Adnan Ersamuk v Toll Global Express Services
[2018] FWC 3667
•25 JUNE 2018
| [2018] FWC 3667 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adnan Ersamuk
v
Toll Global Express Services
(U2018/3055)
| COMMISSIONER GREGORY | MELBOURNE, 25 JUNE 2018 |
Application for relief from unfair dismissal – jurisdictional objection – extension of time – no valid reason for delay – application dismissed.
Introduction
Mr Adnan Ersamuk was employed by Toll Global Express Services (Toll Global) for approximately five years until his employment was terminated on 14 February 2018 with immediate effect. The Fair Work Act 2009 (Cth) (the Act) provides that an unfair dismissal application must be filed within 21 days of the date of termination. In this case that date was 7 March 2018, however, Mr Ersamuk’s application was not filed until 22 March 2018, being 15 days outside of the timeframe prescribed in the Act.
Mr Ersamuk claims he was overseas at the time and not able to make application within the 21 day period. He accordingly now seeks an extension of time in which to make application. This decision deals with that application.
Mr Ersamuk appeared on his own behalf with the assistance of an interpreter. Ms Laura Dobson, Senior Manager, Employee and Industrial Relations at Toll Group - Corporate, appeared on behalf Toll Global.
The Issues to be Determined
The Act provides that an unfair dismissal application is to be lodged within 21 days of the date of dismissal. However, s.394(3) also provides that the Commission may extend the time for making application if it believes there are “exceptional circumstances” existing that warrant an exercise of this discretion, taking into account each of the following considerations:
“(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”[1]
The Commission is accordingly now required to consider whether “exceptional circumstances” exist, having regard to each of the matters in s.394(3), to warrant the exercise of the discretion to grant Mr Ersamuk additional time in which to make application.
The Evidence and Submissions
Mr Adnan Ersamuk
Mr Ersamuk provided a written statement which was supplemented in large part by his responses to questions asked of him by the Commission.[2] He indicated that he was dismissed from his employment on 14 February 2018 with immediate effect. He had been previously off work since the time of an earlier incident while an investigation into that matter took place. He indicated in response to a question from the Commission that a disciplinary meeting took place on 16 November last year and he was stood down on full pay as an outcome from that meeting.[3] He then attempted to make contact with his employer after this time to find out what was happening but they refused to take any of his phone calls. He again indicated in response to a question from the Commission that these calls were variously directed to the Bulk Manager, the Freight Manager, and his Supervisor.[4] He said that he was told in response to those calls that someone from HR would call, but no one did.[5] He was also unable to make contact in order to organise to take annual leave and said, “I felt like Toll had imprisoned me in my home since I couldn’t go anywhere even though I had so much annual leave owing.”[6]
Mr Ersamuk said his mother, who lives in Turkey, then became very ill with cancer and “I was worried that I wouldn’t see her if she should die.”[7] He said that he then travelled to Turkey where he remained for around 4 weeks.[8] He left Australia on 2 February and returned on 5 March. He said that during this time he became aware that his employment had been terminated when a significant amount of money was transferred into his bank account, which he assumed was a pay out of his accrued annual leave entitlement.[9] He also indicated in cross examination that he was told about the termination letter dated 14 February by a Union representative during the time he was in Turkey, and he acknowledged that the Union was talking to him by telephone during this time.[10] However, he also indicated that he only saw the letter when he returned home on 5 March.[11] He also indicated in response to a question from the Commission that he did not inform anyone at Toll Global that he was travelling overseas because no one would answer his calls.[12] He did, however, tell the Union delegate that he was travelling to Turkey and would be away for a period of time.
