Mubarak Noor-Mohamed v Islamic College of Brisbane Ltd

[2015] FWC 7967

[2015] FWC 7967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mubarak Noor-Mohamed
v
Islamic College of Brisbane Ltd
(C2015/2606)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 19 NOVEMBER 2015

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

[1] Dr Mubarak Noor-Mohamed (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 20 April 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by the Islamic College of Brisbane Ltd (ICB - the Respondent) on 31 March 2015 in contravention of the general protections provisions in the Act.

[2] The ICB in its Form 8A – Employer Response to General Protections Application raised a jurisdictional objection, contending that the application had been lodged some 40 days outside the 21 day statutory timeframe for lodgement specified in s.366(1) of the Act. ICB contends that Dr Noor-Mohamed’s dismissal took effect on 18 February 2015 rather than 31 March 2015 as submitted by Dr Noor-Mohamed.

[3] A conference was convened by the Commission on 30 April 2015 but was unsuccessful in resolving the dispute.

[4] The Commission subsequently issued Directions on 20 May 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the effective date of dismissal and extension of time issues.

[5] The Directions invited both parties to indicate if they wished to be heard on the issues and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. Neither party requested to be heard.

[6] For the reasons set out below I have concluded that the effective date of Dr Noor-Mohamed’s dismissal was 31 March 2015 and that his application was therefore lodged within the 21 day statutory timeframe. Accordingly, ICB’s jurisdictional objection is dismissed. Given that a conference has already been convened in accordance with s.368 of the Act in respect of the dispute but was unsuccessful, I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. A certificate will therefore be separately issued in accordance with s.368(3) of the Act.

Background

[7] Dr Noor-Mohamed commenced employment with ICB in January 1998 as a teacher and in July 2005 was appointed Principal of ICB. In August 2014 the Queensland Non-State Schools Accreditation Board (Accreditation Board) appointed Oakton Pty Ltd to carry out a financial audit of the ICB. The audit identified a number of issues which prompted the Accreditation Board to issue a “Show Cause” Notice to ICB because the Accreditation Board considered that grounds existed to cancel the accreditation of ICB.

[8] As a result, ICB lost trust and confidence in Dr Noor-Mohamed and by letter dated 18 February 2015 terminated Dr Noor-Mohamed’s employment. The letter stated, among other things, that:

“Your notice period will be six weeks ending on 31 March 2015. You will not be required to work out the notice period and will therefore receive a payment in lieu of notice.

The Islamic College of Brisbane will satisfy all of your entitlements in respect to your accrued entitlements and outstanding remuneration, including superannuation, up to and including your last day of employment.” 1

[9] Attached to the letter was a table setting out the calculations underpinning Dr Noor-Mohamed’s final payment. The table included the following pay details:

“EMPLOYEE NAME: MUBARAK ALI NOOR MUHAMAD
COMMENCEMENT DATE: 2/02/1998
FINAL WORK DAY: 31/03/2015
…
TOTAL GROSS PAY ON FINAL PAY 18/2/15…” (Underlining added)

[10] An unsigned copy of the termination letter was provided to Dr Noor-Mohamed by Mr Hafez Kassem, the Acting Chairman of the ICB, at an ICB Board meeting on 17 February 2015. 2

[11] Dr Noor-Mohamed deposed that at the Board meeting:

“I was asked how long it would take for me to hand over the running of the College to Dr Ray Barrett, who had been asked to come over to the College and take charge as interim Principal. It was initially suggested that it would take two weeks for me to hand over to the interim Principal. I indicated that it would take at least three weeks. It was agreed that I would continue to perform duties as part of that hand over.” 3 (Underlining added)

[12] Dr Ray Barrett commenced as the interim Principal on 18 February 2015. 4 Dr Barrett deposed that from 18 February 2015 until 3 March 2015, Dr Noor-Mohamed continued to occupy the Principal’s office and reserved car park; that he shadowed Dr Noor-Mohamed in the duties as Principal; and that Dr Noor-Mohamed was available on an ‘ad-hoc’ basis to answer any questions that arose5.

[13] A number of things occurred during the notice period, including the following:

• On 19 February 2015, Mr Kassem, in his capacity as President of the Australian Federation of Islamic Councils Inc. (AFIC), wrote to Dr Noor-Mohamed asking him to make several payments regarding the ICB’s insurance cover 6.

On 26 February 2015 Dr Noor-Mohamed signed as Principal contracts of employment for three new ICB employees 7.

On 2 March 2015 AFIC wrote to Dr Noor-Mohamed inviting him to “forward a summary on your school activities (with pictures) over the last 12 months which we will include in our Annual Report to be presented at the Congress, Insha’Allah.” Dr Noor-Mohamed was asked to provide the summary by 20 March 2015. 8

On 3 March 2015 Dr Noor-Mohamed signed as Principal a contract for minor works for ICB 9.

