DECISION

Fair Work Act 2009
s.365—General protections

Emad Soliman
v
The Cultural Office of the Embassy of the State of Kuwait
(C2019/168)

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 day limit - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

[1] On 10 January 2019, Mr Emad Soliman (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant was employed by The Cultural Office of the Embassy of the State of Kuwait (the Respondent) on 16 June 2014 and terminated on 13 November 2018.

[2] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 58 days after the Applicant was dismissed, which is 37 days out of time.

[3] Legal representatives for both the Applicant and Respondent sought permission to appear. Following consideration of their arguments, I permitted legal representation to enable the matter to be dealt with more efficiently, taking into account the complexity of the matter and on the basis that it would be unfair not to permit representation due to language difficulties and fairness between the parties.

Applicant’s submissions

[4] The Applicant was engaged in the position of academic advisor. This role involved assisting sponsored students with their academic work. Leading up to the dismissal there are contentious facts relating to the conduct of the Applicant in his dealings with a student seeking assistance in respect of her university program. The Applicant admits to providing the student with his personal mobile number, however, the nature of communication between the student and the Applicant is contentious. The Respondent submits the Applicant failed to comply with policies and procedures and failed to maintain professional standards. The Applicant submits that he maintained professional standards, despite providing the student with his personal mobile number.

[5] The Applicant contends that on 13 November 2018, the Director in the presence of the Cultural Attaché advised him that his conduct was inappropriate and asked him to resign, and if he resigned in the next five minutes he would be paid out his leave entitlements. The Applicant also submits that he was advised that should the Applicant not resign, he would be terminated and not receive his leave entitlements.

[6] The Applicant submits that he did not resign at the meeting, and was suspended without pay from 14 November 2018. 1 He further submits that he has not received any further notification regarding his employment status, nor received a response to an email he sent to the Respondent on 17 November 2018. The email in question was sent to the Director and the Cultural Attaché. The email to the Respondent dated 17 November 2018 refers to the meeting of 13 November 2018 and provides additional details concerning his communications with the student in question, including the manner in which he conducted himself with other students to support his position relating to the question of his conduct. In the email, the Applicant also reiterates his understanding that he was offered the option to resign or be suspended, he advises that he has a medical certificate for the period of 14-16 November 2018 and is willing to return to work on 19 November 2018. The Applicant also confirms his awareness of the termination of his computer and building access and seeks a reconsideration of his case and clarification concerning the status of his employment.

[7] The Applicant submits that he was not formally notified of his termination of employment, although he submits that on 10 January 2019, he received an email requesting bank account details for the “payment of end of service compensation” 2. The Applicant claims that this email from the Respondent, confirmed in his mind that his employment had been terminated.

[8] In his written submissions, the Applicant makes reference to an incident involving the Applicant pursuing his legal entitlement for the payment of superannuation and tax. It is submitted by the Applicant that the ATO advised the Respondent that it had a legal requirement to make superannuation contributions to its staff. While the Respondent informed its staff that it would make the superannuation payments as a lump sum payment following approval to do so from the Home Office in Kuwait, no payment had been made. It is unclear when this exchange with the ATO and staff occurred. However, it was not contested that the Applicant initiated a walk off in July 2018 with seven other staff members. This action lasted two days and on return to work, it is alleged that the Applicant and his colleagues were told that their action amounted to “an attack on the State of Kuwait” 3. The Applicant submits that he had been dealt with differently since then, and in his view this action was a contributing factor relating to his suspension in November 2018.

[9] In his application, the Applicant contends that the contraventions of the Act by the Respondent relate to:

a) s.385 on the basis that he was offered the option to resign or be suspended and as he has been prevented from returning to work he was terminated unfairly 4

b) s.343 on the basis that he was offered the choice of resignation or suspension he describes as coercion 5

c) s.345 as the Applicant was not paid superannuation entitlements despite the Respondent advising that it would make the payments 6

d) s.346 that the Applicant orchestrated a strike in support of his superannuation claim, and he contends that the termination relates to the strike action, rather than performance issues concerning his conduct in relation to the student 7

Respondent’s submissions

[10] The Respondent contends that the Applicant was subject to prior warnings relating to his performance as academic advisor, and on 13 November 2018, the Applicant was interviewed and advised by the Cultural Attaché, the representative of the Respondent, that the interview formed part of an investigation into his conduct with a student. The Applicant was advised of the allegations and was provided with an opportunity to respond. The Respondent also contends that they determined that the Applicant’s conduct amounted to serious misconduct warranting a further warning, and subject to confirmation from the Home Office, that his employment would be terminated. The Respondent contends that the Applicant was informed that his employment is terminated subject to approval from the Home Office. It is denied that the Applicant was pressured to resign. 8

[11] The Respondent submits that the Applicant was informed verbally during the meeting on 13 November 2018 that his employment was terminated, and in any event, requesting his bank account details on 10 January 2019 after ceasing work on 13 November 2018 confirmed the termination. 9 The Respondent also contends that the Applicant took no steps to contest his termination since his last day of work on 13 November 2018.

