Christopher Michael Yee v Toll Transport Pty Ltd
[2020] FWC 482
•18 FEBRUARY 2020
| [2020] FWC 482 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Michael Yee
v
Toll Transport Pty Ltd
(U2019/6044)
DEPUTY PRESIDENT BOYCE | SYDNEY, 18 FEBRUARY 2020 |
Application for an unfair dismissal remedy — application filed out of time —exceptional circumstances — reason for delay — representative error — where Applicant’s conduct explains delay — no exceptional circumstances — application dismissed
[1] On 31 May 2019, Mr Christopher Michael Yee (Applicant) lodged an application for unfair dismissal with the Fair Work Commission (Commission). The Applicant did so by lodging a Form F2 through the Commission’s website. The Applicant claims that Toll Transport Pty Ltd (Respondent) unfairly dismissed him from its employ on 18 April 2019.
[2] An application for an unfair dismissal remedy must be made within 21 days after a dismissal took effect (Statutory Deadline), or in such further time as the Commission may allow.1 The Applicant acknowledges that he lodged his application 22 days outside of the Statutory Deadline. To be within time, the Applicant should have lodged his Application on or before 9 May 2019.
[3] On 8 October 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his application. Mr Len Anthony (Agent) appeared for the Applicant. Ms Fabiana James (Senior Manager - Employee and Industrial Relations) appeared for the Respondent. Given that Mr Anthony was not being paid to perform his role, and that Ms James is employed by the Respondent, I was not required to grant permission to either party to be represented.
[4] Having had regard to the evidence and submissions of both parties in this matter, I have determined that there are no exceptional circumstances that would enliven my discretion to grant an extension of time. Accordingly, the Applicant’s application for an unfair dismissal remedy is to be dismissed. My reasons for this decision are as follows.
Applicant’s evidence and submissions as to material facts
Evidence of Mr Christopher Michael Yee
[5] The Applicant tendered one witness statement in this matter (which, despite being titled “Outline of Submissions”, I take to be his witness evidence). The Applicant’s evidence-in-chief is as follows:
a) The Applicant is a 65-year-old Australian citizen of Fijian and Chinese heritage. In 1973, the Applicant migrated from Fiji to Australia. Since that time, the Applicant has always worked in the transport industry;
b) In 2003, the Applicant was employed by the Respondent as a driver/storeman. He has since remained in that role.
c) On 13 March 2019, the Respondent suspended the Applicant’s employment for a period of five weeks. The Applicant says that the suspension of his employment was because of a “genuine oversight” on his part, whereby the Applicant ‘overlooked’ that his driver’s licence had been suspended on the back of several traffic offences. Despite not being licenced to drive, however, the Applicant continued to carry out his duties as a driver for the Respondent;
d) On 18 April 2019, the Respondent terminated the Applicant’s employment in writing (Termination Letter);
e) the Applicant says that he was accompanied by a Transport Workers’ Union of Australia (TWU) delegate, Mr Jack Skoro, when the Applicant was provided the Termination Letter. At that time, Mr Skoro said words to the effect of, “[t]he TWU [will] pursue the matter by way of an Unfair Dismissal on [the Applicant’s] behalf”;
f) From that date, the Applicant says he “left the matter in the hands of the TWU” as he was “completely unaware of the procedures and processes of the Commission”. Further, he says that neither the Respondent nor the TWU made him aware of the Statutory Deadline for the filing of his unfair dismissal application;
g) The Applicant was only contacted by the TWU on one occasion before the Statutory Deadline expired. The Applicant says that, on this occasion, the TWU confirmed it would “continue their efforts” to file the unfair dismissal application on the Applicant’s behalf;
h) From that date, the Applicant contacted his union delegate(s) on two occasions and inquired about the status of his application;
i) On 29 May 2019 (being 20 days after the Statutory Deadline), the Applicant says that he was contacted by a person from the TWU office and was informed that the TWU would not be pursing the Applicant’s unfair dismissal claim;
j) On 30 May 2019 (being 21 days after the Statutory Deadline), the Applicant contacted the Commission and was informed that he had exceeded the required time for filing; and
k) On 31 May 2019 (being 22 days after the Statutory Deadline), the Applicant filed his unfair dismissal application (with the assistance of his wife).
