Deng Juach v Spotless Group Limited T/A Spotless
[2012] FWA 10011
•26 NOVEMBER 2012
[2012] FWA 10011 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Deng Juach
v
Spotless Group Limited T/A Spotless
(U2012/12664)
COMMISSIONER DEEGAN | CANBERRA, 26 NOVEMBER 2012 |
Application for unfair dismissal remedy, extension of time, time not extended, application dismissed.
[1] At the conclusion of the hearing of this matter on 1 November 2012 I advised the parties that I had decided not to allow the applicant further time to lodge his application and, as the application had been lodged more than 14 days after the termination of his employment took effect, the application was, therefore, dismissed. I further advised that I would publish my reasons for refusing to allow further time for the lodgement. These are those reasons.
[2] On 24 August 2012 Mr Deng Juach lodged an application pursuant to s.394 of the Fair work Act 2009 (the Act) seeking relief for the termination of his employment by Spotless Group Limited trading as Spotless (the respondent).
[3] The application filed stated that the applicant had been notified of his dismissal on 29 February 2012. The application was not filed within the 14 day time limit allowed by s.394(2) of the Act.
[4] The respondent objected to the matter being conciliated prior to the determination of the out of time issue. A conciliation listed for 18 September 2012 was cancelled and the matter listed for hearing of the preliminary question on 28 September 2012.
[5] On 27 September 2012 Ms Flanagan, an employee of the Multicultural Youth Services ACT advised that the applicant was in Darwin and was unable to attend the hearing. She appeared to be confused as to the nature of the proceedings set down for 28 September 2012 (referring to the applicant’s inability to attend the “meeting” on that day) but advised that she would still be attending the “meeting” on the applicant’s behalf.
At the hearing on 28 September the applicant did not appear but was represented by Ms J Flanagan, The respondent was represented by Mr J. Douglas, General Manager Human Resources. The applicant’s supervisor, Mr Lino Nascimento also attended the hearing. It was clear that the matter could not proceed on 28 September 2012 in the applicant’s absence as facts were in dispute and evidence required.
[6] The matter was adjourned to allow Ms Flanagan time to seek legal advice and to confer with the applicant as to whether the application was to be pursued.
[7] On 4 October 2012 Ms Flanagan advised that the applicant did wish to continue with his application and the matter was relisted for hearing.
[8] At the hearing on 29 October 2012 evidence was given by the applicant and by Mr Lino Nascimento, Customer Services Supervisor, on behalf of the respondent.
[9] It was the applicant’s evidence that he had worked for the respondent as a cleaner from August 2010 until he was notified of his dismissal on 29 February 2012. He claimed that he had been dismissed because he had refused to return to work early from a period of two weeks of leave he had arranged in order to attend a security training course. It was the applicant’s evidence that when he contacted Mr Nascimento and Mr Bracken, the respondent’s Branch Manager on 13 March 2012 and queried his termination he was offered another position, which he refused as he claimed it was a casual position whereas previously he had been permanently employed. He also claimed that Mr Nascimento and Mr Bracken had informed him that the matter of his termination was no longer in their hands but would need to be referred to the respondent’s personnel area.
[10] The applicant claimed further that from March 2012 until he lodged his application in August 2012 he continued to make contact with his former employer by telephone. He had made numerous calls to Mr Nascimento and had also tried to call Mr Bracken. He had then made contact with other representatives of the respondent including the a State Manager for Queensland and New South Wales but his calls were ignored or the people he contacted were unable to assist. The applicant also stated that he had at no time received a letter of termination from the company.
[11] In August 2012 the applicant had sought advice from Ms Flanagan and on 24 August he lodged his s.394 application. In essence it was the applicant’s case that he had not taken any action earlier to pursue his dismissal in Fair Work Australia as he was pursuing the matter directly with the respondent.
