Abdul Aboud v NICKAL PTY LTD. [2023] FWC 1862

1 Fair Work Act 2009 s.365—General protections Abdul Aboud v NICKAL PTY LTD. (C2022/7507) COMMISSIONER SCHNEIDER PERTH, 28 JULY 2023 Application to deal with contraventions involving dismissal [1] Mr Abdul Aboud (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Nickal Pty Ltd T/A Plan and Grow (the Respondent) in contravention of Part 3-1 of the Act. [2] The Respondent has objected to the application on the ground that the application was filed out of time. Before dealing with the dispute, I must be satisfied that the application was not made out of time. Legislation [3] Section 366(1) of the Act provides that such an application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the Commission allows. [4] It is a matter of record that the application was made on 11 November 2022. [5] The parties are in dispute about when the dismissal took effect. Background [6] The Applicant was engaged by the Respondent as a Support Worker on a permanent full-time basis. [7] The Applicant’s contract of employment with the Respondent required the Applicant to “maintain all necessary licences and permits to perform your duties and immediately advise the Employer of any issues with your licences or permits”. [2023] FWC 1862 DECISION -- 1 of 7 -- [2023] FWC 1862 2 [8] The Applicant was the subject of a criminal investigation in April 2021. [9] Due to the nature of the criminal allegations against the Applicant, investigations were conducted by the Western Australia Police and the NDIS Commission. [10] On 20 April 2021, the Respondent issued the Applicant with a letter confirming that the Applicant’s employment with the Respondent had been “suspended”. The letter, which was submitted by the Respondent, stated the below: “I am writing to you in regards to the suspension of your employment with Nickal PTY LTD pending investigation from 20 April 2021 until further notice… … Whilst you are under suspension you must not carry out any of your work duties with Nickal PTY LTD, and you should not come into the workplace unless agreed upon… …When the investigation is complete we will let you know of the outcome as soon as possible.” [11] The Respondent provided evidence which confirmed that, from 6 August 2021, the Applicant received a Banning Order from the NDIS Commission. [12] The Banning Order prevented the Applicant from being involved in the provision of supports and services, directly or indirectly, to people with disability for a period of 2 years. [13] The criminal proceedings against the Applicant were dropped on 6 October 2022. Submissions and Evidence [14] The Respondent submits that the Applicant’s employment was terminated effective 28 July 2021. However, the Respondent was unable to provide any form of evidence to support this position. [15] Further, the Respondent could not provide evidence of any internal material which would support its assertion that the Applicant had been terminated. [16] The Respondent confirmed that the letter sent to the Applicant, on 20 April 2021, was a letter of suspension, not relying on that correspondence as notification of termination. [17] The Respondent submitted that it was difficult to provide the Applicant with an outcome to the investigation in a timely manner due to the parallel investigations by government bodies. [18] The Respondent also noted that the staff who conducted interviews with the Applicant had now departed the business, making it difficult to provide material evidence regarding the content of such interviews. -- 2 of 7 -- [2023] FWC 1862 3 [19] At the Hearing, when prompted by the Commission regarding what notification was provided to the Applicant on 28 July 2021 to support its position, the Respondent seemingly avoided answering directly before declining to comment: “COMMISSIONER So just to be clear, I'd just like to confirm this for my own understating, the position of the business is now that the Applicant’s employment ceased on the 20th of April 2021? RESPONDENT Well. It was a letter of suspension. COMMISSIONER Okay. On the 28th of July, which I believe is the other date that was mentioned, what information or notification was sent by the business to the Applicant to confirm his employment had ended? RESPONDENT Okay. Um, with the – with the considerable extension to this application, we also believe that there is a prejudice to the employer as the general manager and human- COMMISSIONER That's – that’s not what I asked. What I asked was what information was sent to the Applicant to confirm his employment was terminated. RESPONDENT I cannot comment as we have no record. It is just in our system as filed as done. COMMISSIONER So I do have some concerns in relation to this application, and I have a concern that the Applicant in fact may never have been terminated by the Respondent.”1 [20] The