A former Services Australia worker dismissed after she was jailed on terrorism funding charges has gone to the Federal Court, alleging unfair dismissal.
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Linda Merhi, 43, spent nearly two years in prison before being discharged by a court over five charges of knowingly collecting funds for terrorist organisation Islamic State.
Upon her release in November 2019, she emailed her boss about her job and found she'd been sacked in July of that year.
A phone call and email the following week flagged her opposition to her termination but it still took until mid-February 2020 for her to lodge an unfair dismissal claim.
The Fair Work Commission's refusal to hear the case, due to the delay in it being filed and a lack of exceptional circumstances, is now subject of Federal Court proceedings.
"She was physically capable of (working) but because of the due process, could not attend her employment," lawyer Michael Ayache told the court on Wednesday.
"Persons in her position would benefit from guidance about whether a person subject to due process (is) capable of being dismissed."
Ms Merhi wasn't like workers sentenced to jail time and had bail refused on charges of which she was ultimately acquitted, Mr Ayache said
"Either way, she can't do the work," Justice Anna Katzmann said.
"The full bench (of the FWC) considered those matters."
The full bench ruled Ms Merhi was well beyond the three-week window in which unfair dismissal claims can be lodged, even if the clock was started when she called and emailed her employer in December 2020.
It also said a finding that the case was "unusual" didn't mean it was of the "exceptional circumstances" that permitted the commission to ignore the delayed filing and hear the case.
While arguing the commission had made an error of law, Mr Ayache was unable to point Justice Katzmann to any previous cases to support his case.
"(It's an error of law) to the extent a person is not a person who is unable to perform their duties," he said.
"You say a person who is in jail is able to perform her duties?" the judge queried.
"I wouldn't say that as a general rule," Mr Ayache replied. "(But) this is a person who is involuntarily detained, pending determination of charges."
The Commonwealth, which argues the Federal Court should dismiss the appeal, said Ms Merhi's arguments ran contrary to case law.
Justice Katzmann reserved her decision.
Australian Associated Press