[6] In cross-examination by Ms James, the Applicant gave the following further evidence:
a) the Applicant contacted “unfair dismissal lawyers” (i.e. lawyers that were not associated with the TWU) on or around 29 May 2019, which was approximately 20 days after the Statutory Deadline; 2 and
b) after first contacting the “unfair dismissal lawyers”, those lawyers took approximately one week to respond to the Applicant. 3
[7] In re-examination by Mr Anthony, the Applicant said he understood “unfair dismissal lawyers” to mean the Commission itself.
Evidence of Mr Surjeet Dosanjh
[8] By way of an Order to Appear, the Applicant compelled the attendance of Mr Surjeet Dosanjh. Mr Dosanjh tendered one witness statement, dated 3 October 2019. Mr Dosanjh gave the following evidence:
a) Mr Dosanjh says that he is currently employed in the capacity of a dockhand/driver; 4
b) Mr Dosanjh is a delegate of the TWU; 5
c) Mr Dosanjh first became aware of the Applicant’s termination when his co-delegate, Mr Jack Skoro, telephoned Mr Dosanjh on 18 April 2019 (being the date of the Applicant’s termination). 6 On the same day, Mr Dosanjh said to Mr Skoro, “[M]ake sure we lodge this one - we got only 21 days to lodge and make sure you ring union house and find out exactly when he’s going there”;7 and
d) Mr Dosanjh confirmed the “common practice” used to be that disputes regarding dismissals were dealt with through the union delegates. However, that practice has since changed, and the TWU now require members to make an appointment with their legal department. 8
[9] In cross-examination by Ms James, Mr Dosanjh gave the following additional evidence:
a) Mr Dosanj says that in late April or early May, the Applicant telephoned Mr Dosanjh when he was at home and they had a conversation to the following effect’:
Applicant: The TWU told me I don’t have a case and that they will not lodge my case for unfair dismissal in the Commission.
Mr Dosanjh: I cannot comment on that. I’m not a legal representative, I’m just a delegate. My job is to just bring information to the TWU officials and that’s it. The delegates don’t make a decision; 9 and
b) Following that conversation, Mr Dosanj telephoned Mr Skoro and informed him about the conversation with the Applicant; 10 and
c) On 2 May 2019, Mr Dosanjh sent a text message to Mr Skoro, saying that the Applicant “understood the situation”. 11
[10] In re-examination by Mr Anthony, Mr Dosanjh gave evidence that he never told the Applicant that the TWU were not going to prosecute the Applicant’s case. Instead, the Applicant telephoned Mr Dosanjh and shared that information with him. 12
Evidence of Mr Jack Skoro
[11] By way of an Order to Appear, the Applicant compelled the attendance of Mr Jack Skoro. Mr Skoro tendered one witness statement in these proceedings, dated 3 October 2019. Mr Skoro gave the following evidence:
a) On 18 April 2019, Mr Skoro was with the Applicant when he received the Termination Letter; 13
b) Later that same day, Mr Skoro said to the Applicant, “Look, I’m going to call up Sonny my head delegate and tell him what happened this morning because we have to look into lodging an unfair dismissal case with the TWU”; 14
c) Further, Mr Skoro said to the Applicant, “Chris, you have 21 days from today and expect a phone call from the TWU either some time today [sic] and please get to the union house as soon as possible next week, as soon as possible”; 15 and
d) Mr Skoro took a photo of the termination letter with his mobile phone and sent that photo to Mr Dosanjh. 16 Mr Dosanjh then provided Mr Skoro with the telephone number for TWU members’ services. Mr Skoro then contacted the TWU. During that phone call, Mr Skoro provided the TWU head office with the Applicant’s phone number and was told the TWU would contact the Applicant.17
[12] In cross-examination by Mr James, Mr Skoro gave the following additional evidence:
a) On the date that the Applicant was terminated, Mr Skoro confirmed that he told the Applicant of the 21-day time limit to lodge his application; 18 and
b) On 2 May 2019, Mr Skoro had a conversation with Mr Dosanjh, whereby Mr Dosanjh informed Mr Skoro that the TWU would not pursue an unfair dismissal claim on the Applicant’s behalf, and that was information provided to Mr Dosanjh by the Applicant. 19
Further evidence of Mr Christopher Michael Yee
[13] The Applicant was re-called for further cross-examination by Ms James following the evidence of Mr Dosanjh and Mr Skoro. The Applicant gave the following further evidence:
a) The Applicant agreed that Mr Skoro informed the Applicant of the Statutory Deadline on the day the Applicant was terminated; 20 and
b) The Applicant agreed that he contacted Mr Dosanjh in May 2019 (though he could not remember the exact date). During that conversation, the Applicant told Mr Dosanjh that the TWU informed the Applicant it was not going to represent him. 21
Respondent’s evidence and submissions as to material facts
[14] The Respondent tendered one witness statement in this matter, being the statement of Mr Jarrod Kingsley Andrade.
