1
Fair Work Act
2009
s.365—General protections
Dr Waqqas Ahmad
v
MPA Engineering Pty Ltd
(C2020/3095)
COMMISSIONER YILMAZ MELBOURNE, 26 AUGUST 2020
Application to deal with contraventions involving dismissal - application made outside the
prescribed 21 days – alleged sham contractor arrangement - whether there are exceptional
circumstances - extension of time denied.
[1] On 1 May 2020, Dr Waqqas Ahmad lodged an application pursuant to s.365 of the
Fair Work Act 2009 (the Act) against MPA Engineering Pty Ltd. Dr Ahmad submits he
commenced working for his employer on 16 August 2019 and his dismissal took effect on 12
November 2019. MPA Engineering Pty Ltd (MPA) submit Mr Ahmad was engaged through
his business, Doctors of Optimization Pty Ltd trading as PLC SCADA Skills (Doctors of
Optimization) to perform a package of work, and when Doctors of Optimization failed to
meet the milestones in the contract, the contract was formally terminated on 12 November
2019.
[2] Dr Ahmad submits the contract was a sham, that the offer was deceptive and
misleading and that he was pressured to accept the contract.
[3] Dr Ahmad was an unsuccessful applicant for the position of principal control engineer
in early August 2019. In his covering letter Dr Ahmad stated, “I am even available on an
hourly basis and have a pty ltd setup for invoicing”. It was on this basis that MPA approached
Mr Ahmad for a discrete package of work and an agreement was entered into with Doctors of
Optimization.1
[4] Section 366(1) of the Act requires that an application under s.365 be made within 21
days after the dismissal took effect, or in such further time as the Commission may allow. The
application was lodged 150 days after the 21-day statutory time limit, or a total of 171 days
after dismissal.
1 Respondent’s outline of argument at Q1a.
[2020] FWC 4475 [Note: An appeal pursuant to s.604 (C2020/6663) was
lodged against this decision - refer to Full Bench decision dated
8 October 2020 [[2020] FWCFB 5365] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5365.htm
[2020] FWC 4475
2
Applicant’s submissions
[5] Dr Ahmad submits he is a recent immigrant and was offered a fixed price, time barred
contract, not as an employee but as an independent contractor. He submits when he signed the
contract he had intended to work as a sub-contractor, but the “workflow’ was dependent
requiring direction, control, collaboration and integration with the work conducted by the
project manager’s team.2 This action, he submits was indicative of an employer/employee
relationship, despite his “resistance against it”.3
[6] He submits the arrangement was a sham, enabled because the company had resources
and that it took advantage of him being a recent immigrant.
[7] On 29 October 2019, Dr Ahmad received a letter of intent to terminate the contract
with 7 days’ notice.
[8] On 5 November 2019, Dr Ahmad received a final letter to terminate the contract
effective from 12 November 2019.
[9] Dr Ahmad submits MPA refused to pay his invoices and made “baseless allegations”
concerning his work.
[10] On 19 November 2019, Dr Ahmad sent a letter of demand to MPA regarding their
conduct, alleging a sham sub-contract arrangement and demanding dispute resolution. MPA
responded on 26 November 2019 indicating it would conduct a report against the work
completed by Dr Ahmad. On 28 November 2019, Dr Ahmad sent another letter of demand for
the dispute to be settled in the Fair Work Commission.
[11] Correspondence was sent between the parties over December 2019 to March 2020,
when MPA obtained legal representation and arranged for resolution of the dispute through an
arbitrator sourced through the Resolution Institute. Attempts to resolve the dispute were
unsuccessful through the arbitrator and that process came to an end in May 2020.
[12] Dr Ahmad submits the behaviour towards him contravened s.344 undue influence or
pressure regarding his workplace rights and relies on ss.357, 358 and 359 pursuant to Division
6- sham arrangements.4
[13] Dr Ahmad is seeking the following remedies:
Penalise MPA;
Recover his sub-contractor invoiced amounts;
