DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Syed Imam
v
AESDAN Pty Ltd
(U2020/10403)

Application for an unfair dismissal remedy.

[1] On 29 July 2020, Mr Syed Tabish Imam (“the Applicant”) lodged an application pursuant to s. 394 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant claimed he was employed, by Aesdan Pty Ltd (“the Respondent”), and that he commenced his employment with the Respondent on 1 June 2017. The Applicant originally claimed in his Form F2 – Unfair Dismissal Application (the “Form F2”) that he was notified of his dismissal on 27 June 2020, and that his dismissal took effect on that date. As outlined below, the Applicant subsequently asserted that he did not become aware of his dismissal until a meeting on 20 July 2020.

[2] The Respondent denied that the Applicant was ever an employee of the Respondent, and was only ever a Director of the Respondent. The Respondent further stated that the Applicant was employed by a company based in Sri Lanka, Tanyo Pharma (PVT) Ltd (“Tanyo”). The Applicant was terminated as an employee of Tanyo on 31 December 2019, and was removed as a Director of the Respondent on 15 June 2020.

[3] Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the various dates of either removal as a Director of the Respondent, the meeting that was to occur on 22 June 2020, or the date originally nominated by the Applicant, and calculating from the date of filing of the application, the following delays outlined in the table below are apparent.

The application was therefore, for each relevant date, lodged outside of the time prescribed and was lodged after the last day on which such an application could have been made.

[4] On 4 September 2020, Directions were issued to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his application (“the Application”) would be determined (“the Directions”).

[5] In the hearing of the Application, the Applicant relied upon the Form F2, an email dated 11 August 2020, to the Chambers of Vice President Catanzariti, a Submission dated 20 August 2020 with 20 annexures, and Submissions filed in Reply (including Statements of evidence from the Applicant and Mr Ahmad Ashbal, an Outline of Arguments – Objections, and Outline of Arguments – Merit and ten numbered annexures).

[6] In the Hearing the Respondent relied upon an Outline of Arguments – Merits, three Statements of Evidence and six numbered documents.

[7] Subsequent to the Hearing of the matter on 22 September 2020, the Respondent was permitted to provide copies of correspondence sent on 31 December 2019, regarding the Applicant “vacating his post” with Tanyo by not attending work, and correspondence dated 15 June 2020, removing the Applicant as a Director of the Respondent. The Applicant filed a further submission, with annexures, of 30 pages in length on 25 September 2020.

Relevant Facts

[8] The relevant facts of the matter, as disclosed by the materials filed and the evidence adduced at the hearing of the matter, are as follows:

(a) The Respondent was founded and incorporated in 2016 by Mr Ashokan Ahilesh. The business had started as a family business, as Mr Ahilesh’s family had a business in Sri Lanka in pharmaceuticals and medical devices for the past 35 years.

(b) The Applicant became a Director of the Respondent in 1 June 2017. He remained a Director of the Respondent until 14 June 2020.

(c) The Applicant claims he was appointed as an employee and a Director of the Respondent pursuant to a letter of appointment dated 28 April 2017, (the “Letter of Appointment”) as a “Whole time Director of the Company” on a fee of $114,000.00 AUD per annum. The duties of that appointment were said to be attending Board Meetings, ad-hoc meetings and other meetings from time to time.

(d) The Respondent stated that the Applicant was never employed by the Respondent, that he was only a Director, and the Letter of Appointment was fake.

(e) The Applicant was also employed as General Manager of Tanyo pursuant to a letter of appointment dated 27 August 2015 (the “Tanyo Letter of Appointment”). The Tanyo Letter of Appointment was for a period of five years commencing on 1 October 2015 and ending on 30^th September 2020. The salary for that position was either $750 USD per month as an all inclusive salary, or a maximum of $2000 USD per month all inclusive salary, car allowance and accommodation per month.