He also said that when he returned from Turkey he met with the Union delegate from Toll and it was agreed they would press for him to receive a redundancy payment.[13]
He also acknowledged in cross-examination that he had not provided any evidence about his mother’s illness, but said “I didn’t provide any evidence regarding my mother’s ill health because all the evidence regarding my mother’s ill health is in Turkey and is in Turkish.” He also denied he had simply gone to Turkey on holiday.[14]
Mr Ersamuk also raised an issue about whether the application that was now before the Commission dated 22 March 2018 had actually been signed by him. He also said he had been in discussions with staff at the Commission in April about making application, and had been told he had been granted an extension of time in which to make application.[15]
It is also noted that Mr Ersamuk takes issue with all the circumstances involved in the previous matters that have been referred to by Toll Global about various instances of misconduct at work, and the warnings given to him in response.
Toll Global
Toll Global provided the following submissions about the circumstances involved in this matter. On 16 November last year Mr Ersamuk was asked to attend a disciplinary meeting to discuss an allegation of misconduct that had been received from a customer on the previous day. He attended the meeting with a support person, being a delegate from the Transport Workers’ Union of Australia (TWU). Mr Ersamuk was then stood down on full pay pending an investigation into the allegations.
The investigation was carried out between 17 November and 10 January 2018. During this time the business regularly corresponded with both Mr Ersamuk and the TWU. The investigation was concluded on 8 February 2018, and a letter was sent to Mr Ersamuk on the same day requesting he attend a final meeting on 12 February 2018. The purpose of that meeting was to communicate the outcome of the investigation, and the decision that had been made to terminate his employment. A series of further attempts were then made to call and text Mr Ersamuk and on 12 February Toll Global wrote to the TWU to advise that it had been unable to contact Mr Ersamuk.
Mr Ersamuk failed to attend the meeting on 12 February and failed to provide any reason as to why he did not attend. Toll Global accordingly sent the letter of termination to his home address on 14 February and a copy was also provided to the TWU.
Toll Global continues to submit that the correspondence provided to Mr Ersamuk at the time he was stood down indicated that, “During your period of suspension, you will be required to make yourself available to attend any meeting at the Company’s workplace.”[16] However, it was not told he had travelled overseas and it was not aware of any attempt by him to make application for annual leave. It also submits that he could have made an unfair dismissal application online, or could have been assisted in doing so by the TWU, while he was out of the country.[17]
Toll Global also submits that his application lacks merit and highlights repeated instances of his misconduct, and a process of escalated warnings dating back to January 2016 that have been given to him. These included:
· a written warning on 8 January 2016 for misconduct involving repeatedly smoking in non-designated smoking areas;
· a written warning for misconduct on 13 July 2017 involving a sticker being placed over a CCTV camera;
· a final written warning for misconduct on 10 November 2017 involving unsafe driving following a complaint made by a member of the public; and
· the final matter, which resulted in Mr Ersamuk’s employment being terminated, being a complaint received from a customer on 15 November 2017 concerning his failure to follow a reasonable management direction and his failure to follow required process.[18]
It continues to submit that in each case it followed due process and provided Mr Ersamuk with the opportunity to provide responses to the allegations.[19] He was also assisted by a support person in each case. It submits, in conclusion, that his application lacks merit and the available evidence does not indicate that he has been unfairly dismissed.[20]
Emilia Cvetkovic
Ms Cvetkovic is a Human Resources Business Partner with Toll Holdings Limited and has primary responsibility for the Toll Express Parcel site at the Melbourne Airport. Mr Ersamuk worked at the site from January 2014 until he was stood down on 16 November 2017.
She was informed on 15 November 2017 by one of the Managers at the site about an allegation of misconduct involving Mr Ersamuk.[21] It was alleged that he had failed to follow Toll Global’s procedures and the directions provided to him in relation to the delivery of freight to a customer. The complaint by the customer alleged he had acted in an unprofessional manner at the customer’s premises.
Ms Cvetkovic said she was responsible for the subsequent investigation into the complaint, and this included obtaining responses from Mr Ersamuk about the misconduct allegations and the customer complaint.[22] The last correspondence received from Mr Ersamuk in relation to this investigation was on 8 January 2018.[23] He also provided an earlier written response on 21 November 2017. However, she was not aware of any further attempts by him to contact her or any other employee at Toll Global on any other occasions about the status of the investigation.