Compensation for damage caused to his personal and professional life; and
Compensation for loss of permanent employment opportunity due to the prolonged
“sham” contractor arrangement.5
2 Applicant’s form F8 at Q1.4.
3 Ibid.
4 Ibid at Q3.2.
[2020] FWC 4475
3
Respondent’s submissions
[14] MPA submit it engaged Doctors of Optimization on a contract basis to complete a
specific package of work for Aquatec Maxcon Pty Ltd relating to a water treatment plant in
Charters Towers.6
[15] MPA submit the termination of the contract was a gradual process, with Dr Ahmad
invited to a meeting in Ipswich on 22 September 2019 to discuss their concerns regarding his
ability to deliver the contracted package of work. MPA submit the discussion gave them no
confidence that Dr Ahmad had the capability to deliver the work. Following this meeting
MPA sent an intention to terminate and followed up with a formal notice of termination.7
[16] MPA submits it paid Doctors of Optimization progress payments. On receipt of the
invoice of 7 November 2019, MPA wrote to Doctors of Optimization advising “I can confirm
that invoice 2019MPA is entirely rejected on the ground that the work is not complete or
proven. I can confirm that we have paid you in excess of the amount of completed work”.8
[17] MPA submit Dr Ahmad was invited to a meeting in Sydney on 17 December 2019 to
resolve outstanding issues. Doctors of Optimization declined the meeting and said all
communication should be in writing.
[18] MPA submit Doctors of Optimization was bombarded with emails to MPA, its
directors and Aquatec Maxcon Group so it reached out to an independent arbitrator to resolve
the dispute. MPA submit Dr Ahmad failed to dial in for the conference call.9
[19] MPA submit that the termination of the contract with Doctors of Optimization is due
to its failure to meet the contract terms. MPA engages contractors from time to time to meet a
surge in capacity or for technical skills not within the group.10
[20] In relation to Dr Ahmad’s submission that he was taken advantage of for being an
immigrant, MPA submit it has a diverse workforce with 2 persons engaged on the project
where it is their first position in Australia. MPA submit it understands that Dr Ahmad has a
work history in Australia since 2010.11
Consideration
[21] General protections applications involving dismissal must be made within 21 days.
5 Ibid at Q2.1.
6 Respondent’s outline of argument at Q1b.
7 Ibid.
8 Ibid at Q1e.
9 Ibid and transcript at 27:08.
10 Ibid at Q1f.
11 Ibid.
[2020] FWC 4475
4
[22] 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
[23] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star
Group Pty Ltd (Nulty)12 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.”13
[24] 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
[25] The general protections involving dismissal application was lodged with the
Commission on 1 May 2020, 150 days late.
[26] Dr Ahmad details his communications and allegations against MPA and critiques the
efforts made by MPA to secure an independent arbitration.
[27] Dr Ahmad’s submissions also refer to an application he made to the Australian Human
Rights Commission.
[28] Dr Ahmad submits the dispute with MPA resulted in mental depression and anxiety.
He tendered in evidence referrals to medical practitioners, reference to appointments, copies
of his prescription medicine and a copy of his Health Care Card.
12 [2011] FWAFB 975.
13 Ibid at paragraph 13.
[2020] FWC 4475
5
[29] None of the evidence tendered by Dr Ahmad explains the delay in filing the general
protection application. The medical evidence does not support a submission that he had been
impaired from filing on time, although it is noted that Dr Ahmad did not argue this point.
Further the material tendered demonstrates that his general practitioner referred him for
review because he presented with anxiety and depression due to his loss of job in October and
is on Centrelink.
[30] While Dr Ahmad was busy with his email communication (some 400 according to his
estimation) to MPA, its directors and Aquatec Maxcon Group, except during the “festive
season”, there was no credible explanation provided for the delay in filing the application.
[31] There must be a credible reason for the delay.14 Having regard to his submissions and
evidence, I am not satisfied that Dr Ahmad demonstrated credible reasons regarding this
consideration. I find the reasons given for the delay do not weigh in his favour.
Steps taken to dispute the termination
[32] It is not in contention between the parties that Dr Ahmad disputed his termination of
contract. Steps were initiated by MPA to resolve the dispute which Dr Ahmad did not
participate in. Instead Dr Ahmad sent some 400 emails detailing his demands and allegations,
a number of which are difficult to follow.
[33] In principle this consideration weighs in Dr Ahmad’s favour, although his failure to
participate in an independent arbitration was unhelpful and unnecessarily prolonged the
dispute. Dr Ahmad’s submissions suggest he was distrusting of the process and preferred to
have the dispute resolved in this Commission but filed the application 171 days after his
contract was terminated. Dr Ahmad submits the actions of MPA frustrated his filing of this
application, yet no evidence was tendered to support this contention. The evidence
demonstrates that Dr Ahmad overly complicated the resolution process and misread
correspondence. I note and concur with the assessment of Dr Paul, “if somebody send
message he always feels some one tricking him”.15
Prejudice to the employer
[34] Dr Ahmad submits the delay has not caused disadvantage or prejudice to MPA. He
submits that MPA delayed resolution and frustrated his intended legal action. In my view on
balance of the submissions and materials, I do not agree with Dr Ahmad that MPA frustrated
the filing of his application. I also do not agree that the delay has not caused disadvantage to
MPA. The communication of some 400 emails by Dr Ahmad which he demands recognition
for, has not assisted resolution, but rather irritated and frustrated MPA.
