had gone to lunch.
At about 5.00 pm on 13 December 2022, Ms Hamdan noticed the Applicant was not in his office. Ms Mahmud advised her that the Applicant had not returned all afternoon.
As noted above, the Applicant did not file any statements of evidence, however in Application, the Applicant:
(a) In answering Question 3.1, submitted:
10. The Applicant’s employment was verbally terminated by the Respondent on 13 December 2022, being directed not to complete his workday and depart the office abruptly.
(b) In answering Question 3.3, submitted:
6. The Respondent terminated the Applicant on Tuesday 13 December.
7. The Termination occurred upon the Applicant’s attendance to the office.
8. The last contact between the Applicant and the Respondent before the Termination, was in the evening of Monday 12 December, when the Applicant was advocating for his workplace rights in a meeting with the Respondent.
In the Hearing, the Applicant described the two competing versions of what occurred on 13 December 2022, as follows:
I think it's interesting that it's been, you know, completely revisionist history in the sense that on the 13th of December it's become this completely different conversation regarding performance, where I've simply, you know, stormed out and pretty much didn't want to work. And it's not the actual fact where I was told to get out and not return and to grab my things, which was exactly what I did.
[Emphasis added]
On 14 December 2022, at about 10:30 am, Ms Hamdan instructed Ms Mahmoud to telephone the Applicant and ask if he was coming to work. In their conversation words to the following effect passed between them:
Ms Mahmud: “Are you coming to work?”
The Applicant: "I will not come, Dilshad."
Ms Mahmud: "Why?"
The Applicant: "It's ok. All good, Dilshad. I will not come."
During the conversation Ms Mahmud advised Ms Hamdan that the Applicant was not coming to work. Ms Hamdan instructed Ms Mahmud to ask the Applicant to return his keys to the office if he did not intend to return to work, which she did. The Applicant replied, "I will when I have time".
At 10.38am on 14 December 2022, Ms Hamdan sent a letter to the Applicant by email, being a Notice of Termination (the Termination Letter) in the following terms:
Dear Karim
Re Termination of employment notice
As discussed at our meetings on 16 November, 30 November, and 14 [agreed correct date 13] December 2022, I have had concerns about your performance and quality of work despite the substantial assistance, supervision and support provided to you. I have advised you many time that my duty is to supervise your work not to do your work. Even when I requested that you attend Court on three occasions, you came to the office late, and I had to summarize the law and the facts of case for you to be able to represent the clients. Accordingly, I am giving you a week notice as per your employment contract to terminate your employment. Your employment will be terminated on 21 December 2022.
You left work after our discussion yesterday without informing the staff that you are leaving. Also, you didn’t come to work today. I am happy to pay the week notice, and I don’t require your attendance for the whole week. However, I require that you attend the office today to handover the keys of my office and to collect your personal belonging.
I wish you all the best for the future.
Yours faithfully,
HAMDAN LAWYERS
In Ms Hamdan’s affidavit she explained her thought process regarding the terms of the Termination Letter, as follows:
41. I was deeply concerned that it was close to Christmas and the Applicant would have no funds during the Christmas shut-down period and would be unlikely to find alternate work.
42. It was and is my understanding that Centrelink will not immediately make payments to persons who quit their job but will immediately make payments if that employment is terminated.
43. I wrote the letter and included all of the issues which I had discussed with the Applicant during his employment and purported to terminate the employment agreement. My understanding at that time was that the Applicant had already terminated the agreement, but I was trying to be helpful and ensure that his Christmas break was as comfortable as possible.
Later, on 14 December 2022, the Applicant attended the Respondent’s office and returned his keys to Ms Mahmud. Again, later that day, and around 2.00pm, Ms Mahmud contacted the Applicant seeking return of the swipe card for accessing the building. In a subsequent conversation at 2.28pm the Applicant said, "it does not belong to Hamdan Lawyers, I will return it to the building".
The Relevant Provisions of the Act Regarding Dismissal
Part 3-1 of the Act is titled “General Protections”. Section 340(1) relevantly provides that a person must not take “adverse action” against another person because the other person has exercised (or proposes to exercise) a “workplace right”. Adverse action is taken by an employer against an employee if the employer (relevantly) dismisses the employee and that action is not authorised by law: s.342(1), item 1; s.342(3). There are other defined adverse actions that do not involve dismissal.
Section 12 defines the word “dismissed” by reference to s 386. It relevantly 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.
