A security officer dismissed for abandonment of employment has taken his case to the Fair Work Commission. Why? The officer contends that the reason he could not turn up to work was because he was being held in detention pending criminal charges. Locked Up Dismissal makes for interesting reading.
To most, this sounds like a pretty good excuse for why you can’t turn up to work. And the employee actually had all his charges dropped. However, the employer argued to the Fair Work Commission that the security officer’s unfair dismissal claim should be thrown out. Namely, because it was submitted beyond the time limit. Let’s take a look at the events of this abandonment of employment unfair dismissal case – Muhammad Ali Qureshi v Spotless Services Australia Limited .
Security officer held in police detention is dismissed for abandonment of employment
This unfair dismissal case involves Mr Muhammad Ali Qureshi, an immigrant to Australia. On 16 May 2022, he began working as a full-time security officer for Spotless Services Australia. The company provides security services to the South Australian government, including the health sector.
The central event of this abandonment of employment case took place on the night of Sunday 2 April 2023. After finishing his shift at around 10p.m, Mr Qureshi returned home to find the police at his doors. He was spoken to by the officers then taken to Port Adelaide Police Station. There, Mr Qureshi was charged with certain offenses. The exact offences he was charged with were not revealed in Fair Work Commission documents pertaining to this unfair dismissal case.
Mr Qureshi was taken to a cell, where he was told he would spend the night, and the next day, face a magistrate. Police confiscated his mobile phone. But Mr Qureshi was allowed to make one phone call, which he made to a friend. He told his friend about the trouble he was in. And he asked his friend to inform his friends, family and “if possible” his workplace about his situation. Mr Qureshi specifically asked his friend to inform his workplace as he was rostered on to work the next day and throughout the week.
Employee attempts to make contact with his employer
On 3 April 2023, Mr Qureshi appeared before a magistrate via conference call. The magistrate ordered that he be placed in custody. From 3 April to 26 April, Mr Qureshi remained in the Adelaide Remand Centre, under the control and supervision of the authorities. His phone had been confiscated and he did not have internet access.
Critical to this abandonment of employment case is that during his time in remand, Mr Qureshi asked the authorities that he “be permitted to speak to my workplace”. Mr Qureshi did not specify a specific work contact for the authorities as he did not have access to the numbers in his phone. He then actioned a written request via the system used in the remand centre. This request was neither approved nor declined, and it was still “pending” at the time of his release.
Employee makes further attempts to contact workplace
Mr Qureshi’s time at the remand centre took a toll on his mental health. He met with a social worker and psychiatrist. During this meeting he claimed to have requested yet again to speak to someone from his workplace. Then in his final week of detention, Mr Qureshi again requested to speak to his workplace during a meeting with a solicitor. However, the solicitor told him that his priority was to deal with the police charges made against him, not his job.
Employer attempts to contact the employee
During his period in remand, Spotless Services Australia, unaware of Mr Ali Qureshi’s situation, tried to contact him. The company attempted to call him three times on 4 April 2023, receiving no answer. It attempted to call him again on 8, 9 and 10 April, with the calls going to Mr Qureshi’s voicemail.
Unbeknownst to Mr Qureshi at the time, a person who claimed to be his wife called Spotless Services Australia on 11 April 2023. This individual stated that Mr Qureshi was in India for at least a month. However, this was clearly untrue as he was in detention at Adelaide Remand Centre.
Employer dismisses employee for abandonment of employment
On 11 April 2023, Spotless Services Australia sent a letter to Mr Qureshi. The letter outlined that if he did not make contact by 13 April, the company would consider him to have abandoned his employment. Being in detention at the time, Mr Qureshi of course did not receive this letter.
Critical to this unfair dismissal case is that on 18 April 2023, the employer sent another letter to Mr Qureshi. This letter stated that his employment had ended due to abandonment of employment. The company outlined that Mr Qureshi had repudiated his employment contract by failing to report for rostered shifts or make contact with them. This letter was sent via email and by post. It was sent to Mr Qureshi’s correct email address. However, the posted letter was address to his former address. As he was still in detention, Mr Qureshi did not receive the letter nor the email. And he was not informed of their existence by anyone.
Charges are dropped and Employee is released
On the evening of 26 April 2023, Mr Qureshi was released from detention. This was after the police dropped the charges against him. He felt very unwell and traumatised by the whole experience. He had been placed on anti-depressants and after seeing a doctor, he was declared unfit for work from 26 April to 12 May.
After his release, Mr Qureshi also contacted his friend to see if he had made contact with Spotless Services Australia during his time in detention. However, his friend told him that he had not made contact. Unfortunately, Mr Qureshi was unaware that he had already been dismissed due to abandonment of employment.
Employee finds out he was dismissed for abandonment of employment
Due to being in detention, Mr Qureshi had fallen behind on his rent, car loan and health insurance payments. He was also not able to pay his internet service provider, and so his access had been disconnected. He eventually made payments and on 4 or 5 May his internet was reconnected.
It was then that he discovered the emails from Spotless Services Australia. Including the letter of dismissal for abandonment of employment. Feeling unfairly treated and wanting to resolve the situation without legal action, Mr Qureshi attempted to text and call the employer multiple times. However, he received no response.
“My profile is fully clean:” Employee pleads for his job back
On 7 May 2023, he sent an email to Spotless Services Australia in which he explained the “exceptional circumstances”. That he was “caught in without my fault.” Mr Qureshi outlined that when he had been released from detention, he was told by his doctor that he was not medically fit to work until 12 May. And he outlined that all the charges against him had been dropped and that his “profile is fully clean.”
“Therefore; per the Fairworks [sic] Laws and principles of my contract with Spotless/Downer group, my Job a security officer at NRAH should be resume [sic] from the date I am medically fit to start the work,” Mr Qureshi wrote in the email.