(f) From late 2019 the Respondent alleges that the Applicant was not reporting to work for Tanyo regularly, and had commenced a Company of his own under the name of Tulips Asia (Private) Limited. Tanyo served on the Applicant a Notice of Vacation of Post with effect from 31st December 2019. Since that day the Applicant ceased to be an employee of Tanyo. The correspondence sent on 31 December 2019, regarding the Applicant “vacating his post” with Tanyo by not attending work was sent to three addresses associated with the Applicant. The Applicant denies receiving that correspondence.

(g) On 15 June 2020, the Respondent states that it sent correspondence to the Applicant removing the Applicant as a Director of the Respondent. Mr Ahilesh stated that the correspondence followed from a meeting with the Applicant dated 14 June 2020. That correspondence was sent to was sent to three addresses associated with the Applicant. The Applicant also denies receiving that correspondence. The Respondent stated that the communication was by way of written correspondence due to the COVID-19 pandemic.

(h) After the correspondence of 31 December 2019, and again after the correspondence of 15 June 2020, the Applicant commenced discussions with Tanyo and/or the Respondent for a settlement of amounts each party said were owing. One such meeting to discuss claims was to occur on 22 June 2020. It was before this meeting that the Applicant is alleged to have gone into the office of Mr Ahilesh Ashokan and stolen several files.

On 27 June 2020. The Respondent and Tanyo placed advertisements in two Sri Lankan publications, the Daily Mirror English News Paper and the Tamil Language News Paper. The English language advertisement is outlined below:

(j) The Respondent lodged a complaint with the local Police regarding the files allegedly stolen on 22 June 2020. On 29 June 2020, the Applicant was arrested and produced before a Magistrate and was remanded for approximately one week. On 6 July 2020, the Applicant was released on bail.

(k) A further meeting to discuss claims between the Applicant, and Tanyo and/or the Respondent, for a settlement of amounts each party said were owing occurred at 4.30pm on 20 July 2020. It was at this meeting the Applicant states he became aware of his dismissal.

(l) The Applicant has also commenced proceedings in Sri Lanka regarding his alleged claims against Tanyo and/or the Respondent.

(m) The Applicant produced various documents and correspondence that post-dated both his termination by Tanyo on 31 December 2019, and the Respondent on 15 June 2020, to support an argument that he had not been terminated.

Preferred Evidence

[9] As may be seen in the recitation of relevant facts, there are vast differences between some of the evidence of the witnesses in the matter. For example, while the Applicant claims he was appointed as an employee and a Director of the Respondent pursuant to the Letter of Appointment, the Respondent says the Letter of Appointment was fake. Similarly, while the Respondent states the correspondence of 15 June 2020, was sent to three addresses associated with the Applicant, the Applicant denies receiving that correspondence.

[10] Where the evidence of the witnesses differ, I prefer the evidence of the witnesses for the Respondent. While the Respondent’s witnesses were responsive and direct in answering questions asked of them, the Applicant tailored his evidence to outline circumstances that would most suit his case, whether true or not. That was particularly so when asked of when he was notified of his dismissal. In the Form F2, the Applicant, after stating that his application was not made within 21 days of his dismissal taking effect, had provided the following answers:

1.3 What date were you notified of your dismissal?

And:

3.1 What were the reasons for the dismissal, if any, given by the employer?

[11] In the hearing of the matter, however, the Applicant maintained that he was unaware of the newspaper advertisements when they were published, and that he only found out about his termination at the meeting on 20 July 2020. That evidence was unbelievable. The reason why he was attending meetings in the company of his lawyer on 22 June and 20 July 2020, was because he had been terminated and was attempting to resolve claims around those terminations.

[12] The various documents and correspondence that post-dated both his terminations by Tanyo and the Respondent, were not significant or persuasive of ongoing engagement. They related to minor issues and orders, and only post-dated 15 June 2020, by a matter of days.

Consideration

[13] Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:

“(2)  The application must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (3).”

