Shujaat Ali Qazi v Rail Corporation New South Wales
[2011] FWA 4090
•14 JULY 2011
Note: An appeal pursuant to s.604 (C2011/5424) was lodged against this decision.
[2011] FWA 4090 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
Shujaat Ali Qazi
v
Rail Corporation New South Wales
(U2011/4210)
COMMISSIONER ROBERTS | BRISBANE, 14 JULY 2011 |
Termination of employment - extension of time.
[1] This decision concerns an application lodged by Mr Qazi on 14 January 2011 for relief pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the WRAct) in respect of the alleged harsh, unjust or unreasonable termination of his employment by Rail Corporation New South Wales (RailCorp). An earlier application was lodged by Mr Qazi on 6 October 2010 pursuant to s.394 of the Fair Work Act 2009 (the FWAct). That application was struck out on 14 January 2011 by me after I determined that the termination of Mr Qazi’s employment had occurred on a date approximate to 6 June 2007 and that he had therefore filed an application under the incorrect Act. Mr Qazi then filed the current application on the same day as his previous application was struck out.
[2] Mr Qazi states in his current application that the termination of employment took effect on 18 September 2010, however I have already determined in earlier proceedings that the termination occurred on or about 6 June 2007 and the latter date is the one which I will use for the purposes of this decision. Accordingly, Mr Qazi’s application was filed some 1297 days outside the 21 day time limit prescribed by the WRAct and therefore requires me to consider whether to grant him an extension of time for filing. In the unusual circumstances in which Mr Qazi filed an earlier application under the FWAct on 6 October 2010, I will take into account the filing date of 6 October 2010 and base my decision in this matter on a delay of some 1197 days rather than the figure of 1297 days given above. An extension of time was opposed by RailCorp which also objected to conciliation before determination of the application to extend time. RailCorp also claims that there was no termination of employment at its initiative as Mr Qazi abandoned his employment by not returning from leave on 2 October 2005.
[3] Mr Qazi’s application first came on for hearing before me in Sydney on 1 April 2011. That hearing did not proceed due to the inability of the Tribunal to provide an interpreter. The hearing was then relisted for 4 May 2011 in Sydney. Mr Qazi was represented by Mr F Levy, solicitor, and was assisted by an Urdu interpreter. RailCorp was represented by its in-house solicitor, Mr R Morton. Mr Qazi gave sworn evidence with the assistance of the interpreter. An affidavit from Mr P Worboys, RailCorp’s Human Resources Business Partner, was entered into evidence. 1 Mr Worboys was not required for cross-examination.
Legislative Framework
[4] Subsections 643(14) and (15) of the Act provide:
“(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.
(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.”
[5] The following Note appears under subsection 643(15):
“Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
[6] Those principles were set out by Marshall J in Brodie-Hanns v MTV Publishing Ltd (‘Brodie-Hanns’) 2
"(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[7] In Cruz and Australia Post Corporation 3(Cruz), a Full Bench of this Commission said of Brodie-Hanns:
“Principle 4 is not a separate criterion: it is in the nature of a commentary on principle 3. Principle 1 should not be seen as a criterion to be assessed independently of the matters in principles 2, 3 5 and 6. Rather, principle 1 is a summary of how the discretion to extend time should be approached and specifies, as it were, an overarching test, namely that prima facie time should not be extended unless there is, having regard to all the circumstances of the case, ‘an acceptable explanation which makes it equitable to [extend time]’. Principles 2, 3, 5 and 6 identify factors that bear upon an assessment of whether a given explanation for delay is sufficiently adequate, in all the circumstances, makes it ‘equitable’ to extend time. In this context the word ‘equitable’ connotes fairness and is concerned with fairness as between the applicant and respondent - in the language of the WR Act, ‘a fair go all round’.” 4
Background
[8] Mr Qazi was first employed by the State Rail Authority New South Wales as an All Areas Relief Carriage Cleaner (Night Shift) from on or about 1 May 2003. His employment was subsequently vested to RailCorp on 1 January 2004. He last performed duty for the Respondent on or about 27 July 2005.
[9] In October 2004 Mr Qazi applied for eleven months leave without pay, to commence on 20 February 2005. The reason given by Mr Qazi for the leave application was ‘family court problem in Pakistan’. That application “was refused due to operational requirements”. 5 On 15 July 2005, the Applicant applied for a two month period of leave without pay to be taken from 1 August 2005 to 1 October 2005. That application was approved. The Applicant did not recommence duty on 2 October 2005 and, according to Mr Worboys, “his absence from the workplace after this date was unauthorised.” Mr Qazi contends that an earthquake, which occurred in Pakistan on 1 October 2005, destroyed his house and caused deaths amongst his family members. RailCorp contends that the earthquake did not take place until 8 October 2005.
