Bernard Ganyani v The Graviety Group Pty Ltd T/A SignMart Pro

[2016] FWC 3393

[2016] FWC 3393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Bernard Ganyani
v
The Graviety Group Pty Ltd T/A SignMart Pro
(C2016/2353)

DEPUTY PRESIDENT KOVACIC CANBERRA, 27 MAY 2016

Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances warranting allowing a further period for the making of an application – application dismissed.

[1] Mr Bernard Ganyani (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 22 January 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by The Graviety Group Pty Ltd T/A Signmart Pro (the Respondent) on 17 July 2015 in contravention of the general protections provisions in the Act.

[2] As the application had been lodged 168 days outside the statutory timeframe for lodgement, the Commission issued Directions on 29 January 2016 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Revised Directions were issued on 17 February 2016.

[3] The extension of time issue was the subject of a telephone hearing on 13 April 2016. At the telephone hearing, Mr Ganyani appeared on his own behalf, while Mr Emal Akbari appeared for Respondent.

[4] For the reasons set out below, I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5] Mr Ganyani commenced employment with the Respondent as a Marketing Specialist. Mr Ganyani was sponsored by the Respondent and worked in Australia under a Temporary Work (Skilled) Visa (subclass 457) (457 Visa).

[6] In his application Mr Ganyani stated that the Respondent did not provide any reason for his dismissal and that he did not receive any formal notification of the termination of his employment from the Respondent. Mr Ganyani further contended that he only became aware that he had been dismissed in mid-January 2016 when he received correspondence from the Department of Immigration and Border Protection (DIBP).

[7] The Respondent contended that Mr Ganyani’s employment had ceased prior to 30 June 2015 and that Mr Ganyani had been advised of this in person.

[8] As previously noted, Mr Ganyani’s general protections application was received by the Commission on 22 January 2016, 168 days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In his application, Mr Ganyani alleged that he was dismissed in contravention of s.344 of the Act which deals with undue pressure or influence.

The Relevant Legislation

[9] Section 366 of the Act provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Whether to allow a further period for the application to be made

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] Mr Ganyani submitted that he only became aware of his dismissal on 16 January 2016 when he received correspondence from DIBP. In the absence of any knowledge of his dismissal, Mr Ganyani contended that there was no opportunity for him to lodge his application within the 21 day statutory timeframe. At the telephone hearing the Commission asked Mr Ganyani to provide a copy of the letter he received from DIBP, which he did on 13 April 2016. Among other things, the letter states:

“On 20 July 2015 the Minister received advice from your sponsor THE GRAVIETY GROUP PTY LTD, stating that you have ceased employment with the sponsor on 17 July 2015. Based on the information before me, it appears that you do not currently hold a valid nomination and have not been employed in a nominated position for more than 90 days.

It therefore appears that you have ceased employment with the sponsor who nominated you in your most recently approved nomination, for a period in excess of 90 consecutive days.

Subparagraph 8107(3)(b) applies to you and as such, it appears that you have not complied with condition 8107 of your visa.”

[12] Also at the telephone hearing, Mr Ganyani submitted that he had a falling out with Mr Akbari’s father in mid-July 2015 and that as a result he was “put out of the office”. In response to a question from the Commission regarding what if any contact he had with the Respondent following that incident and until learning of his dismissal in January 2016, Mr Ganyani indicated that he received no communication from the Respondent during this period and that the Respondent did not notify him of anything. However, Mr Ganyani also indicated that he did not initiate contact with the Respondent during this period, though he did state that the Respondent had called him a few times over this period to discuss a number of accounts that needed to be closed off.

[13] The Respondent contended that it had informed Mr Ganyani in late June/early July that he had been dismissed. In support of that contention the Respondent stated that at the time of Mr Ganyani’s dismissal it had emailed its migration agent requesting that she notify DIBP that it was withdrawing its sponsorship of Mr Ganyani’s 457 Visa. At the telephone hearing the Commission requested the Respondent to provide a copy of that email, with a copy provided on 14 April 2016. The email referred to by the Respondent was sent at 1.46pm on 30 June 2015 and stated “I would like to withdraw Bernard visa please Kind regards Emal”. Other material before the Commission indicates that on 17 July 2015 the Respondent’s migration agent emailed to DIBP a letter signed by Mr Akbari on behalf of the Respondent requesting that its nomination application in respect of Mr Ganyani be withdrawn. The letter was dated 15 July 2015. The Respondent also submitted at the telephone hearing that both it and Mr Ganyani used the same migration agent and that as such it was likely that she would have informed Mr Ganyani of the Respondent’s request to withdraw its sponsorship of him.

[14] Much of the circumstances in this matter are disputed. However, in circumstances where Mr Ganyani was working under a 457 Visa it beggars belief that if he believed that he had not been dismissed that he would not initiate contact with the Respondent for a period of over six months to clarify his employment situation. Further, as noted above Mr Ganyani indicated at the telephone hearing that the Respondent contacted him on a number of occasions over this period to discuss several accounts. As such, I consider it highly implausible that if Mr Ganyani considered himself still employed by the Respondent that he would not ask the obvious question about what was happening with his job. The absence of any such inquiries by Mr Ganyani suggests that he was aware that he had been dismissed by the Respondent in late June/early July 2015.

[15] The above analysis does not point to the existence of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[16] At the telephone hearing, Mr Ganyani submitted that after he received the abovementioned letter from DIBP in January 2016 he contacted both the Commission and the Fair Work Ombudsman regarding his situation. Beyond this, it does not appear that Mr Ganyani took any action to dispute his dismissal other than lodging his general protections application.

[17] Against that background, I consider this factor to be a neutral consideration.

(c) Prejudice to the employer (including prejudice caused by the delay)

[18] Neither party directly addressed this factor in their submissions. Accordingly, I consider this factor to be a neutral consideration.

(d) The merits of the application

[19] Mr Ganyani stated in his application that upon sponsoring his 457 Visa the Respondent asked him to pay it $30,000. Mr Ganyani also stated in his application that the Respondent asked him to perform a different job to what he was meant to do, that the Respondent had never paid him during the period of his employment and that he had been bullied by the Respondent. Mr Ganyani reiterated these points at the telephone hearing, though at the hearing he contended that the amount he was asked to repay was $20,000. Also at the telephone hearing, Mr Ganyani disputed the Respondent’s contention that he did not come to work during June 2015.

[20] At the telephone hearing, the Respondent submitted that Mr Ganyani did not present for work for several weeks in June 2015 and that when it was moving premises in late June/early July 2015 that Mr Ganyani declined to assist on the basis that it was not his job. The Respondent further submitted that Mr Akbari informed Mr Ganyani in person that he was no longer employed, adding that it did not know how Mr Ganyani was not aware that he had been dismissed.

[21] As previously observed, much of the circumstances in this matter are disputed. Against that background and in the absence of a substantive hearing of all the evidence, I am unable to form a considered view as to the merits of Mr Ganyani’s application. I therefore consider this factor to be a neutral consideration.

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

[22] Neither party directly addressed this factor in their submissions. Accordingly, I consider this factor to be a neutral consideration.

Conclusion

[23] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.”

[24] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[25] Accordingly, Mr Ganyani’s application will be dismissed. An order to that effect will be issued with this decision.

Appearances:

B. Ganyani on his own behalf.

E. Akbari for The Graviety Group Pty Ltd T/A Signmart Pro.

Hearing details:

2016.

Canberra and Perth (telephone hearing):

April 13.

 1 (2011) 203 IR 1

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