Sajah Ibrahim v Compass Group B&I Hospitality Services Pty Ltd
[2024] FWC 3043
•4 NOVEMBER 2024
| [2024] FWC 3043 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sajah Ibrahim
v
Compass Group B&I Hospitality Services Pty Ltd
(U2024/10392)
| COMMISSIONER CRAWFORD | SYDNEY, 4 NOVEMBER 2024 |
Unfair dismissal application filed out of time – no exceptional circumstances – application dismissed.
Background
Sajah Ibrahim (Ms Ibrahim) 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 she has been unfairly dismissed by Compass Group B&I Hospitality Services Pty Ltd (Compass Group).
Compass Group provides food and support services to host clients under contractual arrangements. Ms Ibrahim commenced full-time employment with Compass Group on 16 July 2018 as a Supervisor – Food and Beverage performing work at a site operated by Google.
While the date the dismissal was communicated to Ms Ibrahim is disputed by the parties, it is uncontroversial that Compass Group issued a termination letter to Ms Ibrahim dated 11 April 2024. The termination letter states Ms Ibrahim had been absent from work since 16 June 2023 and that she failed to respond to correspondence from Compass Group dated 12 March 2024 requesting an update about when she would be returning to work.
Ms Ibrahim filed a Form F2 unfair dismissal application on 6 September 2024. Ms Ibrahim indicated that her application was not filed within 21 days of her dismissal taking effect but stated she did not receive the termination letter either by email or post on or around the date it was purportedly issued.
On 18 September 2024, Compass Group filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Ms Ibrahim’s application was not filed within 21 days of the dismissal taking effect on 11 April 2024 and argued that an extension of time should not be granted.
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.
Ms Ibrahim represented herself at the determinative conference/hearing. Andrew Chamberlain (National Workplace Relations Manager) and Hayley Masters (Employee Relations Advisor) represented Compass Group.
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 Ms Ibrahim was self-represented. The parties agreed to this course of action. I decided to conduct a determinative conference.
Material filed
Ms Ibrahim
Ms Ibrahim’s Form F2 application contains evidence about her dismissal and the reasons that Ms Ibrahim missed the 21-day filing period. I marked the application form Exhibit A1.
Ms Ibrahim also relied on the following material in support of her request for an extension of time to file her unfair dismissal application:
· A letter from Tim Sheather (Manager – People Operations) to Ms Ibrahim dated 12 March 2024. The letter identifies that Ms Ibrahim has been absent from work since 16 June 2023, that her workers’ compensation claim was declined by GIO on 18 September 2023 and that this decision was subsequently confirmed following an independent medical examination on 15 October 2023. The letter states Ms Ibrahim has provided a clearance for pre-injury duties but has not returned to work. The letter requests that Ms Ibrahim returns to work and that she nominates a return-to-work date by 29 March 2024. I marked the return-to-work letter Exhibit A2.
· A termination letter from Mr Sheather to Ms Ibrahim dated 11 April 2024. The letter states Ms Ibrahim did not respond to Compass Group’s letter dated 12 March 2024 and that Compass Group is not prepared to continue keeping Ms Ibrahim’s position open. The letter states Ms Ibrahim’s employment is terminated with immediate effect. I marked the termination letter Exhibit A3.
· Emails exchanged between Ms Ibrahim and Mr Sheather in June 2024. On 4 June 2024, Ms Ibrahim sent an email to Mr Sheather requesting that she be reinstated to her previous position with Compass Group. Despite this request, Ms Ibrahim also indicates she has not been certified fit to resume working for Compass Group. Ms Ibrahim states Compass Group failed to send the return-to-work letter to her email address and to her new home address. On 5 June 2024, Ms Ibrahim sent a follow-up email to Mr Sheather. On 11 June 2024, Mr Sheather responded to Ms Ibrahim’s emails. Mr Sheather states the letters were sent to the address in Compass Group’s Pay Global Service and that Ms Ibrahim should have updated her details in that system if they had changed. Mr Sheather reiterates the content of the termination letter and refers to Ms Ibrahim commencing in a new role with a retail cosmetic business. Mr Sheather acknowledges Ms Ibrahim was not certified fit to resume duties with Compass Group and indicates Ms Ibrahim has ceased psychological treatment. Mr Sheather states leaving Ms Ibrahim’s role open for such a lengthy period of time was causing operational difficulties. Mr Sheather wishes Ms Ibrahim all the best with her new role.
During the determinative conference Ms Ibrahim confirmed that at all material times her email address was, and currently remains, the same email that is identified on the return-to-work and termination letters issued by Compass Group in March and April 2024.
I marked the emails Exhibit A4.
· A certificate of capacity from Dr Grant Yuan dated 7 August 2023. The certificate states Ms Ibrahim is fit to work from home for five hours on two non-consecutive days per week for the period of 8 August 2023 to 14 August 2023. I marked the certificate Exhibit A5.