Also on 3 March 2015, Dr Noor-Mohamed wrote to Mr Kassem and fellow Directors of ICB responding to the termination letter. Among other things, Dr Noor-Mohamed’s letter states:

“I note that your [termination] letter does not offer any opportunity to address your concerns or to give account of my actions. Despite this I am taking the opportunity to do so in the hope that you will still see that the decision you have taken is not appropriate and that there is scope for a continuing professional relationship, particularly since the termination date is technically not effective until 31 March 2015.” 10 (Underlining added)

No response to Dr Noor-Mohamed’s letter was submitted to the Commission.

• On 20 March 2015 Dr Noor-Mohamed submitted the abovementioned summary of school activities as requested by AFIC 11.

[14] On 13 April 2015, Dr Noor-Mohamed was paid additional superannuation to cover the period up to 31 March 2015 12.

[15] As previously noted, Dr Noor-Mohamed’s general protections application was lodged with the Commission on 20 April 2015.

Dr Noor-Mohamed’s case

[16] Dr Noor-Mohamed submitted that his employment ceased on 31 March 2015. In support of that submission Dr Noor-Mohamed pointed to the termination letter which states, inter alia, that “Your notice period will be six weeks ending on 31 March 2015” and “Final Work Day: 31/03/15”. Against that background, Dr Noor-Mohamed contended that it is ‘manifestly clear’ that the employment relationship was to come to an end on 31 March 2015 13.

[17] Dr Noor-Mohamed further submitted that the handover period which continued until at least 3 March 2015 is evidence that the employment relationship did not cease on 18 February 2015. Dr Noor-Mohamed submitted that this handover period was proposed by ICB, and that the documentary evidence shows that Dr Noor-Mohamed was asked to perform ICB work during the notice period by Mr Kassem and AFIC 14. Dr Noor-Mohamed rejected ICB’s contention that the handover period was voluntary15.

[18] Dr Noor-Mohamed, relying on Chief Justice Wilcox’s judgment in Siagian v Sanel Pty Ltd (Siagian) 16, also contended that the documentary evidence does not support “the assertion of a ‘clear or unambiguous statement’ that his employment was to come to an end on 18 February 2015.” Therefore, Dr Noor-Mohamed submitted, his dismissal was not effective on that date17.

[19] Further, Dr Noor-Mohamed rejected ICB’s alternative submission that the date of dismissal was 3 March 2015. Relying on Thickbroom v Newcastle Wallsend Coal Company Pty Ltd 18, Dr Noor-Mohamed contended that in the absence of a clear identification of an end date by the employer, it was illogical to argue that his employment came to an end on some unspecified date and in the absence of his agreement. Dr Noor-Mohamed contended that this was not possible in a legal sense.”19

[20] Dr Noor-Mohamed concluded by submitting that, as neither 18 February 2015 nor 3 March 2015 were the effective dates of his dismissal, the only possible alternative is that his employment came to an end on 31 March 2015. This he argued is consistent with the pay advice slip provided by ICB 20.

ICB’s case

[21] ICB submits that the date on which Dr Noor-Mohamed’s employment ceased is 18 February 2015 or, in the alternative, 3 March 2015.

[22] ICB further submitted that the termination letter is clear that the employment relationship would cease on 18 February 2015, drawing attention to the fact that Dr Noor-Mohamed was not required to work out the notice period, and would receive a payment in lieu of notice. ICB relied on Deputy President Sams’ decision in Micallef v Garfield Child Care Pty Ltd 21 to support this interpretation of the termination letter.22

[23] ICB conceded that Dr Noor-Mohamed was involved in a handover until 3 March 2015, but submitted that his participation was voluntary and therefore had no effect on the effective date of termination 23.

[24] ICB submitted in the alternative that the handover period represented a two week extension of the effective termination date and that as such Dr Noor-Mohamed’s termination became effective on 3 March 2015 24. Relying on this alternative date of dismissal, ICB argued that Dr Noor-Mohamed’s application was still lodged outside of the statutory timeframe25.

When did Dr Noor-Mohamed’s employment cease?

[25] In order to determine whether Dr Noor-Mohamed’s application was made within the statutory timeframe specified in s.366 of the Act it is first necessary to determine when Dr Noor-Mohamed’s employment ceased.

[26] As noted by the Full Bench in Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital 26:

“[35] ... Except in relation to an extension of time application, there is nothing in the Subdivision [Part 3-1, Division 8, Subdivision A of the Act] which contemplates the receipt of evidence by the Commission or the making of a determination requiring findings of fact.”

