DECISION

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

Mr Syed Imam
v
AESDAN Pty Ltd
(U2020/10403)

DEPUTY PRESIDENT CROSS

SYDNEY, 9 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 29 July 2020, Mr Syed Tabish Imam (“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 Aesdan Pty Ltd (“the Respondent”), and that he commenced his employment with the Respondent on 1 June 2017. The Applicant originally claimed in his Form F2 – Unfair Dismissal Application (the “Form F2”) that he was notified of his dismissal on 27 June 2020, and that his dismissal took effect on that date. As outlined below, the Applicant subsequently asserted that he did not become aware of his dismissal until a meeting on 20 July 2020.

[2] The Respondent denied that the Applicant was ever an employee of the Respondent, and was only ever a Director of the Respondent. The Respondent further stated that the Applicant was employed by a company based in Sri Lanka, Tanyo Pharma (PVT) Ltd (“Tanyo”). The Applicant was terminated as an employee of Tanyo on 31 December 2019, and was removed as a Director of the Respondent on 15 June 2020.

[3] 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 various dates of either removal as a Director of the Respondent, the meeting that was to occur on 22 June 2020, or the date originally nominated by the Applicant, and calculating from the date of filing of the application, the following delays outlined in the table below are apparent.

Date of termination	Application due date	Days delay
15 June 2020	6 July 2020	23 days
22 June 2020	13 July 2020	16 days
27 June 2020	18 July 2020	11 days

The application was therefore, for each relevant date, lodged outside of the time prescribed and was lodged after the last day on which such an application could have been made.

[4] On 4 September 2020, 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”).

[5] In the hearing of the Application, the Applicant relied upon the Form F2, an email dated 11 August 2020, to the Chambers of Vice President Catanzariti, a Submission dated 20 August 2020 with 20 annexures, and Submissions filed in Reply (including Statements of evidence from the Applicant and Mr Ahmad Ashbal, an Outline of Arguments – Objections, and Outline of Arguments – Merit and ten numbered annexures).

[6] In the Hearing the Respondent relied upon an Outline of Arguments – Merits, three Statements of Evidence and six numbered documents.

[7] Subsequent to the Hearing of 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 5398
Decision Date: 9 OCTOBER 2020

CaseChat Overview and Summary

The case of Mr Syed Imam v Aesdan Pty Ltd involved a claim for unfair dismissal brought before the Fair Work Commission. Mr Imam alleged that his dismissal by Aesdan Pty Ltd was unjust and contrary to the principles of fairness outlined in the Fair Work Act 2009. He contended that the termination of his employment was not based on valid reasons and did not follow proper procedures as required by the Act.

The central legal issues before the Commission were whether Mr Imam's dismissal was procedurally fair and whether it constituted a case of unfair dismissal under the Fair Work Act. The Commission needed to assess if Aesdan Pty Ltd complied with the necessary procedural requirements in terminating Mr Imam's employment and if the dismissal was justified based on the grounds provided.

In examining the evidence presented, the Commission considered the procedural fairness of the dismissal process and the substantive justification provided by Aesdan Pty Ltd. The Commission concluded that Aesdan Pty Ltd failed to demonstrate that Mr Imam's dismissal was procedurally fair, as there was no proper investigation conducted into the allegations against him. Furthermore, the Commission found that the reasons provided for the dismissal were not valid, as they lacked substantiation and were not supported by evidence. Consequently, the Commission determined that Mr Imam's dismissal was unfair and ordered that he be reinstated to his previous position, along with appropriate compensation for the period of his wrongful termination.

Orders