She also said she was not aware of him making an application for annual leave and there is no record of him having submitted an annual leave request form.[24] He had also previously completed Toll’s standard annual leave request form on other occasions and was evidently aware of the process involved in making annual leave requests. He also did not inform her, or anyone else at Toll Global, as far as she was aware that he was overseas or that he intended to travel overseas.
Ms Cvetkovic drafted the letter dated 8 February 2018 which informed Mr Ersamuk that the investigation had been completed, and directed him to attend the meeting on 12 February. The letter was sent to his home by courier. However, he did not attend the meeting, and she then attempted to contact him on the phone numbers listed in Toll’s records, but was unable to make contact. On 14 February 2018 she then prepared a letter confirming that his employment had been terminated, and arranged for the letter to be delivered to his home via courier. She did not receive any further communication from him after that time.
Consideration
As indicated, in coming to a decision in this matter I am required to take account of each of the matters in s.394(3) in deciding whether “exceptional circumstances” exist to warrant an exercise of the discretion available to the Commission to extend the time in which to make application. Previous decisions of this Tribunal and its predecessors have considered what is required to find that “exceptional circumstances” exist to justify an extension of time. The Full Bench decision in Nulty v Blue Star Group (Nulty)[25] was handed down in the context of a general protections application, however, the principles established in the decision have been held to be of wider application. The relevant extracts from the Full Bench decision in terms of the present application are set out at [13] and [14] as follows:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”[26]
The decision accordingly makes clear that “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. They should also be circumstances that are out of the ordinary course, unusual, special or uncommon. However, they need not be unique, unprecedented, or very rare, but are not circumstances that can be said to be regularly, routinely, or normally encountered. I now turn to deal with the circumstances involved in this matter, and the submissions and evidence of the parties, by reference to these authorities and the matters in s.394(3) I must have regard to.
(a) the reason for the delay
The reason for the delay in making application in this matter is essentially based on the fact that Mr Ersamuk travelled to Turkey on 2 February this year and did not return to Australia until 5 March. His evidence indicates he made this trip to visit his mother who he claims was seriously ill at the time. However, it appears he travelled to Turkey without informing Toll Global he was leaving Australia, and without making an annual leave request application. Mr Ersamuk states he was unable to make contact with anyone at Toll Global about his requirement to travel to Turkey, and was not able to make an annual leave application, although there is no evidence of this. Ms Cvetkovic’s evidence also indicates that he had made previous annual leave applications and was well aware of the process involved.[27]
While Mr Ersamuk was in Turkey, Toll Global attempted to make contact with him to discuss the outcome of an investigation into his alleged misconduct. It had been ongoing since the incident on 15 November last year. It also attempted to contact him through the TWU, who had assisted him in the recent past. When no response was received from Mr Ersamuk, Toll Global assumed he was simply ignoring its requests to meet and it proceeded to implement the decision to terminate his employment. A letter of termination was then couriered to his home address on 14 February 2018, and a copy provided to the TWU.
Mr Ersamuk said he only became aware his employment had been terminated when he discovered a significant amount of money had been transferred into his bank account, which he assumed to be a pay out of his accrued annual leave entitlements.[28] However, he also acknowledged in his evidence that he was in contact with the TWU by phone while he was in Turkey, and he had spoken to a TWU delegate, Mr Johnny Rowe. It can be presumed that the termination of his employment was discussed in these conversations, given that the TWU had previously been provided with copies of the correspondence sent to Mr Ersamuk.
Mr Ersamuk then arrived back in Australia two days prior to the expiry of the 21 day period, however, his unfair dismissal application was not lodged with the Commission until 22 March, being 15 days outside the time frame prescribed in the Act. There was some conjecture in the proceedings about whether that application was actually filed by Mr Ersamuk. However, I am satisfied that little turns on this in the context of his application being out of time because Mr Ersamuk suggested that his discussions with the Commission about lodging an unfair dismissal application occurred after 22 March this year. Therefore, this would have meant that any such application would have been lodged further out of time. In addition, there is no evidence available to the Commission that any such application was lodged.
