Usman Ali v Industries Services Training Pty Ltd
[2011] FWA 9177
•22 DECEMBER 2011
[2011] FWA 9177 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Usman Ali
v
Industries Services Training Pty Ltd
(U2011/7941)
VICE PRESIDENT LAWLER | MELBOURNE, 22 DECEMBER 2011 |
Termination of employment - jurisdiction - qualifying period - extension of time.
[1] Mr Usman Ali has filed an application for an unfair dismissal remedy. Industries Services Training Pty Ltd (IST), the employer, has raised a jurisdictional objection contending that the Applicant is not protected from unfair dismissal because he was dismissed before completing the minimum period of employment.
[2] Fair Work Australia has no jurisdiction to grant an unfair dismissal remedy to a person unless the person was “protected from unfair dismissal ... at the time of being dismissed”: s.390(1) of the Fair Work Act 2009 (FW Act). A person is not protected from unfair dismissal unless, amongst other things, “the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period”: s.382(a). The expression “minimum employment period” is defined in s.383:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
[3] IST is not a small business employer: it had 55 employees at the relevant time (see s.22). The minimum employment period in this case is six months.
[4] The Applicant commenced work for IST in Australia on 3 November 2010. He was given notice of dismissal on 28 April 2011. The termination letter states: “[y]our employment will be terminated effective 12 May 2011, however, you will receive payment in lieu on (sic) notice. Your last working day will be Thursday 28 April 2011”. A separation certificate is dated 29 April 2011 and records that employment ceased on 28 April 2011 and shows payment of final monies to be paid on 3 May 2011. The Applicant contends that the dismissal did not take effect until 12 May 2011. This is understandable given the language of the termination letter. However, the true effect of what occurred is that the dismissal took effect at the time of the payment in lieu of notice 1. The employment separation certificate annexed to the originating application shows this as 3 May 2011.
[5] On the face of the application for relief the Applicant had not completed the six month minimum period of employment and the matter was listed for hearing without requiring the attendance of the Respondent in the expectation that the application was doomed to failure such that the Respondent should not be put to the trouble and expense of attending.
[6] At that hearing Mr Ali claimed that he had worked for IST for a period in Pakistan up until the time he came to Australia to commence working for IST in Australia. This raised the possibility that Mr Ali was an employee of IST while he was still in Pakistan such that his period of employment by IST was longer than the period indicated on the application for relief. The matter was adjourned and a further hearing was conducted in which the Respondent participated (with a transcript of the first day of hearing made available).
[7] Ms Kassiou is the managing director of IST. IST contends that any work performed by Mr Ali in Pakistan was performed for Mr Shafiq, the now ex-husband of Ms Kassiou, and not for IST. Further and alternatively, IST contends that any work performed by Mr Ali in Pakistan was performed by Mr Ali as a contractor rather than as an employee.
[8] Mr Shafiq is a family friend of Mr Ali. Mr Shafiq and Ms Kassiou separated in apparently acrimonious circumstances. Mr Ali contends that the real reason for his dismissal was because he was and remained a friend of Mr Shafiq.
[9] I was not overly impressed with the evidence of either Mr Ali or Ms Kassiou. Mr Ali gave inconsistent oral evidence at a number of points. Ms Kassiou’s statement contains some factual assertions that I am satisfied are incorrect. That said, much of Mr Ali’s evidence I found to be acceptable.
[10] Mr Ali’s first involvement with IST or Mr Shafiq was towards the end of 2009 when he did work on a website “shafiq.com.au”. Mr Ali insisted that Ms Kassiou owned that website. Ms Kassiou insisted that while her name may be associated with the web domain, that website was exclusively her former husband’s business.
[11] Mr Ali claims that he was offered work by IST in late 2009. He said that he was interviewed first by Ms Kassiou who was considering sponsoring him to work in Australia and then by Mr Kerry Beach in relation to technical issues.
