Benson Saputra v Barossa Siam Pty Ltd

[2020] FWC 2371

[2020] FWC 2371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Benson Saputra
v
Barossa Siam Pty Ltd
(C2020/904)

COMMISSIONER YILMAZ MELBOURNE, 8 MAY 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances – contention of dismissal or resignation and outstanding wage entitlements - extension of time granted.

[1] On 11 February 2020, Mr Benson Saputra lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Barossa Siam Pty Ltd (Barossa). Mr Saputra commenced employment on 19 November 2019 and his last day of work was on 17 January 2020.

[2] Employed as a chef, Mr Saputra submits that on 17 January 2020, while working in the kitchen with the owner’s wife, she lost her temper and after the owner refused to ‘mediate’ the situation, he walked out of the restaurant to diffuse the situation. Mr Saputra submits he was dismissed, while Barossa submits Mr Saputra resigned when he walked out.

[3] Mr Saputra also submits Barossa failed to pay him his correct wages (including penalty rates), notice of termination and accrued annual leave.

[4] The hearing scheduled for 16 April 2020 proceeded without Barossa’s owner Mr Chris Eckersley (the owner) as he failed to attend and could not be contacted at the time of the hearing.

[5] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 4 days after the 21-day statutory time limit.

Applicant’s submissions

[6] Mr Saputra submits that during his employment that he worked public holidays against his wishes and on weekends. He submits he was not paid penalty rates for work that he performed on public holidays, weekends or shifts, but rather a flat rate was paid for all hours worked. He submits he was bullied by the owner’s wife and alleges a contravention of his workplace rights in respect of s.340- protection, s.343- coercion and s.344- undue influence or pressure. He also alleges contravention of s.351- discrimination and s.352- temporary absence - illness or injury.

[7] Mr Saputra alleges that he has raised the issue of his wages while employed as late as 13 January 2020; in the email he asked his employer to pay penalty rates as per the hospitality award 1. He submits that the owner’s wife bullied him and the day he walked out to diffuse the situation he felt ill.

[8] Mr Saputra alleges that the owner’s wife picked on him in respect of every small mistake he made in order to find a reason to terminate the employment relationship. He submits that Barossa’s motivation for the alleged dismissal is so that they can save on wages by paying the younger kitchen hand on a lower rate of pay 2.

[9] Following his termination of employment, Mr Saputra actively sought and obtained employment and now is pursuing his application primarily for his wage entitlements. Mr Saputra submits that he inquired with the Fair Work Ombudsman (FWO) about his entitlements and subsequently contacted the owner but did not receive any response to his claims. He is seeking assistance from the Commission to obtain his outstanding wages.

Respondent’s submissions

[10] Barossa’s response to the general protections application states that Mr Saputra advised he was leaving and that this was taken to be a resignation. At 5.00pm the same day, Mr Saputra texted Mr Eckersley asking about whether he was required the following day and Mr Eckersley replied that he accepted the resignation when Mr Saputa walked out 3. Barossa also states that sometime later Mr Saputra was informed via text that he would not receive 1 weeks’ notice because Mr Saputra did not give his employer 1 week of notice4.

[11] Barossa also states that Mr Saputra challenged his termination when he was advised that he would not be receiving any wage entitlements because he was employed for less than three months 5.

[12] In relation to the requirement to work on public holidays, Barossa states that Mr Saputra was asked to work on Boxing Day and would receive a day in lieu. It also states that Mr Saputra agreed to work on Boxing Day 6.

[13] Barossa raised the jurisdictional objection on the basis that the application was lodged outside the statutory time limit 7.

Consideration

[14] On 16 April 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application. The owner Mr Eckersley was aware of the hearing as the date was confirmed with him; he did not attend and did not respond to telephone calls prior to commencement of the hearing. Mr Eckersley contacted the Commission 1 hour and 20 minutes after the hearing commencement time and was informed that that the hearing proceeded in his absence.

[15] General protections applications involving dismissal must be made within 21 days.

[16] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[17] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 8 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 9

[18] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[19] The general protection involving dismissal application was lodged with the Commission on Tuesday 11 February 2020, four calendar days late.