[35] MPA submit Dr Ahmad’s email traffic and non-engagement in the appropriate arena
for this commercial dispute has been wasteful and arduous.16 MPA submit that to finalise the
shortcomings of Dr Ahmad’s work it had to contract other resources and the failure to meet
14 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
15 Applicant’s outline of argument attachment - medical referral by Dr Paul of 25 March 2020.
16 Respondent’s outline of argument at Q1h and transcript at 27:12.
[2020] FWC 4475
6
the contractual milestones resulted in reputational damage and cost. MPA did not provide
substantive evidence of prejudice but provide did oral evidence of the shortfall in work
delivered by Dr Ahmad in respect to the contracted project.
[36] Consequently, I am satisfied that MPA demonstrated prejudice. The delay of 171 days
is substantial and together with the efforts and cost incurred by MPA to independently
arbitrate the dispute I accept is prejudice to MPA.
Merits of the application
[37] Dr Ahmad submits MPA offered a sham contractor arrangement, which he felt
pressured to accept. While he submits the arrangement was a disguised employment
relationship, he resisted it.
[38] Dr Ahmad in his submissions appears to rely on his expertise and presses the point
that he is entitled to his contractor fees yet is pursuing loss of wages and alleges the contract
was a sham. The submissions pose contradictions which Dr Ahmad does not adequately
explain.
[39] Dr Ahmad submits that his employment was misrepresented as an independent
contractor, which rests on s.357 of the Act, which provides:
(1) A person (the employer) that employs,… an individual must not represent to the
individual that the contract of employment under which the individual is, or would be,
employed by the employer is a contract for services under which the individual
performs, or would perform, work as an independent contractor.17
[40] It is not disputed that a commercial agreement was entered into by Doctors of
Optimization (which has its own ABN) and MPA, Dr Ahmad had specialist skills that MPA
sought to engage for specified work, that Doctors of Optimization invoiced MPA for work
according to milestones provided for in the commercial contract, that Dr Ahmad did not
receive paid holidays or sick leave and he controlled how he performed the work.
[41] There is disputation between the parties regarding the quality of the work, whether Dr
Ahmad had satisfactorily been given detail concerning scope of works, whether the work of
other team members impacted the capacity of Dr Ahmad to deliver his work and whether a
request that Dr Ahmad perform his work on site (which Dr Ahmad resisted) is indicative of an
employment relationship.
[42] There are numerous other allegations made by Dr Ahmad, all without any evidence.
[43] The contested evidence relates to the commercial relationship and whether Dr Ahmad
felt pressured to sign the commercial agreement, rather than whether there is an independent
contractor relationship which should be properly characterised as an employment relationship.
17 S.357 (1) of the Fair Work Act 2009.
[2020] FWC 4475
7
[44] I have not tested the evidence and it is not my position to do so in an extension of time
application.18 However, I am not persuaded that Dr Ahmad has a meritorious case.
[45] Having considered the submissions and evidence tendered, on the balance of
probabilities, I do not consider that Dr Ahmad has established that the substantive application
has merit.
Fairness between the person and other persons in a like position
[46] Neither party addressed this consideration adequately. Consequently, I find this
consideration neutral.
Conclusion
[47] In this instance, I need to be satisfied that there are exceptional circumstances
warranting an extension of time.
[48] On balance of all the considerations, the circumstances do not weigh in favour of Dr
Ahmad.
[49] Having considered all of the evidence and submissions against each of the factors set
out in s.366(2), I am satisfied that there are no exceptional circumstances warranting the
granting of a further period for the making of an application under s.366(2). Accordingly, the
matter is dismissed.
COMMISSIONER
Appearances:
Mr Waqqas Ahmad for himself
Mr Kevin Smith for the Respondent
Hearing details:
2020
Melbourne (By Telephone)
7 July 2020
Printed by authority of the Commonwealth Government Printer
18 Miller v DPV Health Ltd [2019] FWC 3979.
OF THE ORK COMMISSION THE SE
[2020] FWC 4475
8
PR722110
