Mr Mousa Mohamad v Surelinc Services Pty Ltd

[2024] FWC 1016

[2024] FWC 1016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Mousa Mohamad
v

Surelinc Services Pty Ltd

(U2024/909)

DEPUTY PRESIDENT ROBERTS SYDNEY, 17 APRIL 2024

Application for an unfair dismissal remedy – date dismissal took effect – extension of time

1. On 28 January 2024, Mr. Mousa Mohamad (Applicant) filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Act). The Applicant’s former employer and respondent to the application was Surelinc Services Pty Ltd (Respondent).

1. An application for an unfair dismissal remedy must be made within 21 days after the dismissal takes effect, or within such further period as the Commission allows.[1] The Respondent objected to the application on the basis that it was made outside the 21-day time limit prescribed by s.394(2) of the Act.

1. Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time[2] or alternatively, extend the 21-day time limit provided for in s.394(2)(a).

1. As the date that the application was made was not in dispute, in order to determine whether or not the application was made out of time, I must determine when the dismissal took effect. Before dealing with that issue, I set out some brief background below.

Background

1. The Applicant commenced employment with the Respondent as an apprentice in March 2021.

1. On 19 November 2023 the Applicant emailed the Respondent’s Business Services Manager, Ms. Paplinska, and advised that he had a family emergency in Melbourne and that he would be away from work for a week. He said he had already spoken with the Respondent’s manager, Mr. Puletua. Ms. Paplinska responded by saying that she would treat the Applicant’s absence as annual leave, if approved.

1. On 20 November Ms. Paplinska sought approval for the Applicant’s annual leave from Mr. Puletua. Mr. Puletua refused the request for leave. There was no evidence that the refusal was ever conveyed to the Applicant.

1. On 22 November, the Applicant spoke with Mr. Puletua by telephone. Further details of the conversation are referred to below.

1. According to the Respondent, the Applicant sent a message to Ms. Paplinska on 29 November 2023 saying he had returned home and asking about his return-to-work schedule. The Respondent said that the Applicant was asked by them to attend the office on 1 December 2023 to explain his absence but did not attend. The Respondent said there was no further contact from the Applicant and no attendance by him at the workplace. Ultimately an email of 8 December 2023 was sent by the Respondent to the Applicant indicating that the Applicant’s employment was being terminated.

1. The Applicant maintained that no proper procedure was followed leading to the termination. He said he was given no prior warnings. He said he believed his termination was linked to accusations that had been made against his father which were unrelated to his own work performance.

When did the dismissal take effect?

1. The Applicant gave evidence that he received a telephone call from the Respondent (Mr. Puletua) on 22 November 2023 saying that he was not welcome at the Respondent’s business and that he would no longer have a job on his return. He said Mr. Puletua told him only that the company ‘needed to focus on the business.’ The Applicant said he attempted to contact the company after the phone call but did not receive a response until an email was sent by the Respondent on 8 December 2023 telling him that his employment had been terminated with effect from 1 December 2023. He said he did not look at the email until ‘a couple of weeks after’ it was received.

1. The presently relevant parts of the email of 8 December read as follows:

It is with regret that I am writing to inform you of the termination of your employment with Surelinc Services Pty Ltd, effective as of 1/12/23.

Despite our attempts to communicate and discuss your situation, you have neither attended meetings nor reported to the office. Additionally, as from 1/12/2023, we have not received any medical certificates from you.

1. There is some doubt as to whether the dismissal took effect when the phone call was made on 22 November or whether it was effected by the email of 8 December 2023. In either case, the application was filed after the 21-day time period allowed by the Act. I regard the evidence here about the telephone conversation and its effect as inconclusive and insufficient to support a conclusion that the Applicant’s employment had been terminated during the phone call on 22 November 2023. Had termination occurred on that date it is unlikely that there would have been further exchanges about the Applicant recommencing work and the Respondent asking the Applicant to attend the office for a meeting. I also note that in both the original application and the employer response, the parties indicated that the Applicant was notified of the dismissal on 8 December 2023. I turn then to consider the termination email of 8 December 2023.

1. A dismissal does not take effect until an employee becomes aware of the dismissal or at least has a reasonable opportunity to become aware of it. In Ayub v NSW Trains[2016] FWCFB 5500 the Full Bench said:

[41] We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1).

1. The Bench in Ayub also considered the circumstances in which termination of employment is conveyed to an employee by email. The Bench said;

[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.

1. Although the Applicant said he did not read the email on 8 December 2023 I am not satisfied on the evidence that he did not have a reasonable opportunity to know of the dismissal until a date later than the date on which it was received by him. I therefore conclude that the dismissal in this case took effect when the Applicant received the email in his inbox on 8 December 2023.

1. As the application was not filed until 28 January 2024, the period of time for the filing of the application expired on 29 December 2023 and it is out of time by a period of 30 days.

1. The Applicant has asked the Commission to exercise its discretion to extend the time limit under s.394(3) of the Act. That course was opposed by the Respondent. The remainder of this decision deals with the question of whether or not the time for the making of the application should be extended.

Legislation

1. Section 394 of the Act provides that the Commission may allow a further period for an application for an unfair dismissal remedy to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

1. I deal with these criteria below.

Reason for the delay

1. The Applicant said that the delay was caused by work-related stress, anxiety and depression. He said the state of his mental health was such that he was unable to file the application within time. The Applicant provided a medical certificate dated 7 March 2024 in support of this submission. The certificate said:

(The Applicant) was first reviewed for work related stressors and anxiety/depression at South Hurstville Family Practice by another GP registrar on 29/11/2023. He continued to experience issues with the above during December 2023 and was referred to a psychologist on 7/12/2023.