Applicant also confirmed that no communication was received from the Respondent on 28 July 2021. [21] The Applicant submits that the Respondent had never issued any form of termination letter or confirmed that his employment with the Respondent had ceased. [22] At the Hearing, the Applicant submitted that the Respondent had clearly suspended the Applicant’s employment, but it was unclear whether he was terminated at all as it was never communicated. -- 3 of 7 -- [2023] FWC 1862 4 [23] The Banning Order issued against Applicant, in practical terms, allegedly provided the Respondent with a valid reason to terminate the Applicant’s employment, as the Applicant was no longer legally able to complete his duties with the Respondent. [24] When questioned during the hearing, the Respondent could not confirm if the Applicant had been paid out any outstanding leave entitlements or similar. [25] The Applicant also provided submissions in relation to exceptional circumstances, in the event the Commission determines the application was indeed filed out of time. [26] The Applicant asserts that the overall circumstances of the matter, noting the parallel criminal charges, gives rise to exceptional circumstances. Consideration [27] I do not accept the Respondent’s position, that the employment relationship ceased on 28 July 2021. [28] I am satisfied, based on the material before the Commission and the Respondent’s own admission, that the Applicant has been dismissed. [29] However, a dismissal cannot take effect until it is communicated to the employee.2 In Ayub v NSW Trains,3 the Full Bench of the Commission considered a matter on appeal in which the appellant was notified of their dismissal several days following the date of termination asserted by the employer. The Full Bench stated the following in consideration of section 386 of the Act: “Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3- 2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.”4 [30] Further, in assessing the employer’s assertion that the dismissal took effect prior to the notification, the Full Bench in Ayub v NSW Trains found the following: “In Mr Ayub’s case, if the dismissal took effect on 18 January 2016 or later, his application was lodged within the 21-day time period prescribed by s.394(2)(a). The calculation of the 21-day period is calculated exclusive of the day upon which the dismissal took effect 23, so that if the date of dismissal was 18 January 2016, then 8 February 2016 (when Mr Ayub’s application was lodged) was the 21st day. Accordingly it would need to be concluded that the date of effect of Mr Ayub’s dismissal was before 18 January 2016 in order for him to require an extension of time under s.394(3). Although NSW Trains’ email of 18 January 2016 (which attached the Outcome Letter and the Dismissal Letter), which was sent to Mr Ayub via his wife’s email address, purported to identify that his employment ended on 14 January 2016, it could not legally have retrospective effect in that way. There is no suggestion that Mr Ayub’s contract of -- 4 of 7 -- [2023] FWC 1862 5 employment or the enterprise agreement which applied to his employment authorised a retrospective dismissal; at common law, a termination of the employment contract for breach cannot operate retrospectively; and for the reasons earlier stated we do not consider that, on the proper construction of s.394(2), a dismissal could take effect retrospectively such as to deny or diminish an employee’s right to make an unfair dismissal remedy application within 21 days.”5 [31] In conclusion, the Full Bench determined that the date of notification to the appellant was the date that the dismissal took effect and determined that no extension of time to file needed to be considered: “We consider that the finding that the dismissal took effect on 14 January 2016 was in error, and that the dismissal took effect not earlier than 18 January 2016. Mr Ayub’s unfair dismissal application was lodged within the 21-day period prescribed by s.394(2)(a), and no extension of time under s.394(3) was required.”6 [32] It is helpful to note the principles outlined by Commissioner Cambridge in Transport Workers' Union of Australia v Startrack Express Pty Ltd: “It would seem therefore that the correct approach to the determination of the date that a dismissal took effect would involve a factual finding based upon general application of a number of guiding concepts. Firstly, any failure to communicate a decision to dismiss an employee will usually mean that the dismissal would not have taken effect. Secondly, it does not necessarily follow that in the absence of communication of dismissal there has not been a dismissal; rather, the dismissal has just not taken effect unless and until it has been communicated to the employee. Thirdly, in some circumstances particularly involving