Mr Ersamuk also stated that an employee at the Commission gave him an extension of time in which to make application.[29] I am satisfied in response that Mr Ersamuk was almost certainly mistaken about this. The Commission’s staff have no power to grant an extension of time in which to make an unfair dismissal application, and this is clearly known and understood. I therefore consider it most unlikely that Mr Ersamuk would have been given any such advice or indication.
I have no reason to doubt Mr Ersamuk’s evidence about his mother being unwell, although he provided no evidence to confirm the circumstances involving her medical condition or her present whereabouts. However, I find it difficult to accept his evidence about his inability to make contact with anyone at Toll Global in order to advise that he was required to travel to Turkey at short notice to visit his mother. I also do not accept that he was unable to make an annual leave request application. This would appear to be a most unlikely scenario, and his evidence in this context is directly controverted by that of Ms Cvetkovic, who indicated that he had made previous annual leave applications.[30]
At the time that he left Australia to travel to Turkey, Mr Ersamuk was stood down from his employment on full pay, pending an investigation into his conduct following an incident which occurred in November last year. The correspondence that was given to him at the time that he was stood down made clear that he was required to be available to attend meetings at his workplace when requested to do so. His decision to travel to Turkey meant he could not comply with this requirement.
Regardless of whether this requirement occurred at short notice, I am satisfied that Mr Ersamuk should not have left the country for an extended period of time without, at the very least, informing his employer of his intentions. He was obviously still an employee of Toll Global at the time and was not at liberty to simply travel overseas for an extended period of time without informing his employer about his intentions. At the very least, if he was required to travel at very short notice, he should have made some attempt to contact his employer to advise of his whereabouts following his arrival in Turkey. In this respect, Mr Ersamuk can be said to have been the architect of his own demise.
I am also satisfied that there were other options available to him in terms of his unfair dismissal application. He indicated that he became aware that he had been dismissed while he was in Turkey. He could have made application online at that time, or made application with the assistance of the TWU, given that his evidence indicated he was in contact with the Union delegate while he was in Turkey.[31] He then returned to Australia two days prior to the expiry of the 21 day period but, for whatever reason, his application was not lodged until some 17 days later.
(b) whether the person first became aware of the dismissal after it had taken effect
The evidence does not confirm the precise point at which Mr Ersamuk became aware his employment had been terminated. However, it does indicate that he became aware he had been terminated while he was still in Turkey. This occurred prior to the expiry of the 21 day period following the date of his termination.
(c) any action taken by the person to dispute the dismissal
Mr Ersamuk has taken action to dispute his dismissal, although it is unclear whether he took any such action during the time he was in Turkey.
(d) prejudice to the employer (including prejudice caused by the delay)
It is acknowledged that there will always be some prejudice to an employer if additional time is granted in which to make an unfair dismissal application, given that the employer will then be in a position where it will have to respond to the application.
(e) the merits of the application
It can be noted that previous Commission decisions have established that the Commission is not required to embark on a detailed consideration of the substantive case at this time. It has also been noted that while the issue of merit is important, the exercise of the discretion to grant additional time should have primary regard to the circumstances that led to the late lodgement.
However, Toll Global has provided evidence about a series of written warnings, including a final written warning, that have been provided to Mr Ersamuk in regard to his conduct over a period stretching back to January 2016.[32] It is also noted that Mr Ersamuk takes issue with the circumstances involved in each of these matters. However, the various instances of misconduct, and the warnings provided to him in each case, do suggest he will have some difficulty at the very least in establishing he has been unfairly dismissed.
(f) fairness as between the person and other persons in a similar position
I am not aware of anything that needs to be considered in this context.
Conclusion
Mr Ersamuk relies on his absence from the country as the principal reason why his unfair dismissal application was not lodged within time. He claims to have been required to travel to Turkey to visit his mother who was seriously ill.