[15] In brief, the thrust of Mr Andrade’s statement goes to the circumstances and reasons for the Applicant’s dismissal. The statement does little (if anything) to provide further detail, or contradict, the evidence of the Applicant regarding the Applicant’s delay in filing. I do not reproduce any of Mr Andrade’s evidence-in-chief in this decision.
[16] That said, Mr Andrade’s statement attaches a copy of the Applicant’s Termination Letter. Relevantly, the Termination Letter states that the Applicant’s employment was terminated due to misconduct. More specifically, the Respondent says the Applicant’s misconduct was two-fold:
a) Firstly, the Applicant drove company vehicles without a valid licence.
b) Secondly, the Applicant did not take active steps to find out about the status of his licence when he knew a suspension of that licence would soon occur. To support this reason, the Respondent notes that:
i) On 18 September 2018, the Applicant incurred demerit points against his licence because of a speeding violation (Traffic Infringement);
ii) A check on the Applicant’s driving history confirmed that, at that time, the latest infringement would see the Applicant exceed the number of demerit points that could be incurred against his licence;
iii) The Respondent advised the Applicant to monitor the number of demerit points listed against his licence and not to drive the Respondent’s vehicles if he had incurred too many demerit points;
iv) On 2 January 2019, the Applicant paid the fine for the Traffic Infringement;
v) On 17 January 2019, the Respondent required the Applicant provide a copy of his driving history from Road and Maritime Services New South Wales before commencing his shift the next day. A review of that record indicated that the demerit points that should have been incurred because of the Traffic Infringement had not yet been recorded against the Applicant’s driving record;
vi) In light of that review, the Respondent asked the Applicant to monitor his driving record and immediately inform the Respondent once the demerit points (and subsequent suspension of licence) had taken effect;
vii) On 25 February 2019, the Applicant’s licence was suspended; and
viii) On 11 March 2019, the Applicant informed the Respondent that his licence had been suspended.
Matters to be taken into account
[17] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.394(3) of the Act, which reads:
“Application for unfair dismissal remedy
…
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position”.
[18] The meaning of “exceptional circumstances” was considered by a Full Bench of (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) 22as follows:
“[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.”
[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance”. (emphasis added)
[19] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.23
[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.24
Reason for the delay
[21] The Applicant advanced three reasons for the delay:
a) Representative error on behalf of the TWU (Representative Error Reason);
b) Poor English-language skills (Language Reason); and
c) General feelings of distress following his termination (Distress Reason).
Representative Error Reason
[22] The Applicant submits that the delay was a result of representative error. In summary, the Applicant says that the TWU made representations that it would file an unfair dismissal on the Applicant’s behalf and that the Applicant relied on those representations. Despite those representations, however, the TWU did not file his unfair dismissal application, and only clarified that it would not do so 20 days after the Statutory Deadline.
