Andy Lai v Clata Kitchens Home T/A Clata Kitchens Pty Ltd

[2016] FWC 4663

[2016] FWC 4663

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Andy Lai
v
Clata Kitchens Home T/A Clata Kitchens Pty Ltd
(C2016/4061)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 JULY 2016

Application to deal with contraventions involving dismissal.

[1] Mr Andy Lai alleged that the termination of his employment by Clata Kichens Pty Ltd was in breach of the general protections provisions of the Fair Work Act 2009. Clata denies the allegation. Clata submitted that Mr Lai was not dismissed rather he resigned his employment.

[2] Given his alleged dismissal took effect on 28 April 2016, his general protections application lodged on 11 July 2016 was not made within 21 days of the date the dismissal took effect.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] 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 not reproduced]

(a) the reason for the delay;

[5] Mr Lai gave evidence that within 2-3 days of the ending of his employment he attended the Fair Work Commission office because he did not get his full payment on termination. He said he was advised that he was not able to make an unfair dismissal application because he had only worked for his employer for just over one month. Mr Lai was told to contact the Fair Work Ombudsman about his entitlements.

[6] Mr Lai attempted to contact the Ombudsman but was unsuccessful so he returned to the Commission where he was provided with alternative ways to contact the Ombudsman. When he was not able to get any response from the Ombudsman he was put in contact with JobWatch who told him he could lodge this application. He said he was unaware of the 21 day time limit. Mr Lai spoke to JobWatch around the time he lodged this application.

[7] Mr Lai contacted his employer about his entitlements on 1 May 2016. He advised them that if he did not get a response within 10 days he would contact the Ombudsman.

[8] I am satisfied that Mr Lai was attempting to resolve his issues in relation to his entitlements. I am not satisfied that he sought information about disputing his “dismissal” because he exercised a workplace right until such time as he spoke to JobWatch.

[9] I am not satisfied that he received incorrect information from the Commission. He clearly approached them about his entitlements. To the extent that he sought advice about his dismissal it was in relation to making an unfair dismissal claim. The information given to him was correct.

[10] I am satisfied that Mr Lai was unaware of the 21 day time limit but this is not unusual. It is also not unusual for an employee to be unaware of his or her right to make a claim that his or her dismissal was in breach of the general protections provisions of the Act.

[11] I am not satisfied therefore that Mr Lai has a reasonable explanation for the whole of the delay.

[12] This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[13] Mr Lai was aware of the “dismissal” when it took effect. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[14] Mr Lai took no action to dispute the dismissal. This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[15] There was no evidence or submission about any prejudice to Clata. Clata relied on prejudice that it suffered as a result of Mr Lai leaving his employment and the dispute over his unpaid entitlements. It did not put forward any prejudice it would suffer if an extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[16] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”  3

[17] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 4 

[18] On 28 April 2016, Mr Paul Oro, Mr Lai’s supervisor, sent a text message to Mr Lai stating “It is my understanding you have resigned after his morning. Please confirm.” Mr Lai replied “As you said, I don’t like my job I can get out. I’ll start a new job 2moro. With a better understanding boss.” In reply Mr Oro said “those weren’t my exact words.”

[19] Mr Lai said that he had been told “if you don’t like the job, you can leave.” Mr Lai said he was dismissed because he exercised his workplace right to work in a safe manner. Mr Oro said that there was dispute about what type of sander Mr Lai should use and there was no issue of occupational health and safety.

[20] If this matter proceeds, Mr Lai will need to prove that he was in fact dismissed and that he was exercising a workplace right. If he does this, then Clata will need to prove that this was not one of the reasons he was dismissed.

[21] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I consider this criterion to be a neutral consideration.

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

[22] There were no submissions that there were any persons in a similar position. This is a neutral consideration.

Conclusion

[23] I am not satisfied that there are exceptional circumstances. Mr Lai has not provided a reasonable explanation for the delay and none of the other criteria weigh in favour of such a finding. Mr Lai’s application for an extension of time is therefore dismissed and so is his general protections application.

DEPUTY PRESIDENT

Appearances:

A. Lai on his own behalf.

P. Oro for the Respondent.

Hearing details:

2016.

Melbourne, by telephone link:

11 July.

 1   [2011] FWAFB 975.

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR582678>