Ajok Mabior v Regis Aged Care Pty Ltd T/A Regis

[2016] FWC 4434

[2016] FWC 4434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ajok Mabior
v
Regis Aged Care Pty Ltd T/A Regis
(U2016/7375)

COMMISSIONER RYAN MELBOURNE, 11 JULY 2016

Application for relief from unfair dismissal – extension of time.

[1] Ms Mabior lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Regis Aged Care Pty Ltd (Regis) on 6 May 2016 was harsh, unjust or unreasonable. The application was received by the Fair Work Commission on 1 June 2016.

[2] The Applicant's employment was terminated on 6 May 2016, with immediate effect, with the Respondent relying on allegations of serious misconduct as the basis for the dismissal.

[3] The application was filed 5 days outside the 21 day time limit provided for in the Act.

[4] Directions were issued and a hearing to deal the Applicant’s request for an extension of time was listed for 1 July 2016.

[5] On 30 June 2016 the Applicant advised the Commission that she was unavailable to attend the hearing and that she relies on the material she has filed in relation to an extension of time. The Respondent advised that it did not intend making an appearance given that the Applicant would not be attending and that it was happy for the matter to be determined on the papers.

[6] This decision is about whether the Fair Work Commission (the Commission) should allow Ms Mabior a further period for lodgement of her application for an unfair dismissal remedy.

Legislation

[7] Section 394(2) permits the Fair Work Commission to extend the 21 day time period in in the Act subject to the Commission being satisfied that there are exceptional circumstances taking into account each of the relevant matters enumerated in s.394(3).

“394(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[8] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

"[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.” [Endnotes removed]

Section 394(3)(a) - The reason for the delay

[9] Ms Mabior must provide reasons for the whole of the period that the application was delayed. The Commission is required to consider the explanation of the total period of the delay, not only part of it. The delay for the purposes of s.394(3) of the Act, is the delay from the expiry of the 21 day period, 27 May 2016, until lodgement of the application,
1 June 2016. The reasons provided must be considered in order to determine whether those reasons constitute exceptional circumstances.

[10] Ms Mabior’s submissions in support of being granted an extension of time are as follows:

“In summary, the exceptional circumstances that resulted in me making my application more than 21 days after my dismissal are:

(a) cultural difficulties;
(b) lack of financial means; and
(c) misunderstanding of advice received from Justice Connect.

On 9 May 2016 I received the termination letter from Regis Aged Care (Regis), dismissing me from my employment. I immediately sought advice from the Migrant Information Centre (Eastern Melbourne) (MIC) on 10 May 2016, and was assisted by Sue Herbst, Manager of the MIC.

Ms Herbst rang Justice Connect on my behalf on 10 May 2016 to request that they assist me regarding the termination letter that I had received from Regis, however, they were not available. Ms Herbst again contacted Justice Connect on 11 May 2016 and gave them my telephone number. Justice Connect told Ms Herbst that they would call me directly. Justice Connect did call me on 11 May 2015 and I missed the call, however I rang back on that same day and left a voice message.

I continued trying to call Justice Connect. Over the next few days I spoke to a representative at Justice Connect on 13 May 2016. I was advised that Justice Connect told me that they would consider my case and call me back to let me know what I should do next. Justice Connect rang me the following week stating they could not assist me and suggested that I call a lawyer. My understanding of the advice I received from Justice Connect was that I could not challenge my dismissal from my employment unless I instructed a lawyer to do so on my behalf.

I do not have money to employ a lawyer and I did not know what to do. I felt overwhelmed and anxious about the situation. I was unclear about my rights and obligations and I panicked because I needed a lawyer that I could not afford.

I called the MIC again on 31 May 2016 because I received a call from the Police requesting I come in to make a statement about alleged incident, which I did. I was very upset because I did not do what I was accused of doing, and not only had I lost my job, but now I was also being investigated by the Police.

Ms Herbst explained to me that I should have submitted an unfair dismissal application because the Fair Work Commission can make a decision on whether I have been unfairly dismissed. I had no idea that I could make an unfair dismissal application without a lawyer. I understood that Justice Connect had said that I needed a lawyer in order to make the application. When Ms Herbst explained to me that I could make the application on my own, I immediately (with the help of the MIC) filled out the Form F2 and filed it as soon as I could on the following day, 1 June 2016.”

[11] Ms Mabior included in her submissions a statement of evidence from Sue Herbst, Manager of MIC. What is clear from Ms Herbst’s statement is that Ms Mabior came to the MIC for assistance and that the MIC only provides services to refugees in their first 5 years of being in Australia. She said that as Ms Mabior had been Australia for more than 5 years, she offered to help her on the basis that she had known her and her family for many years.

It is obvious that Ms Herbst went to great lengths to point Ms Mabior in the right direction by making contact on her behalf with various bodies including Legal Aid, JobWatch and Justice Connect. That those efforts did not advance Ms Mabior’s situation is unfortunate but something which cannot be attributed to Ms Herbst as it is clear she was not acting as a representative of Ms Mabior.