casual employment, it is conceivable that a dismissal might occur and never be communicated to the employee. The date that such a dismissal might take effect would likely be the time at which the employee could reasonably treat the actions of the employer as dismissal. Fourthly, these concepts should not be regarded as rules that have some universal application but instead represent guides to any consideration having regard to the particular circumstances of each case.”7 [33] The matter currently before the Commission contains several factors which need to be considered in relation to the circumstances of the Applicant: • The Applicant migrating to Australia as an adult and that English is his second language. • The serious nature of the allegations and criminal proceedings that the Applicant was dealing with outside of his employment. • The complete lack of evidence that supports the Respondent’s position that the Applicant was notified of his employment being terminated. • The lack of communication between the parties from when the Applicant was “suspended” from his employment in April 2021 to making this application with the Commission on 11 November 2022. -- 5 of 7 -- [2023] FWC 1862 6 [34] Having considered the above case law and the materials submitted by the parties, I have found that the Respondent, in all probability, made the decision to dismiss the Applicant during late July or early August in 2021. [35] This would have coincided with the Applicant receiving the Banning Order from the NDIS Commission, preventing him from completing the inherent requirements of his role. [36] Despite the notification from the NDIS Commission, the Respondent failed to communicate any decision to dismiss the Applicant from his employment. [37] The above is a serious failure by the Respondent. The result is that the dismissal did not take effect without such communication. [38] This failure leaves both parties and the Commission in a difficult position in regard to the Applicant’s employment apparently ending with nothing to confirm it being actioned. The Applicant has been left in limbo, the Commission must now assess the matter on the little material provided, and it appears that the Respondent may benefit from completing an internal audit to confirm if there are any outstanding entitlements owed to the Applicant which have not yet been paid. [39] The Applicant received communication from the Respondent which clearly stated that it would contact him “when the investigation is complete we will let you know the outcome as soon as possible”. Despite providing the Applicant with this assurance, in writing on 20 April 2021, the Respondent failed to notify the Applicant of any dismissal. [40] It is reasonable to conclude that, given the seriousness of the charges against him and the fact that the Applicant was still “suspended” by the Respondent, he did not make an inquiry in relation to his employment status during this time. [41] Further, the Applicant submitted that his bail conditions restricted his ability to communicate with the Respondent. I am satisfied this complicated his ability to communicate regarding his employment. [42] The criminal charges against the Applicant were dropped on 6 October 2022. At that stage, the Respondent still had not communicated or advised the Applicant that his employment had been terminated. [43] The Applicant made this application, on 11 November 2022, following the guidance of the case law outline above, I have concluded that the date on which the dismissal of the Applicant came in effect was the date on which he made the decision to file this application, being 11 November 2022. Conclusion [44] As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”8 -- 6 of 7 -- [2023] FWC 1862 7 [45] As I found above, the dismissal was never communicated to the Applicant and, accordingly, I am satisfied that the date of lodgement must, in light of the Respondent’s insistence that there has been a dismissal, be relied upon for the date of effect. Therefore, I am satisfied that the application was not filed out of time. [46] The application having been made within 21 days of the date on which the dismissal took effect, I do not need to consider the existence of exceptional circumstances or whether to allow a further period for the application to be made. The matter will now be referred for further directions. COMMISSIONER Appearances: E Morgan of Savannah Legal for the Applicant. N Vauthier, Respondent. Hearing details: 2023. Perth (by video): May 3. Printed by authority of the Commonwealth Government Printer <PR764661> 1 Hearing recording, 23:30 - 24:50. 2 Print T3496, [24]. 3 [2016] FWCFB 5500. 4 [2016] FWCFB 5500, [48]. 5 [2016] FWCFB 5500, [51]-[52]. 6 [2016] FWCFB 5500, [58]. 7 [2011] FWA 2154, [32]. 8 [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. -- 7 of 7 --