Usman Nasir v Precision Energy Services (Australia) Pty Ltd
[2024] FWC 54
•15 JANUARY 2024
| [2024] FWC 54 [Note: An appeal pursuant to s.604 (C2024/633) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Usman Nasir
v
Precision Energy Services (Australia) Pty Ltd
(C2023/7179)
| COMMISSIONER LIM | PERTH, 15 JANUARY 2024 |
Application to deal with contraventions involving dismissal
This decision concerns Mr Usman Nasir’s application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act).
Precision Energy Services (Australia) Pty Ltd (Respondent) employed Mr Nasir as a Field Engineer on 1 September 2023. The Respondent dismissed Mr Nasir on 13 October 2023. Mr Nasir alleges that the Respondent dismissed him in contravention of Part 3-1 of the Act.
Mr Nasir originally filed an unfair dismissal application pursuant to s 394 of the Act on 13 November 2023. Mr Nasir subsequently withdrew his unfair dismissal application and filed this s 365 application on 18 November 2023.
Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, pursuant to s 366(1)(b), within such further period as the Commission allows under s 366(2).
In Mr Nasir’s case, the period of 21 days ended at midnight on 3 November 2023. His application is 15 days out of time.
Mr Nasir seeks a further period for his application to be made under s 366(2). The Respondent opposes this request.
The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 366(2)(a)–(e) of the Act.
I conducted a hearing via MS Teams on 11 January 2024. At the hearing, Mr Nasir represented himself, gave sworn evidence and was cross-examined. The Respondent was represented by Ms Elise Rayney, HR Business Partner, who also gave evidence for the Respondent.
Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.
Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that justify an extension of time.
The detailed reasons for my decision follow.
Events that led to this matter
The Respondent is a branch of Weatherford International. The Respondent employed Mr Nasir on 1 September 2023. Mr Nasir is an engineer by trade. Mr Nasir’s evidence is that during the short period of his employment, there were problems with how the Respondent treated him, with a lack of livable accommodation, training, and communication.
On 13 October 2023, Mr Nasir received a termination letter which provided:
Dear Usman,
Termination of employment
Your probation period with us at Weatherford Australia is due to end in March 2024.
We confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end on Friday 13 October 2023.
Employees and employers may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at will you well in your future endeavours.
Yours sincerely
Leslie Abel
Operations Supervisor- WLS Australia
That same day, Mr Nasir contacted Mrs Francesca Muirhead, Senior HR Business Partner for the Respondent, seeking confirmation that he would be paid one week in lieu of notice. Mrs Muirhead replied on 15 October 2023 confirming that he would.[1]
On 20 October 2023, Mr Nasir wrote to Mrs Muirhead asking for a copy of his final payslip. This was provided to Mr Nasir later that day. Mr Nasir wrote again to Mrs Muirhead contesting the payment on the basis that the payment of a week in lieu of notice was not paid on his contractual day rates.[2] Over the course of 20 October, Mr Nasir and Mrs Muirhead exchanged emails discussing the correct rate of pay for the week in lieu and the application of the relevant enterprise agreement.[3]
On 22 October 2023, Mr Nasir wrote to Mrs Muirhead:
Hi,
The pay in lieu for 38hr week does not justify 1 week payment in lieu as compared to regular work hrs which are 9.5 x 7 = 66.5hrs. Also considering the inconsistencies in offer letter about date rates.
I can understand that WFT has entered into an Enterprise agreement with Fair work to pay special rates which are below minimum award rates in Australia.
I have discussed this matter now with a consultant and look forward to lodge full review of current PESA agreement with Fair work ombudsman to review all past payments as well of all employees, workplace policies about unfair dismissal and a full legal review pending un received remaining payment within 1 week.[4]
During the hearing, Mr Nasir gave evidence that the consultant he had conferred with was an accountant.
On 23 October 2023, Mrs Muirhead replied to Mr Nasir, “Hi Usman, we will once again review your final payment against the ECA. You are within your rights to contact Fair Work Ombudsman, if you feel that you have been unfairly treated.”[5]
On 23 October 2023, Mr Nasir emailed senior executive members of Weatherford International as follows:
Good morning All,
My name is Usman Nasir (Next Gen Engineer 1 – Employee ID 168879 – Australia).
I am reaching out to you in reference to unfair dismissal by Weatherford team on 13th October and unfair treatment of employees in Roma, Queensland. I joined Weatherford on 1 September 2023 and was assigned to Roma Wireline team based in Queensland under supervision of Cortlon Griffin and Leslie Abel.
