| [2019] FWCFB 6293 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Emad Soliman
v
The Cultural Office of the Embassy of the State of Kuwait
(C2019/4123)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 10 SEPTEMBER 2019 |
Appeal against decision [2019] FWC 4074 of Commissioner Yilmaz at Melbourne on 13 June 2019 in matter number C2019/168 – extension of time – permission to appeal granted – appeal upheld – matter remitted for determination.
[1] Mr Emad Soliman has applied for permission to appeal and appeals a decision 1 of Commissioner Yilmaz on 13 June 2019 (the Decision) in which the Commissioner declined to grant his application for an extension of the time to lodge a general protections application under s.365 of the Fair Work Act 2009 (Cth) (the Act).
[2] The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal. At the appeal hearing, Mr Soliman represented himself. The Respondent sought permission, under s.596 of the Act, to be represented by Ms Caitlin Meers of Snedden Hall & Gallop Lawyers. We were satisfied that the matter was invested with sufficient complexity such that we would be assisted in the efficient conduct of the matter if we allowed the Respondent to be represented by Ms Meers and permission was granted pursuant to s.596(2)(a) of the Act.
[3] We have determined to grant permission to appeal and uphold the appeal. Our reasons follow.
[4] Section 366(1) of the Act requires an application under s.365:
(a) to be made within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows if it is satisfied that there are “exceptional circumstances”, having regard to the factors set out in s.366(2).
[5] At the hearing of the application for an extension of time, the Commissioner granted both parties permission to be represented by lawyers. Mr Soliman attended by telephone from an airport.
[6] Beyond the Form F8 – General protections application involving dismissal (Form F8) and Form F8A – Response to general protections application (Form F8A), each party filed written outlines of argument. 2 Other than documents attached to the Form F8 described by Mr Soliman as “Annexure A” and “Annexure B” and a further two attachments (being Mr Soliman’s contract of employment and an email dated 17 November 2018), no documentary or witness evidence was sought to be relied upon in advance of, or at the hearing.
[7] Shortly after the hearing, Mr Soliman wrote directly to the Commission attaching an email dated 21 November 2018 which he said was sent “to follow up with them on my previous email dated 17 Nov 2018 and to notify them of my mailing address as I was anticipating a response in writing pertaining my employment status”. The Respondent opposed the reception of this email, maintaining it was fresh evidence and submitting the email merely reported Mr Soliman’s address and made no further request for confirmation of his employment status. The Commissioner responded by stating she would give due consideration to the Respondent’s submission regarding Mr Soliman’s email dated 21 November 2018.
[8] The Decision begins with a brief overview, including the statements that Mr Soliman was terminated on 13 November 2018, the Form F8 was lodged 58 days after he was dismissed and that it was lodged 37 days outside the statutory timeframe.
[9] At paragraph [23] of the Decision, the Commissioner notes Mr Soliman’s contention that “he was not informed of his termination of employment until 10 January 2019”.
[10] After summarising the submissions of the parties, the Commissioner considers each of the factors relevant to whether there are exceptional circumstances at s.366(2)(a) to (e). In considering the reason for the delay 3 (s.366(2)(a)), the Commissioner states at paragraph [24] of the Decision:
“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. …”
[11] The Decision goes on at paragraph [26] as follows:
“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.”
[12] The Commissioner deals with the remaining matters specified in ss.366(2)(b) to 366(2)(e) at paragraphs [27] to [39] of the Decision as follows:
• Mr Soliman did not take all reasonable and practicable steps to challenge his dismissal 4 (s.366(3)(b));
• the Commissioner was not persuaded the Respondent requiring instructions from the Home Office in Kuwait if the extension of time was granted, necessitating interpreting and further costs, weighed heavily in so far as prejudice to the employer was concerned 5 (s.366(2)(c));
• the Commissioner was not able to conclude the prospect of success of the merits of the application, due to the limited material 6 (s.366(3)(d));
• as both parties did not advance evidence relating to the fairness between the Applicant and other employees, the Commissioner considered this to be a neutral factor 7 (s.366(2)(e)).
[13] Ultimately, after considering each of the factors at s.366(2), the Commissioner concludes (at paragraphs [40] to [41]):
“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 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 some time 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.”
[14] In summary, Mr Soliman’s grounds of appeal in the Form F7 – Notice of Appeal are:
(a) A failure by the Commissioner to take some material facts into consideration:
(i) the serious illness of his mother, who was diagnosed with triple negative fourth grade cancer a few days after his suspension;
(ii) the referral from the law society/clearing house went to the wrong law society who declined to accept the case on a pro-bono basis, resulting in the case not being referred to Chamberlain Law Firm until 4 December 2018;
(iii) the absence of termination of employment correspondence or notification of [termination of] employment;
(iv) the lack of hard evidence that the Respondent did not receive the email that he sent on 17 November 2018, which showed immediate delivery “after sent time on my status”.
