Qaisar Ahmad v BGIS Pty Ltd
[2024] FWC 3054
•5 NOVEMBER 2024
| [2024] FWC 3054 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Qaisar Ahmad
v
BGIS Pty Ltd
(U2024/10656)
| COMMISSIONER CRAWFORD | SYDNEY, 5 NOVEMBER 2024 |
Unfair dismissal application filed out of time – no exceptional circumstances – application dismissed.
Background
Qaisar Ahmad (Mr Ahmad) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he has been unfairly dismissed by BGIS Pty Ltd (BGIS).
BGIS provides facility management services. Mr Ahmad commenced full-time employment with BGIS as an Account Manager on 17 July 2023.
Mr Ahmad was dismissed by BGIS effective 24 May 2024 due to ongoing performance and conduct concerns.
Mr Ahmad filed a Form F2 unfair dismissal application on 10 September 2024.
On 2 October 2024, BGIS filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mr Ahmad’s application was not filed within 21 days of the dismissal taking effect on 24 May 2024, and argued that an extension of time should not be granted. BGIS also raised a jurisdictional objection on the basis that Mr Ahmad was not a person protected from unfair dismissal because his earnings exceeded the high-income threshold of $167,500 and Mr Ahmad’s employment with BGIS was not covered by a modern award or enterprise agreement.
I issued directions for the filing of material and listed a determinative conference/hearing regarding whether an extension of time should be granted for 29 October 2024 via video.
Mr Ahmad represented himself at the determinative conference/hearing on 29 October 2024. Kate Hemingway (Head of People & Culture Business Partnering) and Dana Comben (Human Resources Business Partner) represented BGIS.
At the start of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference rather than a hearing given Mr Ahmad was self-represented. The parties agreed to this course of action. I decided to conduct a determinative conference.
Material filed
Mr Ahmad
Mr Ahmad filed a mixture of evidence and submissions in support of his request for an extension of time for the filing of his unfair dismissal application. The material filed by Mr Ahmad was:
· Form F2 unfair dismissal application. This contains evidence from Mr Ahmad about his dismissal and why he missed the 21-day filing period. I marked the application form Exhibit A1.
· Mr Ahmad’s termination letter dated 24 May 2024. I marked the termination letter Exhibit A2.
· A Performance Improvement Plan issued to Mr Ahmad on 16 April 2024. I marked this document Exhibit A3.
· An email from Mr Ahmad to the Commission dated 15 October 2024. The email contains evidence from Mr Ahmad regarding why he missed the 21-day filing period. I marked the email Exhibit A4.
Mr Ahmad also confirmed the accuracy of an employment contract that BGIS had filed with the Commission while under an affirmation. I marked Mr Ahmad’s contract dated 6 July 2023 as Exhibit A5.
BGIS did not oppose any of the material filed by Mr Ahmad being marked as evidence.
Mr Ahmad was cross-examined during the determinative conference on 29 October 2024 and answered some questions from me.
Mr Ahmad gave evidence that he travelled to Saudi Arabia on a holy journey from 4 June 2024 to 24 June 2024 and did not have any internet or computer access during that period. Mr Ahmad stated he was still in shock about his dismissal when he returned from Saudia Arabia and that these emotions had exacerbated his diabetes. Mr Ahmad stated that he knew he had missed the 21-day filing period by the time he returned from Saudia Arabia and did not consider the date that the application is filed to be relevant once the 21-day period is missed. Mr Ahmad stated he has unsuccessfully applied for around 500 jobs since being dismissed by BGIS.
Mr Ahmad was adamant during his evidence that the performance issues raised by BGIS are without substance and that a proper process was not followed by BGIS in relation to his dismissal.
Mr Ahmad made oral closing submissions at the end of the determinative conference.
BGIS
BGIS relied on its Form F3 employer response and an email containing submissions dated 21 October 2024. Ms Hemingway made oral submissions at the end of the determinative conference.
Extension of time
Section 394(2) of the FW Act provides that an unfair dismissal application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
Given the dismissal date of 24 May 2024, the 21-day filing period ended on 14 June 2024. Mr Ahmad’s application was filed 88 days late on 10 September 2024. As a result, Mr Ahmad needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.
Was the application made within such further period as the Commission allows?
Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether Mr Ahmad first became aware of the dismissal after it had taken effect; and
(c) any action taken by Mr Ahmad to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between Mr Ahmad and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
Consideration
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 14 June 2024. The delay is the period commencing immediately after that time until 10 September 2024, although circumstances arising prior to the filing deadline may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
Mr Ahmad does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Ahmad has not provided any reason for any part of the delay.[5]
The reasons identified by Mr Ahmad for the delay in filing were the following:
1.Mr Ahmad’s holy trip to Saudi Arabia from 4 June 2024 to 24 June 2024.
2.The shock, distress, and hardship associated with the dismissal and an exacerbation of symptoms from diabetes.
3.Having an understanding that once the 21-day filing period is missed, the length of the delay in filing does not make any difference.
