Mr Shaheen Akhtar v Rays Snack Bar and Spicy Food

[2011] FWA 6213

[2011] FWA 6213

FAIR WORK AUSTRALIA

DECISION

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

Mr Shaheen Akhtar
v
Rays Snack Bar and Spicy Food
(U2011/8574)

COMMISSIONER DEEGAN CANBERRA, 9 SEPTEMBER 2011

Termination of employment - jurisdictional objection (out of time).

Introduction

[1] On 7 June 2011 Mr Shaheen Akhtar (the Applicant) lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant claimed that he had been dismissed from his employment with Rays Snack Bar and Spicy Food (the Respondent) with effect from 27 May 2011.

[2] The Respondent objected to Fair Work Australia’s jurisdiction to deal with the application on the basis that it was filed outside the 14 day time limit allowed by s.394(2)(a) of the Act.

[3] The matter was listed for a hearing of the jurisdictional objection on 15 August 2011 in Alice Springs. At the hearing the Applicant was unrepresented and permission was given for the Respondent to be represented by a solicitor.

[4] At the hearing the Applicant gave evidence and was cross-examined, and evidence was given by Mr Chaudury Mohammed Shabir, for the Respondent. The hearing was conducted under difficult circumstances as English was not the first language of either witness. The Applicant had requested the assistance of an Urdu or Hindi translator but this request, which was made late on Friday 12 August, could not be accommodated in Alice Springs at such short notice.

The Parties’ Evidence

[5] As the application lodged by the Applicant claimed that the termination of his employment took effect on 27 May 2011, it appeared that the application had been lodged within the 14 days allowed by the Act. The Respondent disputed the date of effect of the termination claimed by the Applicant.

[6] Mr Shabir is a part-owner of ‘Rays Snack Bar & Spicy Food’, a business carried on by a family partnership ‘C.M Shabir & M.A Shabir’ registered in the Northern Territory (ABN 49 493 235 165).

[7] It was Mr Shabir’s evidence that he had sponsored the Applicant, who was his wife’s brother, for a visa under s.457 of the Migration Act 1958 and employed him as a cook at Ray’s Snack Bar and Spicy Foods. The business had been losing money during the Applicant’s employment and the Applicant had also been working at another job, contrary to the terms of his visa.

[8] It was the evidence of Mr Shabir that by November 2010 the business was losing so much money that he decided to close the shop. He stated that he did not see the Applicant again until he went to his residence in March 2011 to provide him with two notices of termination of employment, once on 7 March and again on 18 March. According to Mr Shabir he found out that he was also required to inform the Department of Immigration and Citizenship (DIAC) that he had terminated the Applicant’s employment. He telephoned an officer of DIAC and subsequently sent that officer a copy of the notice of termination that he had given the Applicant. He informed the departmental officer that the applicant had not been coming to work and that he had obtained employment elsewhere.

[9] The Applicant took issue with the evidence given by Mr Shabir and claimed that he had been working at the business until 27 May 2011. When this was put to the Mr Shabir he reiterated that he had closed the business in November 2010 and then reopened it with other staff in February 2011. He stated that the Applicant had not attended the business premises since it reopened in February 2011.

[10] It was the Applicant’s evidence that he commenced working for Mr Shabir on 30 November 2008. The Applicant denied that the business was closed late in 2010 and claimed that he had remained working there until 27 May 2011. It was his evidence that he ceased working on that date because he had received a letter from the Department of Immigration and Citizenship.

[11] In response to a question from the tribunal as to the date of his last payment from the business, the Applicant stated that he had never been paid. He claimed that for the period of his residence in Australia he had relied on savings he had brought with him and income from a part-time position he had at another business from February 2009 until October 2010. He had ceased that part-time employment because he had been informed by that employer that he could not work there “according to the immigration law”.

[12] The Applicant’s evidence was that he remained working at the Respondent’s business until he received the letter from DIAC and was informed by the manager at the business, Mr Shabir’s daughter, that he had been dismissed. He stated that both Mr Shabir’s daughter and the daughter’s husband had also been working with him in the business.

[13] The Applicant denied ever signing a wages book at the business but claimed that he had signed an attendance book.

[14] According to the Applicant he did not respond to the letter he had received from DIAC and his visa had since been cancelled.

[15] After a short adjournment Mr Shabir produced the “wages book” which he claimed showed that the Applicant had been paid. He stated that the Applicant had not been paid by bank deposit or cheque but had taken his wages from the till.

