Dong Khan Pau Guite v Inghams Enterprises Pty Limited
[2024] FWC 2216
•19 AUGUST 2024
| [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 some point on the same day the Respondent determined that Mr Guite had committed serious misconduct and communicated the summary termination of his employment by letter dated 20 May 2024.
Mr Guite consulted his criminal lawyer again on 3 July 2024 when he reported the termination of his employment and was referred to another lawyer in the same firm with relevant expertise, Mr Brug. Mr Guite instructed Mr Brug to act for him and to file his unfair dismissal application. Mr Brug acted on those instructions and filed the application on the same day he received instructions.
Consideration of factors in section 394(3) of the Act
The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[2]
Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[3]
Section 394(3) of the Act requires that when considering whether exceptional circumstances exist, the Commission must take into account the following matters:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. These considerations will now be weighed in the context of this application.
Section 394(3)(a) The reason for the delay
The reason for the delay in itself is not required to be exceptional. Rather, the reason for the delay is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
Mr Guite submitted that his reasons for delay were:
(a)His difficulties speaking English;
(b)A lack of understanding of Australian law on account of growing up in countries other than Australia; and
(c)His focus on dealing with the practical and psychological impact of the criminal proceedings that followed his arrest.[5]
Mr Guite’s witness statement set out in some detail, his journey of arriving in Australia as a refugee from Myanmar, also known as Burma.[6] He described the significant challenges he faced with persecution in Myanmar for his religious beliefs and then living in a refugee camp in India for two years before being assisted by the United Nations High Commissioner for Refugees to be resettled in Australia in December 2010.
Mr Guite’s statement set out his challenges speaking and writing in English. His evidence was that he learned some English after arriving in Australia, but that he does not have good English and can only “communicate a little bit.”[7] In giving his evidence, Mr Guite relied heavily on the interpreter to translate all questions and other verbal exchanges. It appeared to me by the sometimes unresponsive, evasive and repetitive answers he gave in both examination in chief and cross examination that he had difficulty giving evidence in the hearing. It was difficult to confirm the timeline of events from the Applicant’s evidence.
There was also evidence given by Mr Guite in examination in chief and cross examination about his proficiency in understanding English. Mr Guite confirmed that all work instructions were given to him in English, both verbally and in writing, he was required to complete written forms at work in English which he said he did by “copying answers”[8] and that while he had not sought translation of any work instructions into Mizo Chin, he knew how to perform his job by copying or following other workers and then developing his own experience over the two and a half years of his employment. These answers, given by Mr Guite in cross examination, did not suggest that he had a proficiency in English greater than what he had described earlier in his oral evidence or in his statement.
However, Mr Guite confirmed in his evidence that he understood the questions being asked of him in the meeting of 20 May 2024. He acknowledged that he was able to interact in the meeting and explained that he found the conversation “quite uneasy and complicated”.[9]
Mr Guite said in his witness statement: “But the major reason for the delay is that I am Burmese refugee, and I do not understand the laws in Australia, and that Fair Work actually even exist as it does not in Myanmar.”[10] This was supported by his oral evidence that he had “no understanding of the laws of Australia or knowledge of the laws” because he was not “born here.”[11]
Mr Guite’s representative emphasised in his submissions that I should be persuaded that exceptional circumstances exist on account of, amongst other reasons addressed below, “language and cultural barriers” and the Applicant’s “misunderstanding of the industrial relations laws”.[12]
Mr Guite gave evidence that he attempted to find information about whether he had options to address his dismissal by asking family and friends in his community. He asserted that the people he consulted in his community also had the same challenges with respect to understanding Australian law and did not offer helpful advice. He gave evidence that his father advised him to apologise to the Respondent and if he did so, the Respondent would offer to re-employ him. Mr Guite’s representative submitted that this was evidence of the cultural differences and lack of understanding of the law amongst Mr Guite’s friends and family. In any event, Mr Guite did not agree with or act on his father’s advice.
