DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Salman Ahmed
v
Wilson Security
(U2020/8583)

DEPUTY PRESIDENT CROSS

SYDNEY, 5 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 22 June 2020, Mr Salman Ahmed (“the Applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant claimed he was employed, by Wilson Security Pty Ltd (“the Respondent”). The Applicant commenced his employment with the Respondent on 21 May 2018. The Applicant resigned from his employment on 14 February 2019, and that resignation took effect on that date.

[2] Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the resignation took effect, an application for a remedy should have been lodged by 8 March 2019. The application was therefore lodged outside of the time prescribed and was lodged over one year and three months after the last day on which such an application could have been made.

[3] On 6 July, Directions were issued to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his application (“the Application”) would be determined (“the Directions”).

[4] In the hearing of the Application, the Applicant relied upon his Form F2 Unfair Dismissal Application, the first page of a medical report from a Dr McNamara dated 11 April 2019, a letter from Mehdat Metry of MM Psychological Services to Dr Assad Malek regarding the Applicant, and a reply email with annexures. The Respondent relied upon a brief Outline of Submission (the “Respondent’s Submission”), and a copy of the Applicant’s resignation letter.

[5] The matter was heard on 3 August 2020.

Relevant Facts

[6] The relevant facts of the matter as disclosed by the materials filed are:

(a) The Applicant was employed by the Respondent from 21 May 2018 to 14 February 2019. The Applicant resigned verbally on 14 February 2019, and at the request of the Respondent confirmed that resignation in writing. The email of resignation was as follows:

Hi Christine,

Thanks for your email

As Discussed could you please accept my resign from Wilson Security

also I would like to thank you very much for almost one year working with a great Company Wilson Security Thank you again for understanding

kind regards

Salman AHMED

ID NO 43979

(b) The Applicant states that he resigned because he was on medication and stressed at that time.

(c) The first page of a medical report from a Dr McNamara dated 11 April 2019, noted that the Applicant suffered from stress, and that at the time of interview he was working as an uber driver.

(d) On 27 August 2019, the Respondent invited the Applicant to attend an interview for another position. That interview was cancelled before it occurred.

(e) 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: [2020] FWC 4117
Decision Date: 5 AUGUST 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Mr Salman Ahmed sought an unfair dismissal remedy against Wilson Security. Mr Ahmed was employed as a security officer and was terminated following an incident where he allegedly assaulted a colleague. He argued that the termination was unjust and sought reinstatement or compensation. Wilson Security defended the dismissal, claiming that the termination was based on valid reasons related to misconduct.

The central legal issue was whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The court examined the evidence regarding the incident and the employer's decision-making process. It also considered whether the employer followed procedural fairness principles, including providing Mr Ahmed with an opportunity to respond to the allegations against him.

The court found that Mr Ahmed's termination was not unfair. It concluded that Wilson Security had followed proper procedures and that the evidence supported the decision to terminate Mr Ahmed for his misconduct. The court was satisfied that the employer had acted reasonably in dismissing him, given the circumstances of the alleged assault. Consequently, the application for an unfair dismissal remedy was dismissed.

No further orders were made by the court.

Orders