Qaisar Ahmad v BGIS Pty Ltd - [2024] FWC 3054

[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…

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: [2024] FWC 3054
Decision Date: 5 NOVEMBER 2024

CaseChat Overview and Summary

Qaisar Ahmad has filed an unfair dismissal application with the Fair Work Commission (FWC) against BGIS Pty Ltd, alleging wrongful dismissal from his position as an Account Manager. BGIS has contested the application on the basis that it was not filed within the statutory 21-day period and that Mr Ahmad is not a person protected from unfair dismissal under the Fair Work Act 2009. The key legal issues before the FWC were whether the application was made within the requisite 21-day period, and if not, whether exceptional circumstances existed to warrant an extension of time for filing the application.

The FWC found that the application was made 88 days late, well beyond the statutory 21-day period. The FWC considered the various factors relevant to determining whether exceptional circumstances existed, including the reason for the delay, any actions taken by Mr Ahmad to dispute the dismissal, the merits of the application, and prejudice to the employer. The FWC found that Mr Ahmad did not provide a satisfactory explanation for the lengthy delay, that the merits of the application weighed against granting an extension of time, and that BGIS had not demonstrated any prejudice if an extension were granted. The FWC ultimately concluded that Mr Ahmad had not satisfied the high threshold for demonstrating exceptional circumstances warranting an extension of time.

In conclusion, the FWC dismissed Mr Ahmad's unfair dismissal application on the basis that it was not made within the requisite 21-day period and that exceptional circumstances did not exist to warrant an extension of time. The application was dismissed and no remedy was granted to Mr Ahmad.

Orders