The[re] are a few points about the treatment I would like to mention that shows poor management:
One first time arrival to Roma airport no communication from the team and I was stranded on the airport for more than 1.5 hrs before getting picked up. Please note Roma is a regional town and there is barely any people on airport after sunset.
Assigned to Staff house in Howard Street Roma with no bed and half clean mattress with no bedding. No food. This staff house was close to end of lease and all the necessary things had already been removed except the mattresses and fridge.
No mentor assigned or training directions despite several request to operations supervisor Leslie Abel rather assigned to car cleaning job which have no part in career development. I requested almost every day for the jobs to be done but neglected every time.
Unhygienic and Poor stay in Jakarta, Indonesia for Next Gen training, communicated to management and no satisfactory response given. Email attached.
No communication about any performance concerns.I had very high expectations from Weatherford and my background has always been outstanding, recently I won the Petroleum contest in NextGen training in Indonesia. I am also a distinction holder from a very reputable Australian university. In my previous experience in Mining and exploration I have delivered high grade Lithium and Nickel resources adding somewhere between 50-300 million dollars to market cap at a very rapid pace. Though company has right to end the employment with one week notice during probation there should be concrete evidence/communication about any performance issues rather I was given only two hours’ notice while I was asleep after coming back from a field job last night & without any reason for ending the employment.
I believe this dismissal is due to personal reasons rather than professional where operations team has failed to provide any reason to few questions asked and developed an unliking for me. Due to similar policies quite a few people have recently left WFT Wireline team to pursue employment in more favourable conditions and competitor companies.
I request that Leslie Abel and Cortlon Griffin should be investigated by senior management or independent inquiry for abuse of power to terminate an employee without legal reasons.
Mr Ashley Brett, HR Director – Asia for Weatherford, replied the same day with:
Good morning Usman
Thank you for raising these issues to me. It is disappointing to hear about your experience while working with Weatherford. I will look into these concerns and work with the management team to ensure that any existing and future employees do not have similar experiences.
On 30 October 2023, Mrs Muirhead wrote again to Mr Nasir to confirm that the Respondent had again reviewed the payment of his week in lieu and they believed they had paid him in accordance with the relevant enterprise agreement. [6]
On 13 November 2023, Mr Nasir filed an application with the Fair Work Commission for an unfair dismissal remedy pursuant to s 394 of the Act. Mr Nasir’s evidence is that the Fair Work Commission’s client services team contacted him on 17 November 2023 to inform him that the minimum employment period to be protected from unfair dismissal is six months. Mr Nasir withdrew his unfair dismissal application and lodged this s 365 application the next day on 18 November 2023.[7]
Should an extension of time be granted?
Under s 366(1) and (2) of the 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.
It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[8] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[9]
In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2):
(a)the reason for the delay; and
(b)any action taken by the person to dispute the dismissal; and
(c)prejudice to the employer (including prejudice caused by the delay); and
(d)the merits of the application; and
(e)fairness as between the person and other persons in a similar position.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[10]
I set out my consideration of each matter below.
Reason for the delay
For Mr Nasir’s application to have been made within 21 days after the dismissal took effect, Mr Nasir needed to lodge by midnight on 3 November 2023. The delay is the period commencing immediately after that time until 18 November 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[11]
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.[12]
An applicant 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 the applicant has not provided any reason for any part of the delay.[13]
Mr Nasir’s evidence is that his application was lodged late for the following three reasons:
(a)A combination of post-traumatic stress, sleep deprivation and anxiety stemming from his dismissal.
(b)He attempted to contact the Fair Work Ombudsman, who referred him to Legal Aid on 23 October 2023, however Legal Aid had no available appointments until 23 December 2023. Legal Aid referred Mr Nasir to Circle Green. However, he was also unable to secure an appointment with Circle Green.
(c)As a migrant, he has very limited knowledge of Australian workplace laws and did not know his rights with regards to dismissals.
In support of ground (a), Mr Nasir submitted a psychology report from Psych Health Consultancy dated 21 December 2023 (Psychology Report). Mr Nasir gave evidence that he attended an assessment with Psych Health Consultancy after the case management conference on 15 December 2023. To date, he has only had one session with Psych Health Consultancy but does have an upcoming session.
