Amanuale Kidanu v Launch Housing Limited
[2022] FWC 1598
•23 JUNE 2022
| [2022] FWC 1598 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Amanuale Kidanu
v
Launch Housing Limited
(U2022/5348)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 23 JUNE 2022 |
Extension of time (s 394(3)) – no exceptional circumstances – application dismissed
This decision concerns an application made by Mr Amanuale Kidanu for an extension of time within which to bring his unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Mr Kidanu’s employment with Launch Housing Limited (respondent) was terminated on 21 April 2022. Section 394(2) states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The 21-day period ended at midnight on 12 May 2022. The application was lodged by email to the registry of the Commission at 12.08am on 13 May 2022, eight minutes out of time. In order for Mr Kidanu’s application to proceed, he requires an extension of time.
Section 394(3) provides that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section.
The Act does not indicate what kind of reason for delay might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable explanation’. In relation to the reason for his delay, Mr Kidanu submitted that he was not aware that an application had to be lodged within 21 days after the dismissal took effect and that he had been shocked by his dismissal and was having a difficult time following the end of his employment with the respondent.
The mere fact of a person’s unawareness of the requirement to lodge an unfair dismissal application within 21 days of dismissal is not an acceptable reason for the delay. Information concerning lodgement requirements is available on the Commission’s website. Mr Kidanu could have learned about the requirements by consulting the website or contacting the registry of the Commission. Further, while I accept Mr Kidanu’s general statement that he was shocked by his dismissal and was having a difficult time of things following his termination, I do not consider these matters to provide a reasonable explanation for the delay. There is no basis on which I could conclude that these matters seriously impeded the timely lodgment of Mr Kidanu’s application. They are also very common circumstances in cases where a person has been dismissed. I note that the application was filed only a short time after the end of the 21-day period. But this is not an exceptional circumstance. A small delay is still a delay. There was no good reason for the delay in this case. I am not satisfied that Mr Kidanu has an acceptable or reasonable explanation for the delay, nor do I consider that there are exceptional circumstances surrounding the delay. The consideration in s 394(3)(a) weighs against an extension of time.
I consider the following matters to be neutral considerations. First, Mr Kidanu was notified of his dismissal on the day that it took effect (s 394(3)(b)). Secondly, Mr Kidanu did not take action to dispute his dismissal apart from filing his unfair dismissal application (s 394(3)(c)). Thirdly, there is no apparent prejudice to the employer in the present circumstances (s 394(3)(d)). Finally, I do not consider that there are any matters that are relevant to the question of fairness as between Mr Kidanu and other persons in a similar position (s 394(3)(f)).
The Commission is required to consider the merits of the application (s 394(3)(e)). Mr Kidanu was dismissed following an investigation by the respondent into allegations that on numerous occasions, while on night shift as a youth development worker, he was asleep or watching television instead of attending to his duties. Following a complaint from a resident, the respondent conducted an audit and reviewed CCTV recordings. It found the allegations to be substantiated. Mr Kidanu submitted that his dismissal was unfair because he had not been told that these behaviours were inappropriate, and because other employees engaged in similar conduct. Mr Kidanu stated that he had believed that staff were allowed to watch television and use the common areas because the respondent encouraged its staff to spend time out of their offices engaging with the young people at the facility. He said that he was not given an opportunity to rectify his behaviour. Mr Kidanu also stated that his manager had been unhappy with him because he was unable to work a particular shift, and that the manager ignored his emails and never wanted to talk to him. Mr Kidanu said that he ‘felt this was some sort of racism’. The respondent strenuously denied this and said that Mr Kidanu had not raised this allegation during the disciplinary meeting. The respondent contended that the dismissal was not unfair because there was a valid reason for dismissal, namely Mr Kidanu’s misconduct constituted by his sleeping and otherwise neglecting his duties on night shift. The respondent said that Mr Kidanu had been given an opportunity to respond to the allegations, and although it regarded Mr Kidanu’s conduct as serious misconduct, it nevertheless made a payment to him in lieu of notice of termination.
An application to extend time is in the nature of an interlocutory application (see s 396). It is not possible to form any concluded view about the merits. However, in my opinion Mr Kidanu’s claim is not a strong one. Mr Kidanu agreed with the respondent that he was required to work an ‘active night shift’ during which he had to perform various duties, including managing the site. He also acknowledged that it would have been unacceptable to sleep during the shift, and that it was possible that while he was lying down, he might have fallen asleep. This suggests that the respondent is likely to be able to substantiate that it had a valid reason for Mr Kidanu’s dismissal. Mr Kidanu’s statement that he felt that he had been subject to ‘some sort of racism’ was not explained. Mr Kidanu did not contradict the respondent’s submission that he had not raised this matter at the disciplinary meeting. Nevertheless, there appear to be a number of facts in this matter that are disputed or unclear and which could bear on the question of whether the dismissal was unfair. I regard the merits of the application as a neutral factor.
Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Mr Kidanu has not established an acceptable or reasonable explanation for the delay and none of the considerations in s 394(3) weighs in favour of an extension.
As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Mr Kidanu’s unfair dismissal application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A. Kidanu for himself
Mr L. Draper for the respondent
Hearing details:
2022
Melbourne
22 June
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