Balbir Dhillon v Kadd Facility Group Pty Ltd

[2020] FWC 3339

[2020] FWC 3339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Balbir Dhillon
v
KADD Facility Group Pty Ltd
(U2020/5221)

DEPUTY PRESIDENT CLANCY MELBOURNE, 25 JUNE 2020

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application made by Mr Balbir Dhillon for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The unfair dismissal application was lodged on 20 April 2020.

[2] Mr Dhillon submits that his employment with KADD Facility Group Pty Ltd (KADD) was terminated with effect from 24 February 2020 via a telephone call. KADD disputes this and submits that Mr Dhillon was advised on 24 February 2020 via a letter of that same date that there was no further casual work for him due to a failure to follow reasonable management instruction and performance issues. In the alternative, KADD also objects to Mr Dhillon’s application on the basis that it was made outside the statutory timeframe.

Was Mr Dhillon dismissed?

[3] Section 394(1) of the Act establishes as the basic qualifying criterion for the making of an unfair dismissal application that the applicant has to be “a person who has been dismissed”. Section 386(1) guides the interpretation of s.394(1) by defining the circumstances in which a person can be said under the Act to have been dismissed in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.” (my emphasis)

[4] Section 386(1) is subject to exceptions in subsections (2) and (3) which are not presently relevant.

[5] Mr Dhillon says he received a call from KADD on 24 February 2020 advising him that “we have no work for you anymore”. 1 On this basis, he submits that his employment had been terminated at the employer’s initiative consistent with s.386(1)(a).

[6] KADD refutes Mr Dhillon’s submission that he was dismissed at its initiative. KADD submits that Mr Dhillon was first advised over the telephone that he was being stood down, and following this a letter issued advising there was no further casual work. KADD says Mr Dhillon made two phone calls to its Operations Coordinator and its Cleaning and Facilities Manager, on 27 February 2020, during which Mr Dhillon queried whether there was any casual work, and submits this would not have been the kind of action taken by a person who believes they have been dismissed.

[7] The text of the letter from KADD to Mr Dhillon dated 24 February 2020 2 is as follows:

“We refer to our conversation today, 24/02/2020.

We are writing to confirm that, having reviewed the business requirements, we are not in a position to offer you any further work on a casual basis due to a failure to follow reasonable management instruction and performance issues.

Outstanding wages for the shifts performed on 10/02/20 to 14/02/20 and payment in lieu of one hour’s notice will be paid on. 24/02.20.

Please arrange for your uniform to be returned this week to school.

We wish you all the best in your future endeavours…”

[8] The Full Bench in Ayub v NSW Trains (Ayub) 3 discussed when a termination of employment at the employer’s initiative can be said to have taken effect for the purpose of s.394(2)(a) in the following way:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective.

[9] The Full Bench in Ayub also concluded that a dismissal may not take effect prior to it being communicated to the employee. 4

[10] Having regard to the text of the letter, I am not persuaded by KADD’s assertion that it simply stood Mr Dhillon down from his employment on 24 February 2020. I prefer Mr Dhillon’s evidence and accept that he was told his employment was terminated on that day. It matters not then that Mr Dhillon has raised that he did not receive the letter dated 24 February 2020 sent to him by email. In this regard, I note it was further stated in Ayub:

“In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.” 5

[11] Accordingly, having regard to the circumstances of this case I am satisfied that Mr Dhillon has been dismissed at the initiative of the employer and I consider the date the dismissal took effect was 24 February 2020.

Extension of Time

[12] Section 394(2) of the Act states that an application for an unfair dismissal remedy 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). Mr Dhillon asserts he was dismissed with effect from 24 February 2020, so the period of 21 days ended at midnight on 16 March 2020. The application was therefore filed 35 days outside the 21-day period. Mr Dhillon asks the Commission to grant a further period of the application to be made under s.394(3) of the Act. KADD opposes this request.

[13] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 6 Exceptional circumstances may 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 can be considered exceptional.7

[14] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[15] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[16] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.