[16] The Applicant was then cross-examined about the entries in the wages book. He stated that the book was an attendance book. It did not show wages, superannuation or taxation detail. He also stated that he had never received a pay slip. When asked why he had ceased signing the book in March 2011, the applicant claimed that it was no longer there.

[17] In response to a claim by the Applicant that no taxation or superannuation had been paid by his employer in respect of his employment, the Respondent’s representative produced a Notice of Assessment in the name of the Applicant from the Australian Taxation Office for the financial year ending 30 June 2010 . Mr Shabir claimed that the document had been sent to his address and he had opened it by mistake. It was then that he had discovered that the Applicant was working at another job.

[18] When it was put to the Applicant that the wages book showed, in addition to attendance, the gross amount he was paid and the amount of tax deducted from the gross amount, the applicant claimed that those figures were not there at the time he signed the book and must have been inserted later. It was put to the Applicant that he had written some of the disputed information himself. The Applicant denied this, claiming that he had written only those figures relating to attendance.

Consideration

[19] The first matter for determination is the date of effect of the termination.

[20] The Applicant claims that he only became aware that his employment was terminated when he received the letter from the Immigration Department on 27 May 2011. A copy of the letter was produced. The letter was apparently sent by registered mail and was dated 20 May. The letter advised the Applicant of the existence of a ground for cancelling his s.457 visa because, under the terms of his visa, he must not cease employment for a period exceeding 28 days. The letter notes that the Applicant’s sponsor (the Respondent in this matter) advised the Department on 5 April 2011 that the Applicant had ceased employment on 7 March 2011.

[21] The Respondent produced an email dated 23 February 2011, purportedly from a Migration Agent, instructing Mr Shabir to send a copy of a termination letter to the Department of Immigration and Citizenship, informing Mr Shabir of the Applicant’s visa approval number, reminding Mr Shabir that the Applicant remained his employee until his employment was terminated, and advising Mr Shabir that he had a sponsorship obligation to continue to pay him.

[22] The evidence in this matter is far from satisfactory. I found neither witness particularly credible. I make no findings as to whether the Applicant was in receipt of payment from the Respondent. The wages book could support the evidence of either witness. It is incomplete in many respects and the figures for attendance appear to be in a dissimilar hand writing to those entries in the book relating to wages. The Applicant’s initials appear to be related to confirming attendance rather than receipt of wages.

[23] The only objective evidence before me is the letter from DIAC. That letter, which was produced by the Applicant, confirms the Respondent’s evidence that the Department was notified on 5 April 2011 that the Applicant’s employment had been terminated with effect from 7 March 2011. While not conclusive, this information, together with the fact that the Applicant did not sign the wages/attendance book post-March 2011, has satisfied me that the Applicant was aware, at least by the third week of March 2011, that his employment had been terminated. Mr Shabir claims to have given the Applicant two notices of termination, on 7 and 18 March, and, despite the Applicant’s denial that he received the notices, I am prepared to accept at least that part of Mr Shabir’s evidence.

[24] I have reached the conclusion that the Applicant’s employment was terminated with effect from, at the latest, 18 March 2011. In order to comply with the statutory time limit the application should have been filed by 2 April 2011. It was not filed until 7 June 2011, more than 2 months late.

[25] I must now consider whether I should allow, pursuant to the provisions of sub-sections 394(2) and (3) of the Act, further time for lodgement of the application. The Applicant put forward no reason for failing to lodge his application within the 14 day time limit other than his claimed ignorance of the termination, which I do not accept. There was no suggestion that he took any action to challenge the termination until informed that, as a consequence of the loss of his employment, his visa was in danger of cancellation. I make no findings as to the merit of the matter given the state of the evidence before me. There is no issue of fairness as between the Applicant and others in a similar position.

[26] I am unable to conclude that there are exceptional circumstances in this matter which would persuade me to allow further time for the lodgement of the application. If the Applicant maintains his claim that he was never actually paid during his employment by the respondent he should raise this with the Fair Work Ombudsman and the Department of Immigration and Citizenship.

COMMISSIONER

Appearances:

Mr Shaheen Akhtar, self-represented Applicant.

Ms Julia Anderson, Povey Stirk Lawyers, for the Respondent.

Hearing details:

2011.
Alice Springs:
August, 15.

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