[27] As noted above, ICB submitted that Dr Noor-Mohamed’s employment ceased on 18 February 2015, i.e. the date of the termination letter, or alternatively on 3 March 2013, i.e. the date on which the handover period ended. Conversely, Dr Noor-Mohamed submitted that his employment ceased on 31 March 2015 when his notice period as per the termination letter ended.

[28] In Siagian Chief Justice Wilcox observed as follows:

“It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately.” 27 (Underlining added)

[29] An analysis of the material before the Commission indicates that:

• Dr Noor-Mohamed continued to occupy the Principal’s office and car park at ICB until 3 March 2015 – this was conceded by ICB;



• during the notice period Dr Noor-Mohamed signed as Principal contracts of employment for three new ICB employees and a contract for minor works; and



• on 20 March 2015 Dr Noor-Mohamed provided at the request of AFIC a summary of school activities on behalf of ICB.

[30] The above analysis clearly indicates that, despite being handed a termination letter on 17 February 2015, Dr Noor-Mohamed continued to perform work on behalf of ICB after 18 February 2015, with Dr Noor-Mohamed submitting his last piece of work on behalf of ICB on 20 March 2015. While the letter of termination together with the payment of Dr Noor-Mohamed’s outstanding entitlements suggests that ICB intended for the termination to take effect on 18 February 2015, the material before the Commission paints a very different picture. This in my view meets the test in Siagian “of evidence of a contrary intention” and supports a finding that the effective date of termination of Dr Noor-Mohamed’s employment was at the expiry of the notice period specified in the termination letter, i.e. 31 March 2015.

[31] ICB also contended that Dr Noor-Mohamed voluntarily undertook the handover after he was given the termination letter. However ICB provided no evidence to support that contention. To the contrary, Dr Noor-Mohamed deposed in his witness statement that the handover was proposed by Mr Kassem on behalf of ICB with a period of three weeks agreed. Further, the fact that Dr Noor-Mohamed signed a number of contracts, including employment contracts, is incongruous with the nature of a handover period. No explanation was provided by ICB as to how the signing of these contracts by Dr Noor-Mohamed was consistent with him no longer being Principal, despite him signing those contracts as Principal. Again, this does not support a finding that the effective date of termination was 18 February 2015 as specified in the termination letter.

[32] As to ICB’s alternative submission that the effective date of termination is 3 March 2015, this overlooks the material provided by Dr Noor-Mohamed to AFIC on behalf of ICB on 20 March 2015. This does not support a finding that 3 March 2015 is the effective date of termination.

Conclusion

[33] For all the above reasons, I am satisfied that the effective date of termination of Dr Noor-Mohamed’s employment was 31 March 2015, i.e. at the expiry of the notice period specified in the termination letter.

[34] As previously noted, Dr Noor-Mohamed’s general protections application was lodged with the Commission on 20 April 2015 which is one day within the 21 day statutory timeframe. Accordingly, ICB’s jurisdictional objection is dismissed.

[35] Given that a conference has already been convened in respect of the dispute in accordance with s.368 of the Act in respect of the dispute but was unsuccessful, I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. A certificate will therefore be separately issued in accordance with s.368(3) of the Act.

 1   Form F8 – General Protections Application Involving Dismissal at Attachment 1

 2   Witness statement of Dr Noor-Mohamed at paragraphs 9-10

 3   Ibid at paragraph 12

 4   Witness statement of Dr Ray Barrett at paragraph 3

 5   Ibid

 6   Witness statement of Dr Noor-Mohamed at Attachment D

 7   Ibid at Attachment E

 8   Ibid at Attachment G

 9   Ibid at Attachment F

 10   Form F8 at Attachment 2

 11   Submissions in Reply on behalf of Dr Mubarak Noor-Mohamed at paragraph 8

 12   Witness statement of Dr Noor-Mohamed

 13   Outline of Submissions on behalf of Dr Mubarak Noor-Mohamed at paragraph 8

 14   Ibid at paragraphs 9-11

 15   Submissions in Reply on behalf of Dr Mubarak Noor-Mohamed at paragraphs 6-8

 16 (1994) 54 IR 185

 17   Outline of Submissions on behalf of Dr Mubarak Noor-Mohamed at paragraphs 12-22

 18 (1998) 83 IR 193

 19   Submissions in Reply on behalf of Dr Mubarak Noor-Mohamed at paragraphs 15-18

 20   Ibid at paragraph 19

 21   [2013] FWC 5457

 22   Outline of Submissions Jurisdiction on behalf of Islamic College of Brisbane Limited at paragraphs 6-9

 23   Ibid at paragraph 10

 24   Ibid at paragraph 11

 25   Ibid at paragraph 12

 26 (2013) 238 IR 42

 27 (1994) 54 IR 185 at 206

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