Reason for the delay

[17] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 8

[18] Mr Dhillon submits that at the time of his dismissal, he was overseas on unpaid annual leave. Upon arriving back in Australia on or about 27 February 2020, Mr Dhillon says he attempted to communicate with various managers from KADD by text message and telephone in order to clarify his employment status and ascertain what he had done wrong but after a week of trying, did not get a response. Furthermore, Mr Dhillon asserts that he made enquiries with a variety of organisations to determine his next steps and “every one took considerable [time] to reply to me” 9 and that due to the COVID-19 pandemic, it took “a couple of weeks to find out where to go and what to do”.10 Mr Dhillon says one of his enquiries was to Legal Aid, which one week after his initial inquiry advised him it could not assist him and referred him to the Commission, after which he says he “finally… got to [the] right people”.11 Commission staff members appear to have directed Mr Dhillon to the Commission’s website and provided him with information regarding the Form F2.

[19] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which ended at midnight on 16 March 2020. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 12

[20] I do not consider there were any circumstances within the 21-day period prescribed for making an application that had any bearing on the 35-day period of delay from 17 March 2020 to 20 May 2020 and nor do I consider there was an acceptable or reasonable explanation for the 35-day delay.

[21] It is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed. 13 Mr Dhillon asserts that the information he sought took considerable time to be communicated to him by the various organisations he contacted. I do not consider this an acceptable explanation. It was Mr Dhillon’s choice to seek advice from various sources. Not receiving the relevant advice from the organisations he contacted did not preclude Mr Dhillon from conducting his own research. As can be seen from this case, unfair dismissal applications can be made without legal or other professional advice by reference, for example, to the Commission’s website material designed to assist members of the public to prepare and lodge applications.

[22] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[23] Mr Dhillon first became aware of the dismissal on 24 February 2020. He therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[24] Mr Dhillon submits that following his dismissal, he kept ringing and messaging KADD after he returned to Australia to ascertain the reason for his dismissal, but nobody responded nor provided him any feedback. While KADD disputes this, I accept Mr Dhillon’s evidence and find he took action to dispute the dismissal but consider this factor weighs only marginally in favour of a finding that there are exceptional circumstances.

Prejudice to the employer

[25] Mr Dhillon submits that KADD will suffer no disadvantage or unfairness if an extension of time is granted. KADD submits that it is spending valuable time to defend the application when there is no valid excuse for the late lodgment of Mr Dhillon’s unfair dismissal application, and there was no dismissal.

[26] I cannot identify any greater prejudice that would accrue to KADD caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[27] The Act requires me to take into account the merits of the application in considering whether to extend time. Mr Dhillon says that he has been dismissed and wants to understand why. He says there had previously been no issues raised with him regarding his performance and he was afforded no opportunity to respond to the reasons KADD gave him.

[28] Mr Nick Bailey from KADD stated that it had conducted an investigation into Mr Dhillon’s performance and behaviour and this had raised matters of concern for both it and the school at which Mr Dhillon had been performing his duties. KADD further says that there had been meetings conducted with Mr Dhillon regarding the quality of his performance.

[29] Having heard from the parties and considered the materials filed, it is evident to me that the substantive merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits except to say Mr Dhillon has in some respects at least an arguable case, and KADD a prima facie defence. I do not consider the merits to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[30] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. While in the present case, the Applicant submits that there is no difference between him or others, as “they have been treated the same way” 14 while also suggesting there may have been age discrimination against him, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[31] Having regard to and weighed all the matters I am required to take into account under s.394(3), and all of the matters raised by Mr Dhillon, I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Mr Dhillon’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr B Dhillon for himself.
Mr N Bailey for KADD Facility Group Pty Ltd.

Hearing details:

2020.
Melbourne (by telephone):
June 24.

Printed by authority of the Commonwealth Government Printer

<PR720493>

 1   Exhibit A1 at CB 5.

 2   Exhibit R3.

 3   [2016] FWCFB 5500.

 4   Ibid at [35] and [41].

 5 Ibid at [50].

 6   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 7   Ibid.

 8   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 9   Exhibit A1 at CB 5.

 10   Exhibit A1 at CB 11.

 11   Ibid.

 12   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

 13   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 14   Exhibit A1 at CB 12.