The clinical psychologist who assessed Mr Nasir details in the Psychology Report their opinion that Mr Nasir’s mental health has been significantly impacted by his experience with the Respondent. Further, that he is suffering from anxiety and depression, and loss of confidence. Due to being a self-dependent single person with no family or immediate friends around him for support, his mental ability and decision making has been severely affected to act promptly following his dismissal. I accept this evidence from Mr Nasir.
Mr Nasir did not lead any evidence to support ground (b), such as call logs. Accordingly, I cannot accept his submissions on this point.
I accept Mr Nasir’s submissions regarding ground (c) and his lack of knowledge about the Fair Work jurisdiction.
Considering the above, I find that the substantive reason for Mr Nasir’s delay in filing his s 366 application was a combination of his mental health and lack of knowledge about the law.
An applicant’s emotional state or mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances, that evidence must be cogent and inform the context and explanation as to why the application was delayed. Anger, distress and anxiety may not of themselves be sufficient.[14]
It is also well established that lack of awareness about the law, without more, is not a satisfactory explanation or an indicator of exceptional circumstance.[15]
Though I am sympathetic to the impact the dismissal has had on Mr Nasir, I find that Mr Nasir has not provided a satisfactory explanation for his delay in filing his application. In reaching this finding, I note the following:
(a) Mr Nasir had no issues promptly engaging with the Respondent over several emails to dispute the amount he was paid in lieu of notice.
(b) As evidenced by his email on 22 October 2023, Mr Nasir also consulted with a third party about his issues with his pay.
(c) Mr Nasir’s email on 22 October 2023 also shows that he was aware that there were avenues to challenge his dismissal.
(d) The last email from the Respondent on 30 October 2023 was received two days before the 21-day time limit.
(e) When Mr Nasir filed an unfair dismissal application on 13 November 2023, he was already 10 days outside of the statutory timeframe.
Accordingly, I consider that Mr Nasir has not provided a satisfactory explanation for most of the period of the delay in making the unfair dismissal. This is a factor that weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
Mr Nasir submits that he did dispute the dismissal through his emails to the Respondent.
I find that Mr Nasir’s emails to Mrs Muirhead regarding his final pay did not dispute his dismissal. However, I find that Mr Nasir’s email to the senior executive members of Weatherford International on 23 October 2023 did dispute his dismissal.
However, Mr Nasir received a reply from Mr Brett the same day. Mr Brett’s reply indicated that he would be looking into the concerns in the context of “existing and future employees”. This clearly does not include Mr Nasir as a former employee.
I find this to be a neutral factor in assessing whether there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
Neither side advanced arguments on this point. The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. This is a neutral factor in this case.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[16] Further, the primary consideration is whether Mr Nasir has an arguable case.[17]
In his s 365 application, Mr Nasir contends that the Respondent contravened s 340 when they dismissed him. Mr Nasir further contends that he was dismissed for raising concerns about wellbeing and treatment of staff when overseas.[18] The Respondent contends that Mr Nasir was fired within his probationary period as he was not a good fit for the organisation, citing issues with performance and attitude.[19] I am unable to determine merits based on the limited and untested evidence provided.
I find that this is a neutral factor in assessing whether there are exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having considered all the circumstances of this matter and the factors in s 366(2), I am not satisfied that there are exceptional circumstances. I find that the majority of the factors in s 366(2) are neutral, however Mr Nasir has not provided a satisfactory explanation for the delay in filing his application.
As I am not satisfied that there are exceptional circumstances, Mr Nasir’s application must be dismissed. An Order to this effect will issue separately.[20]
COMMISSIONER
Appearances:
U Nasir, Applicant
E Rayney for the Respondent
Hearing details:
2024.
Perth (via Microsoft Teams)
January 11.
[1] Digital Court Book, p 64.
[2] Ibid pp 69-70.
[3] Ibid pp 66-69.
[4] Ibid p 27.
[5] Ibid.
[6] Ibid.
[7] Ibid p 9.
[8] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[9] Ibid.
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[11] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[14] See Underwood v Terra Firma Pty Ltd t/a Terra Firma Business Consulting[2015] FWCFB 3435 at [15] and [16]; Mathew Oliver v Bunnings Group Limited[2021] FWCFB 3496.
[15] Nulty v Blue Star Group[2011] FWAFB 975 and Miller v Allianz Insurance Australia[2016] FWCFB 5472.
[16] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[17] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].
[18] Digital Court Book p 13.
[19] Ibid p 48.
[20] PR770176
Printed by authority of the Commonwealth Government Printer
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