(b) The Decision was based on mistaken facts regarding the merits of his general protections claim, with specific reference to:
(i) the finding in relation to Mr Soliman providing a student with his personal mobile number;
(ii) the finding that Mr Soliman initiated a walk off in July 2018 with seven other staff members;
(iii) the finding that Mr Soliman’s employment was terminated on 13 November 2018; and
(iv) the reference to Mr Soliman asserting 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, when it was the absence of any written communication from management or response to his emails that were sent on 17 November 2018 and 21 November 2018 that made his employment status ambiguous.
[15] Further, in his Outline of Submissions on Appeal dated 30 July 2019, Mr Soliman contends that the Commissioner’s finding that he was dismissed on 13 November was a significant error of fact.
[16] Mr Soliman seeks to admit further evidence in support of his position on appeal, including:
(a) an English translation of a policy document said to constitute the Respondent’s internal procedures for disciplinary investigations and termination of employment (the Policy), which Mr Soliman says will prove that there was no authority to terminate his employment on 13 November 2018;
(b) an email dated 10 January 2019, which Mr Soliman says will (when read with the Policy) prove that he was dismissed on 10 January 2019; and
(c) a medical report in relation to the condition of Mr Soliman’s mother dated 18 November 2018.
[17] Mr Soliman’s submissions as to why he believed it is in the public interest for the Commission to grant permission for the appeal focus on the implications he considers would flow if his unjust treatment went unchecked. He submits that not allowing his appeal would result in the Respondent continuing to ignore Australian laws and its contractual obligations and embolden the continuation of the culture of fear and intimidation among the staff who work for some embassies in Australia. Mr Soliman also takes great exception to the allegations made against him and seeks to clear his name.
[18] The Respondent initially sought to address the Full Bench about why it should not grant permission or allow the appeal under s.400, relevant only to an appeal from a decision made under Part 3-2 of the Act relating to unfair dismissal. Following the appeal hearing, the Respondent was permitted to file further submissions in relation to s.604 of the Act. 8 The Respondent submits that there is no public interest in granting permission to appeal nor should the appeal be upheld for any other reason.
[19] An appeal under s.604 is by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 9 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[20] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 10 The public interest is not satisfied simply by the identification of error,11 or a preference for a different result.12
[21] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 13 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.14 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.15
[22] As we have set out above, an application for the Commission to deal with a general protections application involving dismissal under s.365 must be made within 21 days after the dismissal took effect, or such further period as the Commission allows. Whether the application was filed within the statutory timeframe is a question of fact. 16 The question of whether to grant an extension of the time for filing does not arise in circumstances where an application is made within time.
[23] It is apparent from the appeal grounds and the Outline of Submissions on Appeal that Mr Soliman contends that the Commissioner erred in finding that the effective date of his dismissal was 13 November 2018. That conclusion had two consequences:
(a) it resulted in a finding that Mr Soliman’s application was made outside the statutory timeframe; and
(b) it was considered relevant to the reasons for the delay, which the Commissioner ultimately found weighed “heavily” against Mr Soliman when reaching her conclusion that he had not substantiated exceptional circumstances for an extension of time.
[24] There were some agreed facts of relevance to the question of the date of the dismissal. Specifically, that there was a disciplinary meeting on 13 November 2018 and no final termination payment until at least (or after) 10 January 2019.
[25] However, the date of dismissal has been in dispute since the Form F8 and Form F8A were filed. Mr Soliman has maintained throughout the proceeding that he was suspended on 13 November 2018 and the status of his employment after 13 November 2018 was ambiguous, whereas the Respondent has maintained that the employment terminated on 13 November 2018.
[26] We have earlier referred to the Commissioner’s observations in paragraph [23] of the Decision. It is useful at this juncture to set out the paragraph in full:
“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? 17 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.”
[27] It is true the Form F8 indicates in answering Question 1.3 (What date did your dismissal take effect?) that the termination was effective on 13 November 2018. However, the answer to Question 1.4 (What date were you notified of your dismissal?), stating that Mr Soliman was “constructively notified on 13 November 2018”, conveys a more nuanced position. This position is further developed in the answer to Question 1.4 of the Form F8, which indicates Mr Soliman’s uncertainty as to the status of his employment following 13 November 2018 persisted until the time he lodged his general protections application, as follows:
“On 13 November 2018 the applicant was notified orally that if he didn’t resign he would be terminated. He advised the employer that he did not agree with their allegations and would not resign. He was then informed that I would be “suspended” without pay and was required to leave the building immediately. He has since not been given any written or oral communication to advise the outcome of his purported suspension or otherwise. The applicant has corresponded with the employer on 17 November 2018 by email (attached) requesting confirmation about the status of his employment. He has not received any response.