[14] As the Application was lodged outside of the 21 day timeframe prescribed by s. 394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) 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.”

[15] It is clear from the structure of s. 394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[16] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s. 394(3) of the Act, that there are exceptional circumstances.

(a) Reason for the delay

[17] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd 1 stated:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[18] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd 2:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[19] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[20] Arising from my acceptance of the Respondent’s evidence, I consider the dismissal date to be 15 June 2020, and so the Application was 23 days late. In the Applicant’s Submission in Reply, the following reason for the delay was advanced in response to the question “Did you make your unfair dismissal application within 21 days of when the dismissal took effect?”:

“Dismissal was not communicated to me at all. I came to know my dismissal on 20th July 2020 in a settlement called by other Director and there I have been informed that my dismissal has been published in News papers on 27th of June 2020. Immediate after the meeting event I started exploring how to report my dismissal and wrote to Australian High Commission on 21st July to help me in this matter but due to Covid-19 situation I didn’t received any response. And finally, I got to know about FWC, Australia and I reported on 29.07.2020. Therefore, I feel my application lodged in time within 21 days from 20th July 2020 notice.”

[21] My finding that the Applicant was aware of the dismissal from 15 June 2020, disposes of the above reason. However, I note that in the Form F2, a different answer was given to the same question to which the Applicant responded in the above paragraph. There it was put:

“I was not aware how to report this sort of complain because I was confused due to my geographical employment location is out of Australia I mean in Sri Lanka. And some Directors resides in Sri Lankan having PR in Australia and other Director staying in Australia, Australian Citizen, so it was quite confusing for me to determine how it works and I was trying to figure out the procedure of reporting. However, In the meantime I reported on 21st of July to Australian High Commission – Sri Lanka consular section by email on this requesting legal help to enlighten me the procedure to lodge complaint of my dismissal.

Second since my employment was affected in Sri Lanka and out of three the two directors of the company are currently Sri Lankan citizen but holding PR in Australia. They were pursuing for the settlement and called me for table meeting on dated 20^th July 2020 at M&A Law Nithi Murgesu & Associates, Colombo -02, Sri Lanka for settlement but it has failed due to unreasonable demand and denial for payment from my employer.”

[22] Essentially, what was first advanced by the Applicant in the Form F2 was an assertion as to ignorance of the unfair dismissal jurisdiction and its requirements. As a matter of fairness I have also considered that first reason for delay, but note that ignorance of the law, in particular the 21 day limitation period, is not an acceptable reason for delay.

[23] I find that there was no acceptable explanation for any part of the Applicant’s delay in filing the Form F2. Accordingly, this factor weighs in the Respondent’s favour.

(b) Whether the person first became aware of the dismissal after it had taken effect

[24] Arising from my acceptance of the Respondent’s evidence in this matter, this is not a relevant factor in this matter.

(c) Action taken by the person to dispute the dismissal

[25] The Applicant did not challenge the alleged dismissal. Nonetheless, the Respondent made no submission regarding this consideration being accorded any weight. Accordingly, I consider that this is a neutral factor.

(d) Prejudice to the employer

[26] The Respondent made no submission in the Hearing, and so I make no finding in relation to this factor.

(e) Merits of application

[27] This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred. There are a number of issues arising in this matter that may affect whether there is jurisdiction to hear the matter. Those issues include whether the Applicant was a National System Employee, and whether the Applicant was an employee as well as a Director of the Respondent.

[28] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd 3 held:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[29] In the circumstances, notwithstanding the clear existence of a number of significant jurisdictional issues, in the absence of clear evidence I cannot apportion any weight to this consideration.

(f) Fairness between the person and other persons in a similar position

[30] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[31] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of significant weight was the absence of any acceptable reason for delay. That factor weighed significantly in the Respondent’s favour.

[32] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR723442>

 1   [2014] FWC 479 at [30]

 2   [2018] FWCFB 901 at [39]

 3   (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 at [14]