[12] The Respondent submits that obligations regarding superannuation were misunderstood and it has since taken action to clarify its obligations under the Superannuation Guarantee legislation, and that on 10 January 2019, following confirmation from the Home Office, the Respondent’s representative wrote to the Applicant seeking his bank account details to make final payment of his entitlements. 10 The Respondent provided no explanation in the delay of complying with these employee entitlements during 2018 until January 2019.

Consideration

[13] On 13 May 2018, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application. Both the Applicant and Respondent complied with directions for filing their outline of submissions.

[14] General protections applications involving dismissal must be made within 21 days.

[15] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[16] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 11 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 12

[17] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[18] The general protection involving dismissal application was signed on 9 January 2019 and was received by the Commission on 10 January 2019.

[19] In his submissions, the Applicant contends that he was restricted from accessing his place of employment and was not able to attend work from 14 November 2018. He further submits that he was unaware that his dismissal had taken effect from 13 November 2018, and received no confirmation, written or oral from the Respondent, despite his email of 17 November 2018 where he sought clarification regarding his employment.

[20] The Applicant submits that in light of the uncertainty concerning his termination date, and the lack of communication from the Respondent, the Applicant could not identify a precise date of termination.

[21] The Applicant submits that he sought legal advice during December, and the law firm which he had sought advice was closed from 22 December 2018 to 6 January 2019. The application was lodged after the law firm reopened in 2019.

[22] When questioned whether the Applicant challenged his dismissal, the Applicant asserted that the restriction of access to the workplace and his computer impeded his ability to make further arguments or raise questions regarding his status of employment. Nevertheless the Applicant submits that he sent an email on 17 November 2018 to his employer. The Applicant alleges he was unaware of the investigation into his contract that took place and further states that he had no opportunity to respond to the allegations made against him by the Respondent.

[23] In considering the reason for the delay I am required to consider all of the relevant matters. The Applicant argues that he was not informed of his termination of employment until 10 January 2019. The Applicant’s submissions are inconsistent with the contention that he was not informed of his termination given that the Applicant was prepared to lodge his application on 9 January 2019 before receiving the Respondent’s email relating to compensation payments on 10 January 2019. The application form clearly noted the day of termination as 13 November 2018 in answer to the questions, What date were you notified of your dismissal?, and What date did your dismissal take effect? 13 Additionally, the Applicant claimed he was given the option to resign and receive his entitlements or not receive his entitlements if terminated by the employer on 13 November 2018.

[24] The Applicant noted the significance of 13 November as the date that he was challenged by the Respondent concerning his conduct, and should I accept his submissions that he was instructed to choose to resign or be suspended, he would have known the gravity of the situation. By his own admission, he was prevented access to his place of employment, and access to his computer was severed. In my view, the Applicant understood that he may be subject to termination of his employment, which presumably is why he sought clarity on 17 November. Despite the email he sent in November, the Applicant failed to take any reasonable action to lodge an application until January, some 58 days after his employment was terminated and 37 days after the 21 day time limit.

[25] Should I accept that one of the reasons that the Applicant was prevented from filing his application was due to the closure of his lawyer’s office, the submission still fails to explain the delay for the period up to 22 December 2018, which is 39 days after his termination of employment or 18 days after the last day in which he could file his general protections application within the 21 day time limit. By his own admission, the Applicant submitted that he sought legal advice in December, which one would assume occurred prior to the closure of the office on 22 December 2018. I consider that the Applicant has failed to provide satisfactory explanation for the delay.

[26] I am satisfied that the Applicant had reasonable cause to be aware of his termination of employment by the Respondent, was aware that the decision to terminate his employment had occurred at the meeting of 13 November 2018. I do not consider the reasons given for the delay (uncertainty of the termination date and the closure of his lawyer’s office over Christmas) weigh in the Applicant’s favour.

Steps taken to dispute the termination

[27] The Applicant argues he took steps to challenge his termination by way of his email of 17 November, 2018, which was never responded to by the Respondent. In considering the one email from the Applicant to the Respondent, I am not persuaded that the Applicant took all reasonable and practicable steps to challenge his dismissal.

[28] Further, I am not persuaded by the submission that the Applicant had reason to accept that he was subject to a suspension until 10 January 2019. The Applicant had opportunity to challenge his dismissal in addition to the one email he sent in November which remained unanswered.

[29] I consider this to weigh against granting an extension for filing of the application.

Prejudice to the employer

[30] During proceedings, the email of 17 November 2018 was subject to an exchange as the Respondent submits it had not received the email. The Applicant provided no evidence to support receipt by the Respondent, and the Respondent provided no evidence to support their submission. The Applicant’s email contained two recipients of the Respondent that he would have communicated with during his period of employment. Based on the submissions and material before me I am inclined to accept that it is more likely that the Respondent had been sent the email.