[12] Mr Ali claims that he reached an oral agreement with Ms Kassiou that he would work for IST from Pakistan while his 457 visa was arranged and this his salary (50,000 rupees per month) would be applied towards the cost of obtaining his visa and bringing him to Australia. Mr Ali claimed that he worked for IST from the end of December 2009 until the time that he left Pakistan and commenced work for IST in Australia. He claimed that he did not work for anyone other than IST. It was anticipated that the visa would be arranged in several months but it took considerably longer than anticipated. Mr Ali was able to live without receiving an income in this period because he had only just finished his university studies and was still living with his parents who supported him.
[13] Mr Ali relied upon a large number of emails passing between himself and IST in the period to November 2010 as demonstrating that he was working for IST in this period. In cross-examination it was put to Mr Ali that there were many instances where the period between emails was measured in a number of days. In a number of instances those periods were in the order of a week or two. In one instance the period was 35 days. Mr Ali responded to this in two ways. First, he noted that an interval between emails did not mean that he was not working in that period and that some of his work tasks were time consuming and he was also performing system administrator work on an ongoing basis. Second, he noted that he also had numerous voice communications with Mr Beach in which work was allocated. However, in cross-examination Mr Ali admitted that in the period August to November 2010 he was “not working [for] IST on a regular basis”. He said that he received his visa in August and was preparing to come to Australia. Moreover, he was not being asked to do as much work by IST. He maintained that he did everything that was asked of him by IST.
[14] Ms Kassiou agreed that she interviewed Mr Ali in about December 2009 with a view to sponsoring him to come to Australia and work for IST and did this following a recommendation from Mr Shafiq. I reject her evidence to the effect that Mr Ali only ever performed work for Mr Shafiq while Mr Ali was in Pakistan. The emails tendered by Mr Ali are objective evidence that Mr Ali was performing work for IST during the relevant period. Moreover, those emails demonstrate that he did a substantial amount of work for IST throughout the period to November 2010, including in the period from August to November 2010 and that such work may properly be described as regular and systematic. Mr Ali’s understanding of what constitutes regular employment is different to that notice in the unfair dismissal jurisprudence. Those emails also corroborate Mr Ali’s evidence that he mainly dealt with Mr Beach, the system administrator and IT manager of IST. I note that Mr Beach was not called as a witness by IST.
[15] I note that Mr Ali described himself at one point in the transcript for the first day of hearing as a sort of “freelancer”. However, it was clear from Mr Ali’s evidence that he does not have a clear understanding of Australian employment and contract law. For example, it was clear in cross-examination that Mr Ali did not appreciate that a contract did not have to be written and could be oral. It is clear that the parties’ own subjective understanding or belief as to the character of the relationship is not relevant.
[16] In determining whether Mr Ali performed work for IST whilst in Pakistan as an employee or independent contractor, I applied the relevant principle summaries in Cai v Do Rosario 2. The contract was oral and remuneration was applied to covering the costs of obtaining a 457 visa and travelling to Australia to work as an employee of IST. Mr Ali did work as directed by Mr Beach: in a practical sense IST exercised control over the work performed by Mr Ali while he was still in Pakistan. He did not work for any other clients or customers. There is no suggestion that he ever advertised his services. He did not have any employees and there is no suggestion that he had the right to delegate or subcontract the work that he was required to do. His work was skilled work but skilled work of a sort that is often performed by employees. He did not receive sick leave or annual leave and since no payments were made to him, no tax was deducted (either PAYE or GST).
[17] When I apply the relevant principles I am comfortably satisfied that, in the period to November 2010, Mr Ali was an employee rather than an independent contractor. On all the facts in this case, the “ultimate question” is answered clearly in favour of Mr Ali being a servant in the business of IST rather than conducting a business of his own of which the work in question forms part. I find that Mr Ali was an employee of IST during the period that he performed work for IST in Pakistan.