[10] Mr Qazi maintains that he sent several registered and unregistered letters to RailCorp during the period October 2005 to April 2008 while he was in Pakistan but RailCorp says no correspondence was received from him. Mr Qazi said that he was unable to telephone RailCorp due to the effects of the earthquake. Mr Qazi returned to Australia in May 2010. He maintains that he approached RailCorp shortly after his return to Australia and was told that he was not on any job roster. He then allegedly approached his Union which negotiated RailCorp for some three to four months but then ceased assisting him. He was informed on 18 September 2010 that his employment had been terminated on 6 June 2007 as a result of his abandonment of that employment. He subsequently contacted the Legal Aid Office which provided him with the address of this Tribunal. He then filed his original application for relief on 6 October 2010.
Evidence
Mr Qazi
[11] It was Mr Qazi’s sworn evidence that he was in Pakistan on 1 October 2005 when an earthquake struck and that this earthquake had a severe effect on the lives of himself and his family members. It was followed by at least two other earthquakes during the ensuing week. He further says that the earthquakes prevented him from making contact by telephone with his employer to explain his inability to return to work as planned on 2 October 2005. According to the Applicant, he wrote to RailCorp by registered mail on 12 October 2005 explaining his circumstances. That letter was followed by another registered letter on 6 July 2006, another on 28 November 2007 and lastly on 6 April 2008. He also sent several letters by ordinary mail. Mr Qazi says that he never received a reply from RailCorp and accepts that he sent the alleged letters to an address which was not that of the Respondent.
[12] Mr Qazi maintains that he remained in Pakistan during the period October 2005 and May 2010 as a direct result of the earthquakes in October 2005 and that he made every reasonable effort to inform the Respondent of his situation. He further maintains that after he arrived back in Australia in May 2010, he made speedy attempts to re-establish his employment at RailCorp but was informed that he did not appear on any RailCorp job roster. He goes on to say that he contacted his Union which negotiated with RailCorp for several months seeking to have him resume his former employment. He further says that the Union later ceased assisting him and he discovered on 18 September 2010 that his employment had been terminated in June 2007. He then approached a Legal Aid Office which directed him to this Tribunal.
RailCorp
[13] Mr Worboys’ affidavit says, in summary:
- “In early 2007, RailCorp conducted a review of positions in its Presentation Services establishment. This review identified that there were a number of employees who had been absent without authority for extended periods of time. Mr Qazi was one of these employees. It was determined that Mr Qazi would be dealt with under the abandonment of employment procedures as contained at clause 21 of the Rail Corporation New South Wales, Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005 ...”
- “On 6 March 2007, RailCorp wrote to Mr Qazi at his last known address, being [omitted], NSW, putting Mr Qazi on notice that should he fail to contact RailCorp within 7 days and provide a satisfactory explanation for his unauthorised absence that RailCorp would regard him as having abandoned his employment.”
- “On 19 March 2007 and 3 April 2007, I personally attempted to contact Mr Qazi by calling Mr Qazi’s last known mobile phone number and landline phone number. Mr Qazi could not be contacted on these numbers.”
- “Having been unable to contact Mr Qazi, I made a recommendation to Fran Simons, Group General Manager, Human Resources, that the employment of Mr Qazi be terminated on the basis of abandonment of employment in accord with relevant provisions of the EBA 2005. This recommendation was made by way of internal memo and was approved by Ms Simons on 31 May 2007.”
- RailCorp again wrote to Mr Qazi at his last known address to inform him that his employment had been terminated with an effective date of 31 May 2007.
- His research on various relevant websites had shown that the only earthquake which occurred in Pakistan during 2005 was on 8 October 2005.
- RailCorp has no record of receiving any registered letters from Mr Qazi and had never occurred the address used by Mr Qazi in addressing his alleged correspondence.
- No application for leave has been received from Mr Qazi after 1 October 2005.
Submissions
The Applicant
[14] Mr Levy made oral submissions on behalf of Mr Qazi. He said that Mr Qazi never intended to abandon his employment and had the expectation that his correspondence addressed to RailCorp would be sufficient to explain his situation and to persuade the Respondent to keep his position open for him. It was further argued that Mr Qazi never received any correspondence from RailCorp concerning his employment and that RailCorp never attempted to contact him at an address it had for him in Pakistan.
[15] Mr Levy submits that Mr Qazi’s evidence should be accepted in full and this should lead me to grant the extension of time to date of filing to allow Mr Qazi to argue the merits of his substantive application.
RailCorp
[16] RailCorp filed written submissions which argue that the unauthorised absence of Mr Qazi from duty on and after 2 October 2005 together with RailCorp’s attempts to contact him during mid 2007 at his last known address and the failure of Mr Qazi to contact RailCorp in any way after he went to Pakistan, constitute an abandonment of employment by Mr Qazi.
[17] In relation to the extension of time issue, RailCorp argues that Mr Qazi was untruthful in his evidence concerning the earthquake(s) issue and that this alleged untruthfulness should call into question the veracity of the rest of his evidence relating to his attempts to contact RailCorp for a period of some five years.
Explanation of the delay
[18] In summary, it is Mr Qazi’s submission that the delay in filing was occasioned by his inability to contact RailCorp. According to Mr Qazi, he became aware of the failure of such attempts on or about 18 September 2010 and he then moved speedily to file an application for relief.