[23] Reliance on representative error as a reason for the late lodgement of an application was dealt with extensively in Clark v Ringwood Private Hospital (Clark). 25 In Davidson v Aboriginal Islander Child Care Agency,26 a subsequent Full Bench of the Australian Industrial Relations Commission summarised the general propositions in Clark, as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered”.
(emphasis added)
[24] The principles espoused in Clark have been considered and applied in decisions of this Commission. 27 I equally rely on those principles in this decision.
[25] Conversely, the Applicant relies on Paul Johnston v East Gippsland Real Estate Pty Ltd (Johnson), 28 and submits that I use this case as a comparator. In Johnson, an applicant’s legal representative withdrew the applicant’s claim without his instruction. The applicant brought a fresh application outside of the Statutory Deadline through a different legal representative. An extension of time was granted on the basis of the first legal representative’s error.
[26] The facts and circumstances of Johnston are distinguishable to the matter at hand. Commissioner Yilmaz’s decisionturns solely on the facts of that case and I do not seek to rely on the Commissioner’s ratio whatsoever.
[27] On the evidence before me, I do not accept that the circumstances of this case give rise to a finding of representative error. The Applicant’s evidence is contradictory to his submissions regarding representative error. The truth is that the Applicant was made aware of the Statutory Deadline on the day of his dismissal by Mr Skoro (which the Applicant confirmed in cross-examination). Further, the Applicant was made aware of the fact that the TWU would not be representing him in his unfair dismissal claim on 2 May 2019 (which was Mr Dosanjh and Mr Skoro’s evidence).
[28] In light of the weight of the evidence before me, the Applicant did not do anything to lodge his claim between 2 May 2019 and the Statutory Deadline. Further, and noting that the Applicant was aware that he was not being represented by the TWU from 2 May 2019, the Applicant has not accounted for the delay between the Statutory Deadline and the eventual date for filing. It appears that the delay can only be attributed to the Applicant’s conduct; the Applicant can only be said to have “sat on his hands”, as it were.
[29] Further, and in the alternative, even if the Applicant were to explain the period between the expiry of the Statutory Deadline and the date of lodgement as being a result of representative error (which again I say he has not), the Respondent has nonetheless pointed to a further 24-hour delay between the Applicant contacting the Commission and lodging his application.
[30] By the Applicant’s own account, he contacted the Commission on 30 May 2019 and was told he had exceeded the Statutory Deadline. The Applicant has not accounted for that period of delay. When he contacted the Commission to discuss making an application, he could have made an application during that phone call.
[31] Alternatively, and noting his wife assisted him in completing his online form, the Applicant and his wife could have lodged that application form on 30 May 2019. Still, the Applicant and his wife filed a claim the following day, and the Applicant has not explained why he took that course of action. As such, there appears to be nothing exceptional about the delay.
Language Reason
[32] The Applicant submits that his “poor” English language skills contributed the delay. The Applicant merely asserted this submission in the abstract. He has neither provided evidence as to his English language skills (or lack thereof), nor has he explained exactly what he misunderstood as a result of his poor language abilities. As such, I reject the Language Reason leans toward any finding of exceptional circumstances (either alone or in conjunction with other factors).
Distress Reason
[33] I note that Mr Anthony briefly gestured toward the Applicant’s state-of-mind following his dismissal, and that his distress following his dismissal contributed to the delay. However, the evidence and submissions on this point were not sufficient for me to have regard to whether the Applicant’s distress was in any way out of the ordinary or exceptional. Beyond the bare assertions of the Applicant, I do not take his distress to be anything other than that ordinarily encountered by an employee following termination of employment.
Conclusion regarding reason for delay
[34] There is no acceptable reason for the delay. It appears, to me, that any delay was caused only by inaction on the Applicant’s behalf. Even if I were to take the Applicant’s case as he asserts it (i.e. that he was relying on the TWU to file his claim), the fact that the Applicant was aware of the Statutory Deadline five days prior to it expiring, and that he did not seek to, at the very least, confirm with the TWU that the application had been lodged, would be enough to place him outside the category of cases where representative error has been found to have occurred.