· A certificate of capacity from Dr Yuan dated 14 August 2023. The certificate states Ms Ibrahim is fit to work from home for five hours on two non-consecutive days per week for the period of 15 August 2023 to 28 August 2023. I marked the certificate Exhibit A6.
· A certificate of capacity from Dr Yuan dated 26 February 2024. The certificate states Ms Ibrahim is fit to work 7.6 hours per day for five days per week “in a new job” and that Ms Ibrahim is “not to work with Compass Group.” The certificate covers the period of 27 February 2024 to 25 March 2024. I marked the certificate Exhibit A7.
· An email sent by Ms Ibrahim to Ama Qian, Kimberley Becker, and GIO representatives at 12:37pm on 25 March 2024. Ms Ibrahim immediately received an automatic response from Ama Qian stating they have left the business. I marked the emails Exhibit A8.
· A pay slip issued by Compass Group to Ms Ibrahim dated 19 April 2024. The pay slip confirms the payment of Ms Ibrahim’s accrued annual leave. I marked the pay slip Exhibit A9.
· An email from Laura Calver to Ms Ibrahim dated 19 April 2024. Ms Calver’s email has a document attached labelled “Compass Group Final Payslip.” Ms Ibrahim replied to this email on 23 May 2024 and stated:
“I would like to confirm if this is a notice of termination? This pay slip is not clear and does not set out any specific detail.
Please advise clearly if I have been terminated and the date of termination in a letter.
I look forward to hearing from you.”
I marked the emails Exhibit A10.
Compass Group did not object to the admission of any of these documents as evidence.
Ms Ibrahim was cross-examined during the determinative conference and answered some questions from me while under an affirmation.
Ms Ibrahim maintained that she did not receive the return-to-work letter or termination letter until 24 May 2024. Ms Ibrahim explained that she called a Compass Group human resources employee on that date and was told her employment had been terminated. Both letters were successfully emailed to Ms Ibrahim shortly after the phone call. Ms Ibrahim accepted all relevant communications were sent and received from the same email account but was adamant she did not receive emails to that account with the return-to-work letter or termination letter attached until 24 May 2024. Ms Ibrahim explained that she had conducted searches of junk and spam folders and had not found emails sent by Compass Group in March and April 2024 with the relevant letters attached.
Ms Ibrahim provided the following reasons for the delay in filing her unfair dismissal application:
1.Ms Ibrahim was not aware of the dismissal until 24 May 2024.
2.Ms Ibrahim was hopeful that Mr Sheather would agree to her reinstatement until she received his email on 11 June 2024.
3.Ms Ibrahim spoke to lawyers after Mr Sheather’s email on 11 June 2024 but was not advised about the 21-day filing period.
4.Ms Ibrahim was not aware of the 21-day filing period.
With regard to her substantive unfair dismissal application, Ms Ibrahim explained that she intends to argue it was premature for Compass Group to terminate her employment and that she was in the process of recovering so she could return to her role and have a positive future with Compass Group.
Compass Group
In addition to its Form F3 response, Compass Group relied on an outline of submissions dated 16 October 2024 which explained its grounds of opposition to an extension of time being granted to Ms Ibrahim.
Mr Chamberlain also 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.
When did the dismissal take effect?
In Mohammed Ayub v NSW Trains [2016] FWCFB 5500 the Full Bench stated the following regarding when a dismissal communicated by post will take effect:
“We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery.[1] The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.”[2]
The Full Bench then stated the following regarding when a dismissal communicated by email will take effect:
“In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”[3]
I consider the evidence in this case establishes that Ms Ibrahim did not receive the termination letter by post because it was sent to an address in Silverwater. The certificates of capacity provided by Ms Ibrahim confirm she had moved to Dulwich Hill by 7 August 2023. I accept Compass Group relied on the Silverwater address in its internal records and that Ms Ibrahim did not update her address using its payroll system. However, there is no evidence that establishes Ms Ibrahim was aware of this requirement. In all the circumstances, I do not consider Ms Ibrahim had a reasonable opportunity to read the termination letter sent by post on or around 11 April 2024.
During the determinative conference Ms Ibrahim repeatedly denied receiving an email from Compass Group with the termination letter attached on or around 11 April 2024. I consider Ms Ibrahim presented as a credible witness during the determinative conference. Ms Ibrahim’s email to Ms Calver on 23 May 2024 is also consistent with Ms Ibrahim not having received the termination letter, as she expressly requests a termination letter in the email.
It is clear Compass Group believes that it sent the return-to-work letter and termination letter to the correct email address which Ms Ibrahim had been using for all the relevant communications. However, Compass Group has not provided documentary evidence from email accounts to show that the termination letter was sent and received by Ms Ibrahim’s nominated email account on around 11 April 2024.
In the absence of any documentation which confirms Compass Group sent emails to Ms Ibrahim’s nominated email account on or around 11 April 2024, I accept Ms Ibrahim’s evidence. I find that Ms Ibrahim’s dismissal took effect when it was communicated to her on 24 May 2024.