Due to the uncertainty surrounding the applicant’s termination or suspension or otherwise, he has not been able to determine an actual date of termination however given the lack of communication and having been restricted from returning to work from 13 November 2018 it seems apparent that the applicant’s employment has been constructively dismissed.
The applicant has since sought legal advice and has been advised to lodge a claim. The uncertainty around the status of his employment has lead to a delay with lodging the application within 21 days from his last date of employment.”
[28] In paragraphs 1.10 to 1.14 of “Annexure A” to the Form F8, Mr Soliman gave his account of the meeting on 13 November 2018, stating it resulted in his suspension and that he had not received formal notification of the termination or otherwise of his employment, despite sending the email dated 17 November 2018.
[29] The email dated 17 November 2018 attached to the Form F8 suggests it was the understanding of Mr Soliman following the meeting on 13 November 2018 that he had been offered the opportunity to resign or have his employment suspended. In this email, Mr Soliman specifically sought clarification as to his employment status and indicated that he was ready and wanted to resume work on the following Monday.
[30] Finally, through the email of 21 November 2018, submitted after the conclusion of the hearing but before the issuing of the Decision, Mr Soliman corresponds with the Respondent to notify of his updated mailing address “for any outstanding correspondence or further future correspondences”.
[31] The Respondent’s Form F8A outlined that it had come to the decision to terminate Mr Soliman’s employment on 13 November 2018 and he was advised he would be terminated, subject to confirmation from Kuwait’s Ministry of Higher Education (MOHE) in that regard. However it is then outlined Mr Soliman was also told that he could resign or alternatively, he would be dismissed. It is further outlined that on 10 January 2019, and following confirmation from the MOHE, the Respondent wrote to Mr Soliman requesting his bank details to allow the Respondent to make payment of his final entitlements. In contrast to Mr Soliman, the Respondent produced no documentary material in support of its position.
[32] While we consider the Commissioner was not greatly assisted by the representatives of the parties at first instance, we are of the view the Commissioner did not have proper regard to what Mr Soliman said his case was or to the significant factual question of when he was dismissed. The totality of Mr Soliman’s answers to each of Questions 1.2, 1.3 and 1.4 in the Form F8, the contents of “Annexure A” attached to the Form F8 and the two emails dated 17 and 21 November 2018, together with submissions made by Mr Soliman’s lawyer at the hearing before the Commissioner, 18 were relevant considerations to be weighed in determining the effective date of dismissal and whether Mr Soliman’s general protections application was lodged out of time.
[33] The result was that the Commissioner failed to properly take into account a relevant consideration, being whether the application was filed out of time, given the dispute between the parties as to the effective date of dismissal. On the material before us, it cannot be said that with proper consideration of that question, having regard to all the available material, the outcome would not have been different. We therefore consider the decision is attended with sufficient doubt as to warrant its reconsideration.
[34] It follows from the above that there has been an error in the exercise of the Commissioner’s discretion and it is in the public interest that the appeal be upheld so as to ensure the proper administration of justice. Having so decided, it is not necessary to determine the remaining appeal grounds or the application to admit the further evidence at this time, because the effective date of dismissal is a threshold question that will need to be decided before those additional matters as to the exercise of the discretion to extend time arise. The appropriate course is to uphold the appeal, quash the Decision and remit the matter to another member of the Commission for rehearing.
[35] For the foregoing reasons we have decided to:
(a) Grant permission to appeal;
(b) Uphold the appeal;
(c) Quash the decision in [2019] FWC 4074; and
(d) Remit the matter for a rehearing to Deputy President Mansini.
DEPUTY PRESIDENT
Appearances:
E. Soliman on his own behalf
C. Meers, Snedden Hall & Gallop Lawyers for the Respondent
Hearing details:
2019
8 August 2019.
Melbourne via VC to Canberra
Printed by authority of the Commonwealth Government Printer
<PR712174>
2 Applicant’s Outline of Argument dated 15 April 2019 and Respondent’s Outline of Argument dated 7 May 2019.
3 [2019] FWC 4074 at [18] – [25].
4 Ibid, at [27]-[28]
5 Ibid, at [30] – [31]
6 Ibid, at [32] – [37]
7 Ibid, at [38] – [39]
8 Respondent’s Supplementary Outline of Submissions on Appeal dated 16 August 2019.
9 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
10 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
11 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
12 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
13 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
14 Wan v AIRC (2001) 116 FCR 481 at [30].
15 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
16 Mr Misconi v Negri Contractors (Vic) Pty Ltd [2019] FWCFB 654 at [18].
17 Applicant’s Form F8 at questions 1.2; 1.3.
18 Transcript of Hearing on 13 May 2019 at PN 42, PN 89-90.