s.536LU - Application for unfair deactivation or unfair termination remedy

Application made under s.536LU - extension of time - application dismissed

• [1] Mr Falah Al-Hamidi (Mr Al-Hamidi/Applicant) has made an application under s.536LU of the Fair Work Act 2009 (Cth) (Act) in which he alleges that he was terminated by CEVA Logistics (Australia) Pty Ltd (CEVA/Respondent) in contravention of Part 3A-3 of the Act. Section 536LU(3)(a) requires such applications to be made within 21 days after the deactivation or termination took effect, or within such further period as the Commission allows under s.536LU(4). Mr Al-Hamidi's dismissal occurred on 11 August 2025. The 21-day period ended on Monday, 1 September 2025. The application was lodged on 9 September 2025, eight (8) days out of time. For the application to proceed, Mr Al-Hamidi requires an extension of time. The Commission may allow a further period only if it is satisfied that there are "exceptional circumstances", taking into account the matters in s.536LU(4)(a)-(g).

• [2] As to the reason for the delay (s.536LU(4)(a)), Mr Al-Hamidi said that after he was terminated on 11 August 2025, CEVA gave him 30 days to sell his fleet position. Mr Al-Hamidi said he feared that initiating a complaint would jeopardise the sale because CEVA retained control over approving the buyer. Mr Al-Hamidi contended that he acted in good faith, attempting to resolve the matter internally. He further contended that on 3 September 2025, he formally requested a review of the termination and assistance with the fleet sale. He claimed that he travelled to Melbourne to meet with CEVA representatives but was informed via email that the matter was closed, and further communication would be by email. Mr Al-Hamidi further contended that he later discovered that CEVA had transferred his position without his final consent or agreement.

• [3] I do not accept that holding a fear that lodging an unfair termination claim might jeopardise a sale that arises from a contractual term, is an exceptional reason for delaying that lodgement. There are avenues available to Mr Al-Hamidi if his rights were breached. Mr Al-Hamidi's situation was not dissimilar from that of an employee who is concerned that they might get a bad reference from an employer against whom they may choose to lodge an unfair dismissal action. These situations often arise as a consequence of initiating proceedings and are not exceptional; such a situation does not constitute "exceptional circumstances" that would prevent the timely lodgement of an unfair termination or unfair dismissal claim. I do not accept that this prevented or seriously impeded the possibility of timely lodgement of the F90 application form. In my assessment, the reason for delay weighs against a conclusion that there are exceptional circumstances in this case.

• [4] Mr Al-Hamidi stated that he was made aware of his dismissal on 11 August 2025.[1] I find that this is a neutral consideration pursuant to s.536LU(4)(b).

• [5] As to the other mandatory considerations, I accept that Mr Al-Hamidi took other action to dispute the dismissal by asking the Respondent, on 3 September 2025, to review his termination, albeit this was also after the 21-day period for lodgement (s.536LU(4)(c)). This weighs marginally in favour of an extension. As submitted by Mr Al-Hamidi, I do not consider that CEVA was prejudiced by the delay with the relatively short delay in this case (s.536LU(4)(d)), nor do I consider that there are any matters that are relevant to fairness between Mr Al-Hamidi and other persons in a like position (s.536LU(4)(f)). I consider these to be neutral factors.

• [6] As to the merits (s.536LU(4)(e)), Mr Al-Hamidi submitted that his termination was based on vague and unsupported claims. Mr Al-Hamidi's substantive application contended that he was terminated for tyre spinning and speeding in the compound but that CEVA failed to provide specific evidence of this conduct by Mr Al-Hamidi. I consider that Mr Al-Hamidi has an arguable case; however, a more detailed assessment is not possible given the limited information before me. I regard the merits as a neutral consideration.

• [7] As to the processes specified in the Road Transport Industry Termination Code (Code) (s.536LU(4)(g)), Mr Al-Hamidi submitted that CEVA did not follow the Code. He submitted that they did not give prior warnings, follow the dispute resolution steps or apply any of the procedural safeguards in the Code prior to the termination. This was disputed by CEVA who claimed that the Applicant was given two previous written warnings that put the Applicant on notice that the contract could be terminated. I consider that Mr Al-Hamidi has an arguable case; however, a proper hearing and assessment of all the evidence would be required and, for the purposes of an extension of time assessment, it has previously been found that the Commission "should not embark on a detailed consideration of the substantive case".[2] I regard the processes specified in the Code as a neutral consideration.

• [8] The Commission can extend the time for making an unfair termination application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s.536LU(4), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

[2] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

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