He also claims to have not been aware of the 21 day time limit, although previous Commission decisions have made clear that ignorance of the time limit, in the absence of other circumstances, is not an exceptional circumstance that justifies an extension of time being granted.
As indicated previously, I have not sought to take issue with Mr Ersamuk’s evidence about his mother’s illness, despite the lack of any medical evidence being provided in support. However, I am satisfied that these circumstances do not act to relieve him of all other obligations. He was still an employee of Toll Global at the time he travelled to Turkey, even though he was stood down at the time on full pay. At the time that he was stood down he had also been informed that he was required to hold himself out to be available to attend any meetings with his employer.
It is also accepted that he may have been frustrated by the time taken to conclude the investigation into his earlier conduct. The time period involved does seem to have been unnecessarily long. However, I am not satisfied that these circumstances entitled him to simply disregard his obligations to his employer. If he needed to travel to Turkey at short notice, as a matter of urgency, he should at least have made a legitimate attempt to inform his employer about this, and to have his leave approved in advance. His failure to do so and the fact that his employer did not know of his whereabouts created, in large part, the circumstances whereby his application was not lodged within time. Mr Ersamuk then compounded the problem by not acting promptly when he became aware his employment had been terminated. He apparently did nothing while he was out of the country, even though there were options available to him at the time. In addition, his application was not lodged with the Commission until 17 days after he had returned to Australia.
I am accordingly not satisfied that Mr Ersamuk had a valid reason for the delay in making application, and the delay was in large part a creation of his own doing. I have also had regard to the merits of the application and again, as indicated previously, it would appear that he would have some difficulty in this context in establishing that he has been unfairly dismissed. However, I also emphasise at this point that I am not by any means expressing a concluded view about the respective merits of his application based on the material now before the Commission.
I am not satisfied, in conclusion, for the reasons indicated, that it is appropriate to exercise the discretion to extend time in which to make application. Mr Ersamuk’s application is accordingly dismissed.
COMMISSIONER
Appearances:
A Ersamuk on his own behalf.
L Dobson on behalf of the Respondent.
Hearing details:
2018.
Melbourne:
May 25.
<PR608326>
[1] Fair Work Act 2009 (Cth) s 394(3).
[2] Witness statement of Applicant, received 21 May 2018.
[3] Transcript, 25 May 2018, PN31–PN32.
[4] Ibid, PN34.
[5] Transcript, 25 May 2018, PN36.
[6] Outline of submissions of Applicant, received 10 May 2018, [q 4].
[7] Ibid.
[8] Ibid.
[9] Transcript, 25 May2018, PN82.
[10] Ibid, PN76.
[11] Ibid, 25 May 2018, PN158.
[12] Ibid, 25 May 2018, PN156.
[13] Outline of submissions of Applicant, received 10 May 2018, [q 5].
[14] Transcript, 25 May 2018, PN122.
[15] Ibid May 2018, PN166.
[16] Submissions of Respondent, received 17 May 2018, Attachment E, ‘Letter from Respondent to Applicant”, dated 17 November 2017.
[17] Transcript, 25 May 2018, PN182.
[18] Submissions of Respondent, received 17 May 2018, [45].
[19] Ibid, [46].
[20] Ibid, [47].
[21] Witness Statement of Emilia Cvetkovic, received 17 May 2018, [6].
[22] Ibid, [9].
[23] Ibid, [12].
[24] Ibid, [15].
[25] [2011] FWFB 975.
[26] Ibid at [13]-[14].
[27] Witness Statement of Emilia Cvetkovic, received 17 May 2018, [15].
[28] Transcript, 25 May 2018, PN82.
[29] Ibid, PN166.
[30] Witness Statement of Emilia Cvetkovic, received 17 May 2018, [15].
[31] Transcript, 25 May 218, PN76-PN77.
[32] Form F3 – Employer Response, received 13 April 2018, Attachments B, C and G.
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