Action taken by the Applicant
[19] As noted above, Mr Qazi maintains that the delay in filing his application after May 2010 was the result of his reliance on his Union to negotiate directly with RailCorp on his behalf. RailCorp contends that there is no record of the Applicant contesting his termination of employment prior to the filing of his first application for relief on 6 October 2010.
Prejudice to the Respondent
[20] RailCorp claims prejudice because potential witnesses may now be unavailable and that it “will be put to the trouble and expense of defending this matter at substantive hearing in circumstances where the termination took place over 3 years ago and where RailCorp was entitled to consider the termination a long settled matter.”
Merits of the substantive application
[21] Mr Qazi claims that it was reasonable for him to expect the Respondent to keep his position open to him as he had kept RailCorp informed of the reason(s) for his absence from work. He claims that the termination of his employment in such circumstances was unfair.
[22] RailCorp submits that the termination of Mr Qazi’s employment was carried out in accord with the relevant provisions of the Rail Corporation New South Wales, Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005.
[23] RailCorp goes on to argue that:
“In circumstance where Mr Qazi failed to return from a period of approved leave on 1 October 2005, and where RailCorp had received no communication from Mr Qazi in relation to his absence from work through to 6 June 2007 (being the date of termination) it was neither harsh, unjust or unreasonable that RailCorp terminate Mr Qazi’s employment, and/or
Mr Qazi decided for reasons of his own, and prior to the earthquake on 8 October 2005, that he would not be resuming his employment with RailCorp on 2 October 2005. It was therefore neither harsh, unjust or unreasonable that RailCorp terminate his employment.” 6
Fairness between the Applicant and other persons in a like position
[24] RailCorp argues that the granting of an extension of time to Mr Qazi would be unfair to other persons who were required to bring their applications within the prescribed 21 days.
Conclusions and Finding
[25] As prescribed in Brodie-Hanns, I “must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.”
[26] The onus is on Mr Qazi to convince me that I should extend time. I am not satisfied that he has met that onus. Mr Qazi has, in my view, not made out even an arguable case for an extension of time.
[27] The Applicant was refused permission to take some eleven months leave without pay from February 2005. He was then approved to take two months leave without pay from 1 August 2005 to 1 October 2005. He was due to return to work on 2 October 2005. He claims that the earthquake on 1 October 2005 prevented his departure from Pakistan. Here I specifically prefer the affidavit of Mr Worboys that his researches showed that there was only one earthquake in Pakistan around that time and that it occurred on 8 October 2005. In my view, this buttresses RailCorp’s contention that Mr Qazi never intended to return to work on 2 October 2005.
[28] Mr Qazi’s claims to have sent a number of registered letters and unregistered letters to RailCorp is partly supported by the documents provided by him regarding proof of posting from Pakistan. What was in such letters will never be known but I accept RailCorp’s submission that no letter was ever received from Mr Qazi. In that regard I also note that Mr Qazi addressed any letters he might have sent to an address which has never been occupied by RailCorp or its predecessor. Even if I were to believe Mr Qazi in relation to his attempted correspondence with RailCorp, the last registered letter was allegedly sent in April 2008 and he did not return to Australia until May 2010. His alleged expectation that RailCorp would hold the job for him was unreasonable and even fanciful.
[29] I can find no fault with RailCorp’s attempts to contact Mr Qazi at his last known address and do not believe it was required to extend its search for him to Pakistan. I am satisfied that the affidavit of Mr Worbys is truthful as to the events it recounts. I reject the evidence of Mr Qazi as being inherently implausible and even untruthful concerning the reason(s) for his remaining in Pakistan for some five years beyond his approved leave and I further reject his evidence concerning the alleged negotiations between his Union and RailCorp during the period May to September 2010.
[30] Even if I was wrong in my earlier determination that Mr Qazi’s employment ended on or about 6 June 2007, I would still not extend time. It is apparent that Mr Qazi definitely learned of his termination in May 2010 and took no action to challenge it until 6 October 2010. As noted above, I reject his evidence that his Union negotiated with RailCorp for some months after May 2010.
[31] All in all, I find that this is not a case where I should exercise my discretion to extend the time for filing and therefore refuse to do so. The substantive application for relief is therefore also dismissed.
[32] Having made the above determination, it is not necessary for me to determine the abandonment of employment question but I should note that on what is before me, it is doubtful that RailCorp would be unsuccessful in pursuing that issue and that also buttresses my finding that time should not be extended.
[33] An order reflecting this decision is in PR510952.
COMMISSIONER
Appearances:
F Levy, for the Applicant.
J Morton, for Rail Corporation New South Wales.
Hearing details:
2011.
April 1.
May 4.
1 Exhibit RailCorp 1.
2 (1995) 67 IR 298 at p299.
3 [2008] AIRCFB 452, 30 May 2008 ( per Lawler VP, Richards SDP, Redmond C)
4 Ibid at paragraph 23.
5 See Exhibit RailCorp 1.
6 See Exhibit RailCorp 2.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR510951>
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