Mr Tony Ibrahim v I Sec Security T/A Isec

[2017] FWC 611

[2017] FWC 611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Tony Ibrahim
v
I Sec Security T/A ISEC
(C2016/6141)

COMMISSIONER ROE MELBOURNE, 31 JANUARY 2017

Application to deal with contraventions involving dismissal – extension of time.

[1] Mr Ibrahim was employed by ISEC for two weeks prior to his dismissal on 15 August 2016. The following facts were accepted by the parties:

● Date of dismissal: 15 August 2016.
● Date of meeting to discuss the ending of employment: 15 August 2016.
● Date unfair dismissal application (U2016/10871) was made: 1 September 2016.
● Date Mr Ibrahim was advised that it appeared he did not have the minimum employment period required: 7 September 2016.
● Date Mr Ibrahim submitted a response to the Fair Work Commission letter of 7 September 2016: 20 September 2016.
● Date the Fair Work Commission issued a finding and order dismissing the application because of the lack of minimum employment period: 23 September 2016.
● Date general protections application made: 13 October 2016.
● Application was received by the Fair Work Commission approximately 38 days late.

[2] Section 366 of the Fair Work Act 2009 provides that I may allow a further period for the application if I am satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a similar position.

The reasons for delay

[3] The reasons given for the delay are:

● Mr Ibrahim submitted an unfair dismissal application within 21 days of the dismissal.
● Mr Ibrahim received advice from the Fair Work Commission on 7 September 2016 that he did not appear to have the minimum employment period. Mr Ibrahim sought advice at the same time he was moving house which caused some delay. Mr Ibrahim responded on 20 September 2016. The Fair Work Commission issued a decision dismissing his application on 23 September 2016. Mr Ibrahim moved house on 23 August 2016.
● Mr Ibrahim then sought legal advice. This process took some time. Initially he was considering an appeal against Senior Deputy President Drake’s decision to dismiss his unfair dismissal application. He received further advice on 29 September 2016. He lodged his application on 13 October 2016.

[4] I am not satisfied that there is a reasonable explanation for the whole of the period of delay. I am not satisfied that Mr Ibrahim was misled by his advisor about the time limits for his general protections application or that his advisor was directed to make an application and failed to do so. I am not satisfied that Mr Ibrahim was prevented from making his application on time due to illness or other incapacity. I am not satisfied that moving house prevented the application from being made. It may have created some difficulties in the early part of the period but given that the move occurred on 23 August 2016 it does not explain the delay until 13 October 2016. I am not satisfied that there is any reasonable explanation for the delay between 23 September when his unfair dismissal application was dismissed and 13 October 2016 when he made his general protections application.

[5] I am not satisfied that there is any reason for the whole of the period of the delay which would support the finding of exceptional circumstance.

Action taken to dispute the dismissal

[6] Mr Ibrahim did challenge the dismissal at the time it occurred. He also made an unfair dismissal application. This is a factor which supports a finding of exceptional circumstance but it is not a strong factor as little else was done to dispute the dismissal in the relatively long period of delay.

Prejudice

[7] Although the period of delay is significant, there is no prejudice to the employer.

Merits

[8] Mr Ibrahim claims that the dismissal was in part due to him making complaints about his pay. The employer says that the dismissal was due to performance concerns. I have not heard the evidence. On the basis of the material before me I consider that the merits are a neutral factor.

Fairness with others in a similar position

[9] Neither party raised any issues in respect to this matter and I am satisfied that it is a neutral factor in this case.

Conclusion

[10] Considering all of the factors in Section 366 leads me to conclude that there are no exceptional circumstances which justify an extension of time in this case. The application is therefore dismissed. An order is issued separately.

COMMISSIONER

Appearances:

Mr T Ibrahim represented himself.

Mr F Bellomo appeared for the Respondent.

Hearing details:

2017

Melbourne by telephone

January 24

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