Syed Muhammad Shoaib Abbas Zaidi v ARL Laboratory Services Pty Ltd
[2018] FWC 777
•22 FEBRUARY 2018
| [2018] FWC 777 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Syed Muhammad Shoaib Abbas Zaidi
v
ARL Laboratory Services Pty Ltd
(U2017/12366)
| DEPUTY PRESIDENT DEAN | SYDNEY, 22 FEBRUARY 2018 |
Application for an unfair dismissal remedy – effective date of dismissal – application 137 days out of time – extension of time refused.
Mr Zaidi commenced employment under a s.457 visa arrangement with ARL Laboratory Services Pty Ltd (ARL Laboratory Services) on 26 August 2013.
On 21 November 2017 Mr Zadi lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by ARL Laboratory Services. Mr Zaidi submitted that his employment was terminated effective 30 October 2017.
ARL Laboratory Services submits that Mr Zaidi’s employment was terminated effective 16 June 2017. In the alternative, ARL Laboratory Services submits that the termination took effect on 18 October 2017.
As the application was made on 21 November 2017, Mr Zaidi contends his application was made within time. If ARL Laboratory Services is correct about the date the employment relationship ended, his application is either 137 or 13 days beyond the prescribed timeframe.
The matter was listed for hearing on 6 February 2018 to determine two matters, First, what was the effective date of Mr Zaidi’s dismissal, and, second, if the application was not made within the time prescribed by the Act, whether an extension of time should be granted pursuant to s.394(3) of the Act.
At the hearing, Mr Zaidi appeared on his own behalf. Mr Robinson with Mr Ali and Mr Fullarton appeared on behalf of ARL Laboratory Services.
When did the dismissal take effect?
A termination at the initiative of the employer involves some action of the employer that is intended to bring the employment relationship to an end, or had that probable result.[1]
The term ‘dismissed’ for the purposes of the unfair dismissal jurisdiction is defined in s.386 of the Act. Section 386 provides that a person is dismissed if the person’s employment with his or her employer has been terminated at the employer’s initiative, or the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.[2]
In J Searle and Moly Mines Limited,[3] a full bench considered the meaning of termination at the initiative of the employer, and stated:
[22] Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd[4]:
“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ said (at 454):
“An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson’s Case [Williamson v The Commonwealth, (1907) 5 CLR 174 at 185] and Lucy’s Case [Lucy v The Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].”
And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:
“there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.” “
[23] In the case of wrongful dismissal, as the passage shows, the employment is terminated by the employer even though the contract continues until the employee accepts the repudiation, thereby bringing the contract to an end. In applying the statutory test it is the termination of the employment relationship which is important.
The proper test for determining the date of dismissal is the date the employment relationship ended.
On 16 June 2017 ARL Laboratory Services provided to Mr Zaidi a letter of termination.[5] The letter said:
“Dear Shoaib,
Due to actions unbefitting of an ARL Supervisor your services are terminated with immediate effect. The actions include the following.
· Falsifying time sheets
· Unauthorised use of company fuel card
· Unauthorised use of Company Toll Tag
· Abuse of Caltex supplied internet
· Unauthorised use of company vehicles
· Failure to carry out duties as an ARL Supervisor
The Department of Immigration and Border Protection will be notified accordingly of your employment termination with ARL Laboratory Services as per the requirements of your 457 work visa.”
The letter of 16 June 2017 was handed to Mr Zaidi by Mr Fullarton of ARL Laboratory Services, who at the same time removed Mr Zaidi from site, retrieved all of the company property held by Mr Zaidi (such as keys etc) and drove him to his home. Shortly after 16 June 2017, Mr Zaidi was paid his termination pay.
Mr Zaidi subsequently made numerous attempts, via text message, telephone, and in person, to have the decision to terminate his employment reversed.
On 17 July 2017 Mr Zaidi sent a letter to ARL Laboratory Services in the following terms:
“Subject: Reconsideration of Hiring in ARL as a New Employee as I am Accepting of all charges as per the termination letter dated 16/06/2017 (see attached)
Respected sir,
Please accept my apology that has caused inconvenience to ARL management, I am accepting that I have made these mistakes during my employment with ARL, however I will make sure that if I am being accepted as a new employee with ARL that under no circumstances will it happen again.
May I also request 3 months leave without pay in order to settle my personal problems that were the cause of my past ignorance.
I also acknowledge that ARL have paid me all dues and entitlements owed.
After 3 months if ARL has an opening available, I am available to work in any ARL office, inside or outside Queensland on a six month probation period to regain the trust of ARL.
I acknowledge this is a strictly confidential agreement between ARL Laboratory Services and Shoaib Zaidi and as such cannot be disclosed to any other party.”
On 30 October 2017 ARL Laboratory Services notified the Department of Immigration and Border Protection (the Department) of the termination of Mr Zaidi’s employment in a letter which stated, in part:
“We wish to inform you that Mr Shoaib Zaidi holding a visa 457 with ARL Laboratory Services Pty Ltd has been terminated from ARL as of 18th October 2017. This was due to numerous violations and breaches of his employment.