1. Further evidence was provided showing that the Applicant had made a claim for workers’ compensation. The Applicant provided a copy of a certificate of capacity dated 29 November 2023 for use with a claim for workers' compensation under the New South Wales workers' compensation scheme. The certificate identifies the date of the injury as 22 November 2023 and refers to significant anxiety and stress as a consequence of work-related issues. It says the injury is work-related as it arises from an inappropriate dismissal/suspension from the workplace. There is no information in the certificate as to whether the Applicant was fit for work as at the date of the certificate or thereafter. A worker’s injury claim form was also provided. It is signed and dated 7 December 2023, however the form states that the claim form and the first certificate of capacity were not given or to be given to the employer until 13 December 2023. A mental health plan document dated 29 November 2023 was also supplied and rated the Applicant’s stress, anxiety and depression as ‘extremely severe’.

1. The Respondent said that the Applicant did not submit a medical certificate with his workers compensation claim and did not provide the certificate dated 29 November 2023 to the company. They said that the only medical certificate they had received was the (unsigned) one dated 7 March 2023. They pointed out that the termination email said that they had not received any medical certificates from the Applicant and they questioned why a certificate was not obtained until 7 March 2023 rather than at the time the Applicant was experiencing the issues he referred to.

1. I am satisfied that the Applicant did experience mental health issues following the conversation on 22 November 2023. I accept that he was referred to a psychologist on 7 December 2023. However, there are limitations to the evidence provided about his condition in support of his explanation of the reason for the delay. First, the certificate dated 7 March 2024 provides little information about the severity of the Applicant’s condition. Second, the certificate says he continued to experience the issues referred to ‘during December’ and was referred to a psychologist on 7 December 2023. There is little information as to the state of the Applicant’s condition during December and no indication as to whether it improved or deteriorated in that period. Further, the certificate itself does not speak to the Applicant’s condition in the period of the delay, that is, from 29 December 2023 until the date of lodgement on 28 January 2024. The Applicant’s written submission said his mental health issues persisted during December 2023 and that this prompted a referral to a psychologist on 7 December 2023. I also note that the Applicant’s oral evidence was that as at the date of the hearing he was still seeing medical professionals to treat his mental health condition.

1. While I accept that the Applicant had genuine mental health issues in late November and December 2023, I do not think the evidence provides a satisfactory explanation for the period of the delay, particularly given the lack of information about the impact of that condition during the period of the delay itself.

Awareness of the Dismissal After it had taken Effect – s.394(3)(b)

1. I accept that there was some delay between the date on which the dismissal took effect, 8 December 2023, and the date when the Applicant became aware of the dismissal. The Applicant was advised of his dismissal by email. Even though the Applicant had an opportunity to read the email terminating his employment on or about the date on which it was received, he did not open and read it until some time afterwards. The effect of this is that the Applicant had less than the full 21-day period to file the application. This weighs in the Applicant’s favour in assessing whether or not exceptional circumstances exist.

Disputing the Dismissal– s.394(3)(c)

1. The Applicant accepted that he did not make contact with the Respondent after 8 December 2023. He did not take steps to dispute the dismissal after it took effect until the lodgement of his application. There is nothing that weighs in the Applicant’s favour under s.394(3)(c).

Prejudice to Employer – s.394(3)(d)

1. There was no evidence or submission going to any relevant prejudice to the employer if an extension were to be granted. Mere absence of prejudice does not equate to exceptional circumstances. I regard this as a neutral consideration.

Fairness Between the Applicant and Other Persons – s.394(3)(f)

1. There was no evidence as to unfairness as between the Applicant and other persons in a similar position. This is a neutral consideration.

Merits of the Application – s.394(3)(e)

1. I am not required to embark on a detailed consideration of the substantive case[3] or to resolve all contested facts going to the merits for the purpose of dealing with this application. Those are matters that would be dealt with at a full hearing.

1. Directions were made requiring the parties to file material addressing the matters in s.394(3), including the merits of the application. Only very limited material was filed in response.

1. There were however a number of factual issues in dispute and despite efforts to confine the argument at the hearing to the matter at hand, the parties directed much of their attention to evidence about events post-dating the termination, the involvement of the Applicant’s uncle and father in the company and allegations about criminal behaviour, which were of little relevance to the merits of the Applicant’s unfair dismissal application.

1. The Applicant has raised issues relating to the reasons for his dismissal and deficiencies in the procedure that was followed. The Respondent maintained that the Applicant had been absent on an unauthorised absence and did not attend the workplace when requested or properly explain his absence. Having regard to the available material I do not think it is possible to express a view about the merits of the application in favour of or against either party. I regard the merits as a neutral factor in the overall assessment.

Conclusion

1. 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. 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.[4]

1. Having regard to the conclusions I have reached above relating to the matters set out in s.394(3), I am not satisfied that there are exceptional circumstances in this case and there is no basis for the Commission to allow an extension of time.

1. The Applicant’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

Mr Amer Mohamad for the Applicant.
Ms Mina Paplinska for the Respondent.

Hearing details:

By Video using Microsoft Teams at 10:00am AEDT on Thursday, 28 March 2024.

Final written submissions:

Filed by Applicant and Respondent on 3 April 2024.

[1] Section 394(2).

[2] Section 396(a).

[3] Kyvelos v Champion Socks Pty Ltd Print T2421.

[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

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