[12] The respondent called Mr Nascimento to give evidence at the hearing. He noted that the applicant had taken approved leave from the respondent from sometime in December 2011 until mid-February 2012 for the purpose of travelling overseas. It was Mr Nascimento’s evidence that the Applicant did not return to work until a week later than he was supposed to and made no contact with the company in relation to his absence. Mr Nascimento also stated that after working for only a few days the applicant informed him that he would need to take four days leave in order to undertake a security course. Mr Nascimento was not happy with this news given that the applicant had only just returned, belatedly, from leave. According to Mr Nascimento the applicant did not request the leave but merely advised that he would need to have four days off to undertake a security training course. At the time Mr Nascimento had expected the applicant to return to work the applicant had telephoned him and advised that he required a further week’s leave as he had not finished the course. Mr Nascimento had advised the applicant that if he did not return to his employment he would lose it. The applicant did not return and another person was employed in his position. When the applicant attended at the workplace after a week or so he was informed that his position was no longer available but there was another position he could have. The applicant declined the offer of the other position.
[13] Where the evidence of the applicant and that of Mr Nascimento differed, I preferred the evidence of Mr Nascimento. Mr Nascimento presented as a truthful witness giving a frank account of the facts as he recalled them. He was forthright in giving evidence that may have supported the applicant’s position and admitted freely to matters he was unable to recall. Mr Nascimento did not attempt to reconstruct events if he was unable to recall the details. The applicant was less forthright in his answers to questions. In particular it was the evidence of Mr Nascimento that the applicant was a week late in returning from his holidays in February 2012 and had not advised him that he would be delayed. The applicant’s evidence was presented so as to give the impression that he had been only one day late and had sought his employer’s approval. I am satisfied that Mr Nascimento’s account of this matter was the correct one and that the applicant had related the story so as to put his own actions in a better light.
[14] At the conclusion of the hearing, I determined the question of whether to allow further time for lodgement having regard to those factors set out at s.394(3) of the Act.
[15] The only reason given by the applicant for failing to lodge his application until 163 days after the time for lodgement had expired was that he was attempting to clarify his employment status with representatives of the company contacted his former supervisor, the Branch Manager and representatives of head office about his situation over the months following the termination. He lodged an application as a result of receiving advice from Ms Flanagan.
[16] I was satisfied on the evidence that the applicant was aware on 29 February 2012 that his employment had been terminated. He was informed by Mr Nascimento and Mr Bracken, that he no longer had a position with the respondent and he immediately approached Centrelink to apply for unemployment benefits.
[17] While I accepted that the applicant made a number of phone calls to the respondent questioning the termination of his employment I was also satisfied that not all of his phone calls to the respondent’s representatives were for that purpose. The evidence was that at least one related to employment in the security field and others appeared to be related to an address change for the purpose of receiving a group certificate.
[18] I took into account that there was some prejudice to the respondent caused by the delay in lodgment as at least one employee who may have been required as a witness for the company had left its employ.
[19] It was my view that there was little, if any, merit in the applicant’s substantive claim if the evidence of Mr Nascimento that the applicant was not granted leave to undergo the security training course and had refused to return to work when directed to do so was accepted. This however was a neutral consideration to the question of whether a further period of time should be allowed for lodgment of the application.
[20] I do not believe the criterion at 394(3)(f) has any application to this matter.
[21] Taking all the above matters into account I was not satisfied that exceptional circumstances existed such that I should allow the applicant further time in which to lodge his application. I am satisfied that he was aware that his employment had been terminated and though hopeful for some time that the decision might be reversed was not under any misapprehension as to his employment status. I do not believe the applicant failed to lodge an application because he was confused about whether or not he had been terminated.
[22] I accepted that while there may have been some doubt whether the termination arose from the applicant’s abandonment of his employment or a decision of the respondent to terminate as a result of his refusal to return to the workplace when directed to do so, there was no doubt that as of 29 February 2012 the applicant was aware that his employment had been terminated.
[23] As there were no exceptional circumstances surrounding the applicant’s failure to lodge within the prescribed time limit no additional time was allowed for lodgment the application was dismissed.
COMMISSIONER
Appearances:
Ms Flanagan for the Applicant
Mr Douglas, General Manager Human Resources, for the Respondent
Hearing details:
2012.
Canberra:
September, 28
November, 1
Printed by authority of the Commonwealth Government Printer
<Price code A, PR531749>
0
0
0