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.”[4]
Given the dismissal date of 24 May 2024, the 21-day filing period ended on 14 June 2024. Ms Ibrahim’s application was filed 84 days late on 6 September 2024. As a result, Ms Ibrahim 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 Ms Ibrahim first became aware of the dismissal after it had taken effect; and
(c) any action taken by Ms Ibrahim 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 Ms Ibrahim and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[5]
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 6 September 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[6]
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.[7]
Ms Ibrahim 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 Ms Ibrahim has not provided any reason for any part of the delay.[8]
As identified above, while under an affirmation during the determinative conference Ms Ibrahim provided the following reasons for the delay in filing her unfair dismissal application:
1.Ms Ibrahim was not aware of the dismissal until 24 May 2024.
2.Ms Ibrahim was hopeful that Mr Sheather would agree to her reinstatement until she received his email on 11 June 2024.
3.Ms Ibrahim spoke to lawyers after Mr Sheather’s email on 11 June 2024 but was not advised about the 21-day filing period.
4.Ms Ibrahim was not aware of the 21-day filing period.
I have accepted Ms Ibrahim’s evidence that she was not aware of the dismissal until 24 May 2024 and have found that was the date that her dismissal took effect. That means the first explanation is not a relevant explanation for the delay that occurred after 24 May 2024.
I will take Ms Ibrahim’s email to Mr Sheather into account when considering whether any action was taken to dispute the dismissal. However, I do not consider this action provides an adequate explanation for the delay in the filing of Ms Ibrahim’s unfair dismissal application. Ms Ibrahim could have taken this action while also filing an unfair dismissal application within the 21-day filing period. I also note the 21-day period had not lapsed when Ms Ibrahim received Mr Sheather’s response on 11 June 2024.
Ms Ibrahim’s third explanation alludes to potential representative error in that during the determinative conference she referred to seeking legal advice and not being informed about the 21-day filing period. However, despite finding Ms Ibrahim to be a reliable witness, I cannot rely solely on her oral evidence during the determinative conference to justify a finding of representative error. Evidence about when the communications occurred, which law firms were involved, and what advice was given, would be required.
In relation to Ms Ibrahim’s final explanation, it is well established that ignorance of the 21-day timeframe is not a satisfactory explanation for filing an application late.[9]
I do not consider any of the four explanations provided by Ms Ibrahim constitute a satisfactory reason for the lengthy delay in the filing of her 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 Ms Ibrahim first become aware of the dismissal after it had taken effect?
I have accepted Ms Ibrahim’s argument that her dismissal did not take effect on the date identified by Compass Group because of the uncertainty regarding whether she received the termination letter via email on around 11 April 2024. Ms Ibrahim was clearly aware of the dismissal from the date that I have found it took effect, which is 24 May 2024.
What action was taken by Ms Ibrahim to dispute the dismissal?
Ms Ibrahim has provided evidence that she disputed the dismissal via an email sent to Mr Sheather on 4 June 2024. I consider this factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time. However, I consider this factor weighs only marginally in Ms Ibrahim’s favour because it does not appear Ms Ibrahim took any further actions to dispute her dismissal, except filing the unfair dismissal application, after receiving Mr Sheather’s negative email response on 11 June 2024.
What is the prejudice to the employer (including prejudice caused by the delay)?
Compass Group did not submit it would suffer any particular prejudice if an extension of time 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).[10]
At this early stage, I consider it is highly likely that there was a valid reason for Ms Ibrahim’s dismissal due to her lengthy period of incapacity for work and the lack of evidence that she would be fit to resume work with Compass Group in the foreseeable future.
However, if Ms Ibrahim’s evidence about not receiving the return-to-work letter and the termination letter until 24 May 2024 withstands scrutiny during a merits hearing, she likely has some persuasive procedural fairness arguments.
Given these issues, I find that the merits of the application is a neutral factor.
Fairness as between Ms Ibrahim 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.”[11] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[12]
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.[13] 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.[14] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.[15]
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 found that Ms Ibrahim does not have a satisfactory explanation for the lengthy delay in filing her unfair dismissal application. While I have found Ms Ibrahim did take an action to dispute her dismissal, I do not consider that factor is sufficient to justify a finding of exceptional circumstances, given I have found the other factors to be neutral.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances
Ms Ibrahim representing herself.
Mr Chamberlain and Ms Masters for Compass Group.
Determinative conference:
2024.
Sydney (by video via Microsoft Teams).
29 October.
[1] Section 117(1) does not establish any such rule. It establishes a prohibition upon a notice of termination of employment being given with retrospective effect.
[2] Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [42].
[3] Ibid at [50].
[4] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553 at [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.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39] (“Stogiannidis”).
[6] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 at [12] (Watson VP and Smith DP).
[7] Stogiannidis at [39].
[8] Ibid at [40].
[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].
[10] Ibid at [36].
[11] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].
[12] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090 at [19].
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[14] See ibid.
[15] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
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