[18] IST is a company and therefore a national system employer within the meaning of s.14. It follows that Mr Ali was a national system employee of IST within the meaning of s.13. It also follows that Mr Ali and IST are employee and employer respectively for the purposes of Part 3-2 of the FW Act: see s.380. I can see nothing in the Act that would prevent time worked overseas by an employee of an Australian national system employer counting towards a period of employment for the purposes of Part 3-2 of the FW Act.
[19] Even if Mr Ali was considered only to be a casual employee in the period to November 2010 I am satisfied that his employment was regular and systematic in the relevant sense such that it counts towards his minimum employment period. It follows that I am satisfied that Mr Ali completed his minimum employment period and that IST’s jurisdictional objection must be dismissed.
Extension of time
[20] Section 394 provides:
“(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
...
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[21] I have already noted that the dismissal in this case took effect upon the making of payment in lieu of notice, that is on 3 May 2011. The originating application was filed on 18 May 2011, that is, one day out of time. The tribunal has no jurisdiction unless time is extended in accordance with s.394(3). I turn to consider the criteria in s.394(3).
The reason for the delay
[22] Delay was occasioned by the psychological impact of the dismissal on Mr Ali. That impact is understandable given that continued employment was critical to a continuation of the 457 visa pursuant to which Mr Ali was entitled to remain in Australia. The impact was sufficiently serious to require Mr Ali to seek treatment from a psychiatrist. Other reasons for the delay include Mr Ali’s ignorance of his legal remedies and, in particular, ignorance of the 14 day time limit in s.394(2).
Whether the person first became aware of the dismissal after it had taken effect
[23] Mr Ali was aware of the dismissal at the time it took effect.
Any action taken by the person to dispute the dismissal
[24] Mr Ali did not take any action to dispute the dismissal other than filing his unfair dismissal application.
Prejudice to the employer (including prejudice caused by the delay)
[25] I am not satisfied that IST will suffer any prejudice as a result of an extension of time beyond prejudice of the sort that is inevitably suffered by a respondent who has to meet an unfair dismissal claim that is otherwise statute-barred.
The merits of the application
[26] If it is within jurisdiction, Mr Ali’s application would appear to have substantial merit. There is no contest that Mr Ali was and remains a friend of Mr Shafiq or that the marriage between Mr Shafiq and Ms Kassiou, the effective controller of IST, ended in circumstances of acrimony. The dismissal letter records that the decision to dismiss was “based on your suitability for the role”. There is no suggestion in the evidence before me as to why Mr Ali was regarded as unsuitable for the role. On the contrary, IST seems to have been more than satisfied with Mr Ali’s work. He received a commendation for his work only shortly before he was terminated.
Fairness as between the person and other persons in a similar position
[27] This criterion is not relevant because there are no other persons in a similar position.
Conclusion on extension of time
[28] Taking into account the matters specified in s.394(3), I am satisfied that there are exceptional circumstances in this case. The fact that Mr Ali was present in Australia on a 457 visa meant that potentially the dismissal had significantly greater adverse impact on Mr Ali than the dismissal of a citizen or permanent resident. I accept that he was discombobulated by the dismissal such that he needed to seek treatment from a psychiatrist. That is an exceptional circumstance that accounts for delay of one day. I am satisfied that the discretion to extend time enlivened by such finding should be exercised in Mr Ali’s favour, particularly given his application was only one day out of time. I extend the time for the filing of Mr Ali’s application for an unfair dismissal remedy to 18 May 2011. The matter will be referred back to the Unfair Dismissal Unit for further processing.
VICE PRESIDENT
U Ali on his own behalf.
L Smith for Industries Services Training Pty Ltd.
Hearing details:
2011.
Melbourne-Darwin:
October 24 (telephone hearing).
Melbourne, Darwin and Adelaide:
November 15 (telephone hearing).
December 12 (video hearing).
1 see Siagian v Sanel Pty Ltd (1994) 122 ALR 333
2 [2011] FWAFB 8307 at [30]
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