[35] Ultimately, though, and on the findings of fact referred to above, the delay is entirely one of the Applicant’s own making. I find that the reasons for delay do not weight in favour of finding as to exceptional circumstances.
Whether the Applicant first became aware of the dismissal after it had taken effect
[36] It is not in contest that the Applicant was made aware of the dismissal on the date his employment was terminated. This factor is of neutral consideration.
Action taken by the Applicant to dispute the dismissal
[37] Neither party advanced any substantive submission regarding this factor. In my view, it should be given neutral consideration.
Prejudice to the employer
[38] Neither party advanced any substantive submission regarding this factor. In my view, it should be given neutral consideration.
Merits of the application
[39] As per the Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd: 29
“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case”.
[40] The thrust of the Applicant’s claim is that the Respondent’s decision to terminate his employment was harsh, given the extent of his services and his alleged “oversight” regarding the status of his licence.
[41] I note that this argument is not without merit. That said, I neither seek to make a finding on the evidence or the merits of such a claim, nor am I required to for the purposes of determining whether there are exceptional circumstances. I note the significant issues the Applicant would have to overcome if he were to challenge the validity of the reason for his termination, and the process undertaken by the Respondent.
[42] That the Applicant’s claim is “not without merit” weighs in favour of finding exceptional circumstances (though, on the prima facie case before me, the weight is marginal at best).
Fairness as between the Applicant and other persons in a like position
[43] Neither party advanced any substantive submission regarding this factor. Further, I was not made aware of any person or persons in a like position. This factor is given neutral consideration.
Conclusion
[44] Mr Anthony continually pressed that to deny the Applicant an extension of time would be a “travesty of justice”. I fail to see such “travesty” in circumstances of the Applicant’s own making. The Applicant advanced a case that he was misled by the TWU as to their representation of him. On the evidence, the Applicant was advised that the TWU would not represent him in an unfair dismissal claim before the Statutory Deadline had passed. Further, the Applicant was made aware of that Statutory Deadline at the time of his dismissal, but did not make every effort to ensure that his claim had been lodged before that time. Moreover, the merits of the Applicant’s case are weak (and so too are his prospects of success).
[45] In view of my reasons above, I find that there are no exceptional circumstances within the meaning of sub-s.394(3) of the Act to warrant the Applicant being granted an extension of time to file his unfair dismissal claim. As such, the Applicant’s application for an unfair dismissal remedy is to be dismissed. An order to that effect will follow publication of this decision.
DEPUTY PRESIDENT BOYCE
Appearances:
Mr Len Anthony appeared for the Applicant.
Ms Fabiana James for the Respondent.
Hearing details:
A hearing was held in Sydney on 8 October 2019.
Printed by authority of the Commonwealth Government Printer
<PR716282>
1 Fair Work Act 2009 s.394.
2 Transcript PN165 to PN166, and PN173.
3 Transcript PN176 to PN177.
4 Transcript PN205.
5 Transcript PN206 to 208.
6 Transcript PN209.
7 Transcript PN216.
8 Transcript PN225.
9 Transcript PN248 to PN249.
10 Ibid.
11 Ibid.
12 Transcript PN252.
13 Transcript PN263 to PN264.
14 Transcript PN268.
15 Transcript PN284.
16 Transcript PN269 to PN 276.
17 Transcript PN280.
18 Transcript PN294.
19 Transcript PN296 to PN299.
20 Transcript PN315.
21 Transcript PN316 to PN317.
22 [2011] FWAFB 975.
23 [2019] FWCFB 2384 at [16] – [20].
24 Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]. See also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).
25 (1997) 74 IR 413.
26 (1998) 105 IR 1.
27 See: Officeworks Ltd v Parker[2014] FWCFB 5779 at [14]. See also: Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109; Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963; Lay v Bar's Leaks (Australia) Pty Ltd[2016] FWCFB 2647.
28 [2019] FWC 5483.
29 Print T2421 (AIRCFB, 10 November 2000) at [14].
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