[31] The Respondent submits that the Applicant knew his employment had been terminated and an extension of time, if accepted, would prejudice the employer. While I accept that the Respondent is likely to be inconvenienced by the granting of an extension of time, the submission that the Respondent would require instructions from the Home Office in Kuwait which in turn require interpreting and consequently further costs, I do not consider necessarily weigh heavily in so far as prejudice to the employer.

Merits of the application

[32] The Applicant made submissions but provided little detail to support the merits of the contravention of ss.343, 345, 346 and 385 of the Act. The Respondent denies offering the Applicant the choice of resigning or to be terminated, in any event, the Respondent confirmed its intention to terminate the Applicant, and in my view, the submissions of the Applicant largely supported the decision to terminate the Applicant on 13 November 2018. However, the allegation made by the Applicant that the termination of his employment because of his workplace right consisted of minimal submissions and evidence. The Respondent also provided limited submissions regarding any potential claim pursuant to ss.345 and 346.

[33] An entitlement to superannuation is not in dispute. The Applicant has a workplace right and a right to pursue that entitlement. While the Respondent admitted to failing to comply with their legal obligations to make superannuation contributions, the merits of the claim that the Applicant’s workplace right contributed to his termination had not been tested.

[34] I note that the submission of the Applicant was that he initiated a walk out in July 2018, and in January 2019, the superannuation obligations had not yet been complied with. The Respondent did not make any admission or submissions in relation to the allegation of the Applicant that he instigated strike action and was subsequently dealt with differently.

[35] Neither party addressed the Commission as to whether the superannuation contributions had been complied with at the time of the hearing in May 2019.

[36] Nevertheless I make the observation, with concern, that the Respondent has known of its obligation to make superannuation contributions in at least July 2018, but had not taken steps to address compliance with this obligation until 2019. The Respondent’s written submissions state that unpaid wages until 14 November 2018 were paid into the Applicant’s bank account on 18 January 2019, accrued annual leave was paid on 4 March 2019, and superannuation was expected to be paid no later than 30 April 2019. Payment of wages, employee annual leave entitlements, tax and payment of employee superannuation contributions are well established employer obligations. The explanation advanced by the Respondent for delay in compliance in my opinion is unsatisfactory.

[37] Despite the admissions of the Respondent to their non-compliance with employment obligations, based on the limited material before me which has not been fully explored or tested, I cannot conclude the prospect of success of a contravention matter pursuant to ss. 345 and 346. Further, the allegations regarding ss. 343 and 385 were not tested and I similarly cannot conclude the prospect of success. Consequently, I consider the merits of the case to be a neutral factor.

Fairness between the person and other persons in a like position

[38] The Applicant submits that he together with seven other employees took action to advance their legal entitlement to the payment of tax and superannuation. While the Respondent made clear their displeasure with the Applicant and the other employees, no evidence was advanced relating to the fairness between the Applicant and other employees.

[39] In written submissions both the Applicant and Respondent did not respond adequately to this consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[40] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar. The reasons given for the delay and the limited steps taken to challenge the termination weigh heavily against the Applicant. While I do not find consideration of prejudice to the employer, merits of the claim and the consideration of fairness against the Applicant, on balance of all the considerations, I am not persuaded that the Applicant has substantiated exceptional circumstances for an extension of time.

[41] In my opinion the Applicant has not met the requirement to substantiate exceptional circumstances warranting an extension of time. While accepting that the Respondent has not complied with their legal obligation to make superannuation contributions, and considering the reasons for their failure to comply, the dismissal occurred sometime after the action taken by the Applicant, and the reason for the dismissal was unrelated. The facts concerning the reason for dismissal were contested and therefore I cannot conclude the prospect of success of the merits of the claim that the dismissal is due to a contravention pursuant to ss. 345 and 346. I order that the application be dismissed.

COMMISSIONER

Appearances:

J Bradfield for the Applicant

C Meers for the Respondent

Hearing details:

2019

Melbourne, Canberra

13 May 2019 (video hearing)

Printed by authority of the Commonwealth Government Printer

<PR709275>

 1   Applicant’s Form F8A at Annexure A [1.13].

 2   Applicant’s Outline of Argument at question 1d.

 3   Ibid at question 1h.

 4   Applicant’s Form F8 at Annexure B.

 5   Ibid; Applicant’s Outline of Argument at question 1h.

 6   Ibid.

 7   Ibid.

 8   Respondent’s Form F8A at [2.2] of Annexure A.

 9   Respondent’s Outline of Argument at question 1b.

 10   Respondent’s Form F8A at [1.11] of Annexure A;

 11   [2011] FWAFB 975.

 12   Ibid at [13].

 13   Applicant’s Form F8 at questions 1.2; 1.3.