[12] It is clear that Ms Mabior sought assistance regarding how to dispute her dismissal starting one day after the dismissal took effect. However, she relied on others to provide her with the necessary information regarding her rights and at no time did she make enquiries to ascertain for herself what the process or time limits might be for making such an application

[13] I believe it is also relevant that Ms Mabior effectively gave up on filing an unfair dismissal application when she wrongly concluded from a telephone conversation with Justice Connect in the week of 18 May 2016 that she could only make an application if she instructed a lawyer to act on her beahalf. The next time Ms Mabior felt compelled to take any action in this regard was when she was telephoned by the police on 31 May 2016, which led her to again contact Ms Herbst. This lapse in time where Ms Mabior did not actively pursue making this application is a factor which weights against her being granted an extension of time.

[14] The other grounds submitted by Ms Mabior in support of exceptional circumstances were her cultural differences and lack of financial means contributed to the existence of exceptional circumstances.

[15] In regard to the issue of cultural differences, it is clear that Ms Mabior has been settled in Australia for more than 5 years and that during this time she had gained a qualification, Certificate 3 in Aged Care. This suggests that her perceived cultural differences have not been a barrier to her gaining that qualification and in fact gaining employment with Regis and therefore I do not consider that cultural differences are a relevant consideration.

[16] In regard to the issue of lack of financial means, it is clear that Ms Mabior had misunderstood the advice she received from Justice Connect. However, there was nothing preventing her from making the necessary enquiries which would have cleared up that misconception.

[17] There is nothing exceptional about having cultural differences or financial restraints. Each of those types of reasons are regularly encountered by applicants in unfair dismissal proceedings.

[18] I am not satisfied that Ms Mabior’s reasons provide a satisfactory explanation for the delay. This weighs against a finding of exceptional circumstances.

Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect

[19] It is the evidence of the Applicant that she received a termination letter dated 6 May 2016 on 9 May 2016 and that Ms Phillipou of Regis telephoned her on 6 May and read out the content of the termination letter.

[20] Therefore the Applicant became aware of the dismissal on the same day that the dismissal took effect and she therefore had the full 21 days from the date of termination to lodge her application. This weighs against a finding that there are exceptional circumstances.

Section 394(3)(c) – Any action taken by the person to dispute the dismissal

[21] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 2

[22] As stated above, Ms Mabior, was telephoned by Ms Phillipou on 6 May 2016 and advised that her employment was being terminated. Ms Mabior submits that her response was that it was unfair and that Ms Phillipou invited her to email her if she thought that. Ms Mabior did not take up an invitation as, she explained in her submissions:

“I did not email Ms Phillipou back as I believed she had already made her decision and it would not make any difference, however it was clear during the conversation on 6 May 2016 that I did not agree with Regis' decision to terminate my employment.

I thought this as I had explained in my email of 27 April 2016 and at the meeting held on 28 April 2016 that I had not assaulted or shouted at the resident as had been alleged and had explained what I had done. Moreover I had suggested that the other staff present at the time, Allison and Georgia be requested to come to the meeting however I understand that Regis had not invited them to the meeting. I had completely lost confidence in Regis treating me fairly because of the way that they investigated the alleged incident, and therefore I did not think that anything I said to them would change their mind.”

[23] As Mr Mabior took no action to dispute her dismissal, this factor weighs against the granting of an extension of time.

[24] I find that the actions taken by Ms Mabior to contest her dismissal were actions taken prior to the dismissal taking effect and therefore are actions which I cannot taken into account under this provision.

Section 394(3)(d) – Prejudice to the employer (including prejudice caused by the delay)

[25] The Respondent argues that prejudice flows to it from the delay.

[26] The Applicant submitted that:

“Regis is a large employer who regularly employs casual workers to cover shifts at the Lakeside Residential Care Facility. Regis has dedicated HR specialists and substantial and sophisticated HR resources and support.

Regis has been aware that I disputed the termination of my employment since they interviewed me on 27 April 2016. Additionally, when they contacted me and read out the termination letter on the telephone on 6 May 2016, I again indicated to them that I disputed my termination.

Given my clear indication of my objection to my dismissal (even since prior to the actual date of my dismissal) and the fact that my application was lodged only 3 days late, there is no prejudice that will be suffered by Regis if the Commission exercises its discretion to accept my application.”

[27] Every employer will suffer some prejudice when an application is filed out of time and an extension of time is granted to the applicant. In the present matter, given the short delay in filing the application and the human resources expertise available to Regis, I find that there would be little, if any, prejudice to the respondent in the event that an extension of time were granted.

Section 394(3)(e) - The merits of the application

[28] Regis submitted that it had a valid reason for the termination of Ms Mabior’s employment. It submitted that it had conducted an investigation into allegations of assault of a resident against Ms Mabior and concluded that those allegations were substantiated. And that therefore Ms Mabior had breached its policies and summary termination was appropriate.

[29] Ms Mabior denied the allegations made against her from the date the allegations were first put to her.

[30] An application for an extension of time is not the occasion for the Commission to consider the merits of the case. 3 A highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.4

[31] Accordingly, as I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested, I find this criterion to be neutral.

Section 394(3) (f) fairness as between the person and other persons in a similar position.

[32] In the present matter there are no other persons in a similar position to the Applicant and therefore this criterion is not relevant.

Conclusion

[33] Having taken into account each of the relevant matters in s.394(3) I am not satisfied that any or all or any combination of them gives rise to exceptional circumstances which would warrant the granting of an extension of time.

[34] The application for an unfair dismissal remedy in this matter was not filed within the time specified by s.394(2)(a) and therefore the application is dismissed.

COMMISSIONER

 1   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011]FWAFB 975.

 2   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

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

 4   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

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