Employer doubles down on dismissal for abandonment of employment
The next day, a HR representative from Spotless Services Australia emailed a reply to Mr Qureshi. The representative explained that he had repudiated his employment contract due to abandonment of employment. And that his last day of employment was 3 April 2023.
Replying via email, Mr Qureshi once again pleaded for his job. He stated that he “did not repudiate anything” and while in detention, did not have access to any “communication channels to contact my workplace.” He emphasised that “legally and ethically it was not in my control.” And that it was his “right to resume with my duties” at Spotless Services Australia. The company did not respond to this email.
Employee makes an unfair dismissal claim with the Fair Work Commission
After getting no response, and realising he had been treated unfairly, Mr Qureshi sought advice from friends. They told him that he had the option to file an unfair dismissal claim with the Fair Work Commission. The issue was, however, that because Mr Qureshi had been in detention and unwell upon release, he had missed the deadline to submit an unfair dismissal claim.
The Fair Work Act 2009 states that an employee must submit their unfair dismissal claims within 21 days of their dismissal. This is a deadline that is strictly enforced by the Fair Work Commission. It is only in rare circumstances are employees given a time extension. Mr Qureshi had filed his claim online on 19 May 2023, almost two months after his dismissal for abandonment of employment on 3 April.
Employee argues for validity of his unfair dismissal claim
The central issue of this abandonment of employment unfair dismissal claim is when exactly Mr Qureshi was dismissed. He argued to the FWC that he had not in fact submitted his claim late as the 21-day count should have started on 4 or 5 of May. That was the day that he had first read the dismissal letter from Spotless Services Australia, which had been sent on 18 April.
If the Fair Work Commission could not accept this start date, Mr Qureshi argued that he should be granted a time extension for his unfair dismissal claim. He cited the exceptional circumstances that prevented him from submitting on time. Namely, that he was in detention and not able to contact his employer. As well as not being aware of his dismissal. Also, that after being released, he did not have internet access, was medically unwell and tried in vain to contact his employer.
Employer argues for unfair dismissal claim to be rejected
Spotless Services Australia argued to the Fair Work Commission that Mr Ali Qureshi was not in fact dismissed. But rather, that his employment ended when they accepted his contractual repudiation. This, the company contended, is not a dismissal under the Fair Work Act 2009. And therefore, Mr Qureshi would not be illegible to make an unfair dismissal claim.
If the FWCcould not accept this argument, the employer argued that Mr Qureshi should not receive a time extension to submit his unfair dismissal claim. This is because the company had on 18 April notified him by post and email that his employment had ended on 3 April. Therefore, this was the date of his dismissal, if indeed there was a dismissal.
Spotless Services Australia said that Mr Qureshi had reasonable access to his emails once he was released from remand. And that he could have sought assistance from friends or used public internet services to check his inbox. They claim that he did not take reasonable steps to notify his supervisors or managers of his circumstances during or after his release.
Fair Work Commission determines the true date of dismissal
The Fair Work Commission had to determine whether the dismissal took effect on 3 April 2023, as claimed by Spotless Services Australia. Or if it took effect on 4 or 5 May 2023. This was when Mr Qureshi became aware of it via the letter. It also had to assess whether exceptional circumstances existed to warrant an extension of time for filing the unfair dismissal application.
With regard to Mr Qureshi’s date of dismissal, the Fair Work Commission stated that a dismissal does not take effect until it is communicated to the dismissed person in “clear and unambiguous terms.” And more importantly to this case, “where communication in those terms is reasonably accessible to the person dismissed.”
While the dismissal email hit Mr Qureshi’s inbox on 18 April, the Fair Work Commission stated that it was not reasonably accessible to him on this date. This was because he was in detention. Given that Mr Qureshi was released on the evening of 26 April, it was determined that the email was not reasonably accessible to him until 27 April.
Fair Work Commission considers reasons for delayed submission
The Fair Work Commission therefore ruled that 27 April 2023 was the date that Mr Qureshi’s dismissal took effect. “That being so, the application was filed twenty-two days after the dismissal took effect,” the Fair Work Commission stated. “It is one day out of time.” The Fair Work Commission then considered the validity of the reasons Mr Qureshi cited to explain the delay in submitting his unfair dismissal claim. The Fair Work Commission accepted that:
- He had been in a “period of prolonged detention.”
- When he was released, he “was unwell” and “cognitively impaired” due to the sedative effect of his depression medication.
- Had taken multiple steps to contact Spotless Services Australia. And that he it was “not reasonable” for him to commence with an unfair dismissal claim while attempting to engage in a dialogue with the company.
- While he took a week to lodge his unfair dismissal claim after being told by the Fair Work Commission about his right to do so. This was for the understandable reason that he wanted to complete it correctly.
Fair Work Commission grants unfair dismissal claim time extension
Considering all these factors, the FWC found that “the reasons for delay materially weigh in favour of a finding of exceptional circumstances.” The Fair Work Commission therefore granted a time extension for the lodgement of Mr Qureshi’s unfair dismissal claim.
“It is unusual that an employee is placed in custody for a twenty-three-day period with the consequence that, upon release, they discover their employment to have ended,” the Fair Work Commission said.
“Whilst a custodial period is not, of itself, a basis to extend a statutory time limit, that unusual circumstance was a traumatic experience that gave rise to [Mr Qureshi] being unwell and on medication when released whilst, at the same time, trying to ascertain what had happened to his job,” the Fair Work Commission added. The Fair Work Commission stated that Mr Qureshi’s unfair dismissal claim will next proceed to conciliation. And if the matter is not resolved then, it will proceed to a formal hearing.
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