Division 8 of Pt 3-1 is titled “Compliance”. It establishes two regimes for dealing with disputes in which allegations of contravention of general protection provisions are made: a regime for dismissal disputes (Subdiv A) and a regime for non-dismissal disputes (Subdiv B).
Section 365 of the Act is contained in Subdiv A. It 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.
Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s.365. It provides:
Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
If a certificate is issued under s.368(3), the parties may agree to the Commission arbitrating the dispute (s.369). In that event, the Commission may deal with the dispute by arbitration and may make orders affecting the substantive rights of the parities, including orders for reinstatement, and for the payment of compensation (s.369(2)). Section 369(3) prohibits a person from contravening an order made under s.369(2).
Section 370 of the Act provides that “A person who is entitled to apply under s 365 for the FWC to deal with a dispute” must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Consideration Regarding Dismissal
I do not consider that the Applicant abandoned his employment as submitted by the Respondent. While he absented himself for an afternoon and part of a morning, such absences in the circumstances would not constitute abandonment. He was certainly not absent from work for a continuous period exceeding three working days without the consent of the Employer and without notification to the Employer,[1] and he did not resign.
A dismissal takes effect when it is communicated to the employee who is being dismissed by written notice of the day of the termination. That notice was given by the Termination Letter on 14 December 2022.
Where payment in lieu of notice is made the dismissal takes effect immediately as the employment relationship has ended.[2] The Applicant contended that the period between the Termination Letter and 21 December 2022, was not intended to be paid in lieu, as the Respondent used the words “I don’t require your attendance for the whole week”. I reject that submission, note that pay in lieu contemplates a circumstance where service of notice is not required, and find that in this matter the Applicant was relieved of a requirement of service by the Termination Letter. The employment relationship ceased on 14 December 2022.
Contrary to the Applicant’s submission, the Respondent was not required to specifically describe payment in lieu of notice in the Applicant’s final pay. The Applicant submitted payment in lieu must be identified pursuant to s.536(2)(b) of the Act, and regulation 3.46(1)(g) of the Fair Work Regulations 2009. Pay in lieu of notice is not a separately identifiable entitlement but is payment for a period of employment not required to be served. Reg 3.46(1)(g), however, refers to inclusion in a pay slip of “any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement”.
While use of the phrase “Your employment will be terminated on 21 December 2022” may have had the ability to confuse, I do not consider any such confusion arose in this matter as the Applicant repeatedly stated that, from his perspective, he was terminated on Tuesday 13 December 2022, when he was verbally terminated and directed not to complete his workday and depart the office abruptly.
Consideration Regarding Extension of Time
As outlined above, s.366(1) of the Act states that an application for a general protections remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). As I have determined that the dismissal took effect on 14 December 2022, the period of 21 days ended at midnight on 4 January 2023. The Application was therefore filed one day outside the 21-day period.
The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[3] 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.
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
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.
Unfortunately, the Applicant did not address any of the considerations for granting an extension of time in his Outline of Submissions, notwithstanding the contents of the Directions. The Respondent identified that failure in its submission where it observed:
13. The Applicant has not sought an extension of time, nor has he provided any evidence to the Commission as to why time ought be extended. In such circumstances any extension of time is opposed by the Respondent and the Commission ought not grant such an extension.
14. The Respondent does not intend to canvas all of the potential submissions that the Applicant may raise in relation to an extension of time application but notes that it is well established that a misunderstanding or miscalculation of the time period is not sufficient to qualify as exceptional circumstances.[4]
Notwithstanding the above submission, in his Submission in Reply the Applicant again failed to address any of the considerations for granting an extension of time. There is therefore no basis for considering whether exceptional circumstances exist warranting consideration of an extension of time.
Conclusion
I have found the Applicant was dismissed on 14 December 2022. And so, the Application was filed one day out of time.
I am not satisfied that there are exceptional circumstances to extend the time for the filing of the Application. An extension of time is therefore refused and the Application for a general protections remedy made by the Applicant is dismissed. An order to that effect will be separately issued.
DEPUTY PRESIDENT
Appearances:
Mr K Morgan, the Applicant
Miss Abby Hamdan, Solicitor (Hamdan Lawyers) for the Respondent
[1] Abandonment of Employment [2018] FWCFB 139.
[2] Siagian v Sanel Pty Ltd [1994] IRCA 2.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] See generally Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287; Appeal by Jonathan Hart [2014] FWCFB 3270.
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