Mr Zaidi has been on unpaid leave since 17th July 2017 for 3 months at his request …
All Mr Zaidi’s employment entitlements have been paid in full and finalized. ARL will pay Mr Zaidi’s return ticket back to his home if required to do so by your department.”
On the same day ARL Laboratory Services wrote to Mr Zaidi to advise that it had notified the Department of the termination of his employment.
Mr Zaidi submits that the termination of his employment took effect on the date the Department was notified, being 30 October 2017.
ARL Laboratory Services submits that Mr Zaidi was dismissed on 16 June 2017 and did not perform any work after that date. It submitted that Mr Zaidi was paid all his entitlements, which Mr Zaidi acknowledged in his letter of 17 July 2017.
The evidence overwhelmingly supports a finding that the employment relationship ended on 16 June 2017, when ARL Laboratory Services:
- advised Mr Zaidi his employment was terminated;
- handed him a letter confirming the termination of his employment;
- removed him from the workplace;
- collected all of the company property in Mr Zaidi’s possession; and
- shortly thereafter, paid him his termination pay.
These actions of ARL Laboratory Services intended to, and did, bring the employment relationship to an end on 16 June 2017.
This finding is further supported by the uncontested evidence that Mr Zaidi did not perform any work after 16 June 2017, and in his letter of 17 July 2017, acknowledged the termination of his employment effective 16 June 2017 and sought re-employment with the employer.
I reject Mr Zaidi’s contention that the dismissal did not take effect until the Department of Immigration was notified of his dismissal. The delay in notifying the Department of Mr Zaidi’s dismissal does not change the fact that the dismissal was effected on 16 June 2017.
I further reject Mr Zaidi’s contention that he had been effectively re-employed and granted three months unpaid leave between 17 July and 18 October 2017, despite the contents of the letter to the Department. In this regard, I find that ARL Laboratory Services allowed Mr Zaidi a period of time in which to ‘settle his personal problems”, given the consequences the termination of his employment could have had with respect to his visa status.
Accordingly, I find that Mr Zaidi’s dismissal took effect on 16 June 2017.
In reaching my finding, I have had regard to all materials, submissions and evidence which are relevant to the issue I am required to determine.
As Mr Zaidi’s application was filed on 21 November 2017, his application was made some 137 days outside the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether Mr Zaidi should be granted an extension of time.
Extension of time
Section 394(3) of the Act provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 the person and other persons in a similar position.
In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[6] where the Full Bench said:
“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
Mr Zaidi gave evidence that he understood his termination to have taken effect on 30 October 2017 on receipt of the correspondence from ARL Laboratory Services to the Department of Immigration on that date.
Mr Zaidi acknowledged receipt of the letter of termination on the 16 June 2017. The letter of termination clearly states that the termination was effective immediately. He did not perform any work after that date. For the reasons set out earlier, it should have been apparent to Mr Zaidi that the date of effect of termination was 16 June 2017.
I find that the circumstances described by Mr Zaidi as reasons for the delay in lodging this application cannot be considered ‘exceptional’. This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
Mr Zaidi gave evidence that he received the letter of termination on 16 June 2017, and did not perform any work after that date. I am satisfied and find that Mr Zaidi was aware of his dismissal at the time it took effect.
This weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
Mr Zaidi submits that he made various attempts to contact personnel within ARL Laboratory Services as well as personnel on the Caltex site on which he worked in an attempt to have the decision to terminate his employment revisited.
This weighs in favour of a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I am not persuaded that granting an extension of time would result in a prejudice to the Respondent. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
For the purpose of determining whether to grant an extension of time for Mr Zaidi to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[7]
Mr Zaidi submits that his employment was terminated without notification or reason. ARL Laboratory Services submits that Mr Zaidi’s employment was terminated for a number of reasons and he was given prior warnings regarding his conduct.
On the material before me, I am unable to make a final determination of the merits in this matter.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[8] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[9]
I do not consider that there are other relevant persons in a similar position to Mr Zaidi. I therefore find this to be a neutral consideration.
Conclusion
Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances as to warrant my granting an exception to the statutory time limit for the lodgement of this application.
As a result, Mr Zaidi’s application for an extension of time is refused and the substantive application is dismissed.
An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
S Zaidi on his own behalf.
W Robinson with R Ali and D Fullarton on behalf of ARL Laboratory Services Pty Ltd.
Hearing details:
2018.
Brisbane:
February 6.
<PR600159>
[1] Searle v Moly Mines Limited [2008] AIRCFB 1088 at para 2.
[2] Section 386 of the Act.
[3] [2008] AIRCFB 1088.
[4] (1995) 185 CLR 410 at 427.
[5] Exhibit 1.
[6] [2011] FWAFB 975.
[7] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[8] [2015] FWC 8885.
[9] Ibid at [29].
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