Dong Khan Pau Guite v Inghams Enterprises Pty Limited

[2024] FWC 2216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Dong Khan Pau Guite
v

Inghams Enterprises Pty Limited

(U2024/7713)

COMMISSIONER THORNTON

ADELAIDE, 19 AUGUST 2024

Application for an unfair dismissal remedy – Extension of time – no exceptional circumstances – application dismissed.

Mr Guite seeks an extension of time in which to file his unfair dismissal application. It is not in dispute that he was dismissed for serious misconduct on 20 May 2024. Mr Guite disputes that he committed the misconduct alleged. He filed his application for unfair dismissal on 3 July 2024, being 23 days after the 21-day statutory time period had elapsed.

The Applicant filed a witness statement and submissions in support of his application and the Respondent filed submissions in support of their objection to the extension of time. The matter proceeded as an in person hearing on 9 August 2024. Mr Guite was assisted in the hearing by an interpreter in his preferred language of Mizo Chin.

For the reasons set out in this decision, I find there were no exceptional circumstances in this matter that could form a basis for extending the time for Mr Guite to file his unfair dismissal claim.

Background facts

Mr Guite had been employed by the Respondent at their Bolivar chicken factory since 3 December 2021.

On 10 May 2024, there was an incident in the carpark between Mr Guite and his partner and co-worker, Ms Sai Doi Chuntei. A security guard in the carpark witnessed the incident between Mr Guite and his partner and later reported the incident to the Respondent.

Also on 10 May 2024, Mr Guite was arrested at his home for the alleged assault of his partner and was in custody overnight before being released on bail the following day. After his release on bail, he consulted a criminal lawyer at the firm Doconade Lawyers whom he engaged to represent him to defend the criminal assault charges. He had previously consulted the same law firm for another matter in the recent past.

On 17 May 2024, the Respondent issued a letter to Mr Guite alleging that he was “witnessed hitting a female colleague”[1] and offering Mr Guite an opportunity to show cause as to why he should not be subject to disciplinary action, including termination of employment. It was clear that both parties knew the female colleague to also be Mr Guite’s partner. He was invited to attend a meeting to discuss the allegations on 20 May 2024.

Mr Guite accepts that an incident occurred on 10 May 2024 but denies that he hit Ms Chuntei. He does not accept that the behaviour he directed towards Ms Chuntei was serious misconduct.

A meeting to discuss Mr Guite’s response to the allegations took place on 20 May 2024. At the meeting the Respondent showed Mr Guite CCTV footage of the incident for his response. The Applicant did not bring a support person to the meeting.

At…

CaseChat Overview and Summary

The Fair Work Commission (FWC) dealt with an application for an unfair dismissal remedy in the case of Dong Khan Pau Guite against Inghams Enterprises Pty Limited. Mr Guite sought an extension of the statutory time limit to file his unfair dismissal application, which he missed by 23 days. The Commission was required to determine whether exceptional circumstances existed to warrant an extension of time under section 394(3) of the Fair Work Act 2009. Mr Guite argued that his difficulties with the English language, lack of understanding of Australian law, and focus on defending criminal charges related to the incident that led to his dismissal constituted exceptional circumstances. The Respondent argued that these factors did not justify an extension of time.

The Commission considered various factors under section 394(3) of the Act, including the reason for the delay, whether Mr Guite became aware of the dismissal after it had taken effect, any action he took to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between Mr Guite and other persons in a similar position. The Commission found that Mr Guite's reasons for delay did not constitute exceptional circumstances, as he did not take satisfactory steps to address his dismissal promptly and instead relied on family and friends who were also unfamiliar with Australian law. The Commission also found that the merits of the application, while arguable, did not clearly favour Mr Guite, and that extending the time for him would not ensure fairness to other applicants in similar situations. Consequently, the Commission concluded that no exceptional circumstances existed and dismissed the application for an extension of time. The unfair dismissal claim was therefore dismissed as untimely.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established