[20] Mr Saputra submits that following his termination of employment, he travelled as far as outback South Australia for job interviews and while travelling, he found the internet connection was unreliable to file his application. He submits his computer had “gone (out of order) on 2 February 2020”, so he purchased a new one, but as it was different, he struggled to access all of his files that he required to complete his application 10.

[21] After the termination of employment, Mr Saputra submits he contacted the FWO to clarify his entitlements and obtain assistance in claiming payment from his employer 11.

[22] Mr Saputra submits that he failed to file his application with his mobile phone 12 and the earliest he could go into the Commission as soon as he returned to the city to finalise his application was on Monday 10 February 2020. He submits he went into the Commission but was advised to check over his materials before filing on Tuesday13.

[23] Mr Saputra’s reason for filing late was accompanied with supporting evidence- the purchase of new computer equipment, correspondence confirming employment from the new employer, material from the FWO confirming receipt of an inquiry and their response concerning his entitlements.

[24] The critical dates in order are as follows:

•  17 January 2020 - Termination of employment

•  21 January 2020 – Inquiry raised with FWO

•  22 January 2020 – FWO provided written advice

•  26 January 2020 - Inquiry raised with FWO

•  31 January 2020 – letter of offer of employment

•  2 February 2020 – computer fails

•  5 February 2020 – purchase of new computer

•  7 February 2020 – 21 days after termination

•  9 February 2020 – FWO closed inquiry

•  10 February 2020 – Went to FWC registry to complete forms told to check over

•  11 February 2020 – Completed application filed

•  17 February 2020 – signed new employment contract

[25] The material provided by Mr Saputra demonstrates his personal effort to find alternative employment quickly, pursue advice regarding his entitlements and seek assistance from FWO to claim his entitlements from his employer and filed a general protection application while dealing with the failure of his computer and poor internet connectivity in outback South Australia. Further it is not contested that communication between Mr Saputra and Mr Eckersley occurred post termination regarding the payment of wage entitlements. Having regard to his submissions and evidence, I am satisfied that Mr Saputra demonstrated credible reasons regarding this consideration and taken collectively cannot be construed as common. I consider the reasons given for the delay weigh in the Applicant’s favour.

Steps taken to dispute the termination

[26] Mr Saputra submits he disputed that the termination was a resignation and submitted text messages between himself and Mr Eckersley. The text message from Mr Saputra states “I didn’t say that I resign today. I just don’t feel well enough after your wife bully me. If someone leave your business because of sick you sack him/her straight away? If you don’t want to pay, I can lodge a complaint against you to fair work australia” 14. This text is a direct response to Mr Eckersley where he states he “must be in employment for 3 months to be entitled to holiday pay”. He goes on to say, “when someone walks out of a shift that in my thoughts is that he is not coming back subsequently has resigned, cheers Chris”.

[27] Further text messages between the parties relate to Mr Saputra’s intention to also contact the fair work ombudsman. The response from Mr Eckersley is, “unfortunately for you Benson, when you walk out without any notice you forfeit any entitlements. The award says full time employees must give one weeks’ notice and employers the same or they have to pay one week’s pay. If you want to contact the fair work ombudsmen that is your right, Cheers Chris” 15.

[28] This consideration weighs in Mr Saputra’s favour.

Prejudice to the employer

[29] Mr Saputra asserts that granting an extension of time will not cause Barossa disadvantage or unfairness as he had kept all text messages and emails with his employer. Mr Saputra’s evidence of a text message where Mr Eckersley invited him to seek advice from the FWO, is an indication to both men that the matter would escalate beyond the text messaging 16.

[30] Mr Eckersley submits that his phone deletes messages after 30 days, therefore he would be disadvantaged as he could not rely on his correspondence via text to defend his position 17.

[31] While I accept that an extension will be an inconvenience, the application is not a long delay and it is apparent the parties were in dispute over at least the payment of penalty rates and whether the termination was a resignation or dismissal at the initiative of the employer.