I accept Mr Ahmad’s holy trip to Saudi Arabia provides a satisfactory explanation for why he could not file an unfair dismissal application during the period of 4 June 2024 to 24 June 2024. However, the travel does not explain why Mr Ahmad could not file an unfair dismissal application between his dismissal on 24 May 2024 and his departure on 4 June 2024. The travel also does not explain why Mr Ahmad did not file an application from 24 June 2024 to 10 September 2024. I consider Mr Ahmad’s trip to Saudia Arabia only provides a satisfactory explanation for a brief part of the delay.
In relation to Mr Ahmad’s second explanation, the stress or distress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[6]
It is well-established that evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[7]
Mr Ahmad has not provided any medical evidence to establish that physical or mental illness prevented him from filing an unfair dismissal application from 24 May 2024 to 4 June 2024 or from 24 June 2024 to 10 September 2024. Further, there is no evidence of what changed around 10 September 2024 to enable Mr Ahmad to prepare an unfair dismissal application.
While I accept this has been a very difficult period for Mr Ahmad, I do not consider Mr Ahmad has provided evidence to establish that any specific hardship or misfortune prevented him from filing an unfair dismissal application until 10 September 2024. I also note Mr Ahmad gave evidence he has been able to submit around 500 job applications since his dismissal on 24 May 2024. It is unclear why Mr Ahmad was able to submit such a substantial amount of job applications after his dismissal but was not able to complete an unfair dismissal application until 10 September 2024.
I cannot conclude on the evidence that a physical or mental illness, hardship, or misfortune, provides a satisfactory explanation for the delay in the filing of Mr Ahmad’s application.
In relation to Mr Ahmad’s third explanation, while I accept Mr Ahmad understood it did not matter how long he waited to file an unfair dismissal application because he had already missed the 21-day period, that understanding was incorrect. By waiting until 10 September 2024 to file his application, Mr Ahmad has necessarily lengthened the period of delay that he needs to provide an explanation for. It is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[8]
I do not consider any of the three explanations provided by Mr Ahmad constitutes a satisfactory reason for the lengthy delay in the filing of his unfair dismissal application. I also do not consider the explanations provide a satisfactory reason for the delay when considered collectively.
I consider this factor weighs strongly against a finding of exceptional circumstances and the granting an extension of time.
Did Mr Ahmad first become aware of the dismissal after it had taken effect?
Mr Ahmad accepted he was aware that his employment had ended on 24 May 2024. I consider this to be a neutral factor.
What action was taken by Mr Ahmad to dispute the dismissal?
There is no evidence Mr Ahmad took any action to dispute his dismissal prior to filing an unfair dismissal application on 10 September 2024. I consider this to be a neutral factor.
What is the prejudice to the employer (including prejudice caused by the delay)?
BGIS submitted it will be prejudiced if an extension of time is granted because Mr Ahmad will have the benefit of a longer period to gather evidence in support of his case. I do not consider BGIS has established it will suffer any specific prejudice if an extension is granted. I consider prejudice to be a neutral factor.
What are the merits of the application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[9]
I accept Mr Ahmad feels aggrieved about his dismissal and strongly contests that there were issues with his performance. Ordinarily, I would treat the merits as a neutral factor because the dispute about whether there were issues with Mr Ahmad’s performance cannot be resolved at this early stage.
However, in this case, it appears highly likely that Mr Ahmad was not eligible to make an unfair dismissal application because he was not a person protected from unfair dismissal for the purposes of s.382 of the FW Act. Mr Ahmad’s annual salary at the time of his dismissal was $170,000 plus superannuation. The high-income threshold at the time of Mr Ahmad’s dismissal on 24 May 2024 was $167,500. BGIS submitted that Mr Ahmad’s employment was not covered by a modern award or enterprise agreement. Mr Ahmad did not argue that was incorrect. In the circumstances, it appears Mr Ahmad’s application is likely to be dismissed on jurisdictional grounds because he was not a person protected from unfair dismissal. If that is correct, the Commission would not have jurisdiction to determine Mr Ahmad’s arguments about the merits of his dismissal.
I find the merits of the case weigh against a finding of exceptional circumstances and the granting of an extension of time.
Fairness as between Mr Ahmad and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[10] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[11]
Neither party advanced a persuasive argument regarding this factor. I consider this to be a neutral factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[12] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.[14]
Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
I have not found that any of the relevant factors weigh in favour of a finding of exceptional circumstances and the granting of an extension of time. I have found that Mr Ahmad does not have a satisfactory explanation for the lengthy delay in filing his application and that the merits of the application weigh against a finding of exceptional circumstances and the granting of an extension of time.
The FW Act requires unfair dismissal applications to be filed within 21 days and it is a “high hurdle” for an extension to be granted. I am not satisfied that Mr Ahmad has cleared the high hurdle in this case.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances
Mr Ahmad representing himself.
Ms Hemingway and Ms Comben for BGIS.
Determinative conference:
2024.
Sydney (by video via Microsoft Teams).
29 October.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’).
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis, [39].
[5] Ibid, [40].
[6] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[7] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, [14].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].
[11] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] See ibid.
[14] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
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