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

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).

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.

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).

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

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

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.

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.

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

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.

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…

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: [2024] FWC 1016
Decision Date: 17 APRIL 2024

CaseChat Overview and Summary

In this matter, Mr Mousa Mohamad filed an application with the Fair Work Commission (FWC) seeking a remedy for unfair dismissal against his former employer, Surelinc Services Pty Ltd. The primary issue was whether the application was made within the 21-day period required by the Fair Work Act 2009. The FWC had to determine the date when the dismissal took effect to decide if the application was made out of time. If it was, the FWC needed to consider whether to extend the time limit under s.394(3) of the Act based on exceptional circumstances.

The FWC examined the evidence about when the dismissal took effect. The Applicant claimed that he was informed of his dismissal during a phone call on 22 November 2023. However, the evidence was not clear enough to conclude that the dismissal was effective on that date. The Applicant received an email from the Respondent on 8 December 2023 stating that his employment was terminated effective from 1 December 2023. The FWC found that the dismissal took effect when the Applicant received the email, which was outside the 21-day period for filing the application. The FWC then assessed whether exceptional circumstances existed to extend the time for filing the application. The Applicant attributed the delay to work-related stress, anxiety, and depression, but the evidence did not fully support the extent of the delay. The FWC concluded that exceptional circumstances did not exist and dismissed the application.

Orders