[32] I am not persuaded that the loss of text messages is such to disadvantage Barossa, particularly as the primary reason for the application is the payment of outstanding wage entitlements. Further, Barossa was aware of the dispute over the termination of employment and payment of entitlements. If there was concern over the relevance of the text messages, Mr Eckersley provided no reason why he did not take steps to copy or preserve the messages.

[33] In line with established precedent, even the mere absence of prejudice is an insufficient basis to grant an extension. In this matter I find this consideration neutral.

Merits of the application

[34] Mr Saputra submits his employment was terminated by Barossa after he walked out of the restaurant to diffuse the situation with the owner’s wife. He alleges she bullied him over the last three weeks of his employment and on his last day, she was evidently stressed and yelled at him over the way he cut the pork loin. He alleges that she started slamming equipment and doors while yelling abuses at him that he is useless, and he was told to leave her alone.

[35] Mr Saputra further submits Barossa was aware of his claim for his wage entitlements, and to support this point he submitted text messages and an email exchange with Mr Eckersley. Mr Saputra alleges the termination of employment was discriminatory as Barossa could save money by paying the junior kitchen hand instead of an adult chef 18.

[36] Mr Saputra submits contravention of his workplace rights in respect of s.340- protection, s.343- coercion and s.344- undue influence or pressure. He also alleges contravention of s.351-discrimination and s.352- temporary absence - illness or injury.

[37] The merits of the case were not tested, and Mr Saputra did not verbally express his general protections case as definitively as the allegations of underpayment which were supported by FWO material and correspondence between Mr Saputra and Mr Eckersley. He submits the main reason he is seeking assistance from the Commission is to obtain from Barossa the entitlements that he has calculated as owing to him. His frustration with Mr Eckersley to deny him payment of penalties, notice and annual leave prompted his persistence with the application, particularly because of the difficulty he had in fully comprehending the written instructions from the FWO.

[38] As Mr Saputra had quickly obtained alternative employment, his primary motivation is the payment of his entitlements rather than the advancement of a general protection application. Consequently, I find this consideration to not weigh in his favour.

Fairness between the person and other persons in a like position

[39] Both Mr Saputra and Barossa did not make submissions in relation to this consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[40] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[41] On balance of all the considerations, while a number weigh in favour of Mr Saputra or are neutral, the primary objective of pressuring Barossa to pay the wage entitlements does not weigh in favour of an extension of time. Despite Mr Saputra’s main motivation at the time of the hearing, the other considerations cannot be ignored and on balance must favour an extension of time. I am mindful that Mr Saputra intended to file a general protections application and understood that this application to be quite separate from his inquiries with the FWO. Having therefore considered the submissions and evidence filed, I find that Mr Saputra has substantiated exceptional circumstances for an extension of time.

[42] As an aside to the matter of the extension of time, I observe that the material from the FWO is promising for Mr Saputra to garner assistance from them should Barossa refuse to voluntarily address the allegations of underpayment. On the issue of whether the termination was a dismissal or resignation, I do not make any determination other than observing that should the text messages reflect the facts of the matter, it is arguable that the termination was at the initiative of the employer.

[43] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

COMMISSIONER

Appearances:

Mr Benson Saputra for himself

Hearing details:

16 April

Melbourne
2020

Printed by authority of the Commonwealth Government Printer

<PR719154>

 1   Email from B Saputra to C Eckersley dated 13 January 2020 and response.

 2   Applicants Application Form F8 at Q3.1.

 3   Respondent’s response to the general protections application at Q2.2.

 4   Ibid.

 5   Ibid at Q4.1.

 6   Ibid at Q5.1.

 7   Ibid at Q 4.1.

 8   [2011] FWAFB 975.

 9 Ibid at [13].

 10   Applicant’s outline of argument at Q1d and attached evidence of purchase and old computer.

 11   FWO’s written response to enquiry dated 21 January 2020.

 12   Op Cit at Q1d.

 13   Ibid.

 14   Applicant’s Outline of submissions attachment extract text messages.

 15   Ibid.

 16   Ibid.

 17   Respondent’s response to the general protections application at Q4.1.

 18   Applicant’s Outline of submissions at Q1h.