The Respondent argued that the reasons for delay relied on by the Applicant did not constitute exceptional circumstances. The Respondent relied on the decision of the Commission in Xiximei Wu v AAA Fresh Pty Ltd[13] (Xiximei) where the Commission refused to grant an extension of time to an applicant who advanced that a reason for her delay in filing an application was caused by her lack of awareness of the laws relating to unfair dismissal claims and that lack of awareness existed because she was a non-English speaker (referred to by her representative as a ‘language barrier’). The applicant in that case also argued that her focus on searching for work was another reason for the delay.[14]
In the matter of Xiximei, the Commissioner did not find there were any exceptional circumstances that would lead him to exercise discretion to extend the time for filing the application on account of the applicant being a non-English speaker, her ignorance of unfair dismissal laws or because she was looking for employment.
In respect of the applicant’s command of English, the Commissioner said:
“In relation to the Applicant’s limited understanding of the English language, I am not satisfied that this is, of itself, a factor warranting special consideration. If there was evidence before me that the Applicant had been seeking the assistance of an interpreter or similar services to assist her with the preparation of her application, and there were delays associated with that, that might be an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances. However, this is simply a case that the Applicant was not aware of her rights and focused her priorities on seeking new employment. That is not a criticism of the Applicant, but rather a natural response in the circumstances.”[15] (footnotes omitted).
In the matter of Musoni v Canberra Construction Recyclers[16] (Musoni), Deputy President Roberts accepted that the Applicant’s “limited command of English would have created some difficulties for him in obtaining advice and preparing an unfair dismissal application. This would include providing instructions to a lawyer about his situation”.[17] However, the Deputy President held: “I do not think the reasons proffered by the Applicant satisfactorily explain the period of the delay and this weighs against a conclusion that there are exceptional circumstances.”[18]
Mr Guite’s representative argued that the Applicant’s focus on dealing with his arrest and subsequent criminal charges was another explanation for the delay. There was little evidence given by the Applicant about what defending the criminal charges involved. The Applicant gave evidence that when he was in gaol overnight following his arrest that he “felt bad and angry” and this caused him to then speak to his lawyer about the dismissal. Mr Guite’s witness statement does not address the arrest and criminal charges nor the impact it had on him in the days following his dismissal in any detail. I find that the arrest and criminal charges do not provide a satisfactory explanation for the delay.
I further find that the Applicant’s difficulties with speaking English and subsequent lack of understanding of the law do not provide a satisfactory explanation for the delay in filing his claim. In reaching this view I have considered the context in which Mr Guite ultimately obtained legal advice in respect of his unfair dismissal claim. I appreciate that initially he did not understand that he could take any action to address his dismissal by filing this claim and that his command of English would have contributed to his lack of understanding. However, Mr Guite was already engaging with a lawyer in respect of his criminal matter. He had the capacity to seek legal advice in respect of his arrest.
Instead of promptly contacting his criminal lawyer about his dismissal from employment that resulted from the same situation that led to his arrest (and then being referred to a lawyer with the correct expertise), Mr Guite sought advice from his family and friends in his community. His evidence was to the effect that he sought advice from people with their own lack of knowledge of Australian law and challenges communicating in English rather than the lawyer or the law firm whom he had already engaged to act for him in the criminal matter.
This is also a matter, akin to the circumstances in Xiximei, where the Applicant was not aware of his rights and likely focused his priorities on defending the criminal charges against him. This is not a criticism of Mr Guite and is understandable in the circumstances.
In the often-cited case of Nulty v Blue Star Group Pty Ltd,[19] the Full Bench noted that ignorance of the statutory time limit in unfair dismissal claims is not an exceptional circumstance: “unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy”.[20]
I do not consider the reasons advanced by Mr Guite as satisfactory reasons for the delay. This factor weighs against a finding of exceptional circumstances.
Section 394(3)(b) whether the person first became aware of the dismissal after it had taken effect
Mr Guite submitted that he was not provided with the letter of allegations or his termination letter in his preferred language and that all correspondence with him was only in English. However, Mr Guite did not argue that the failure to translate the letters to him of 17 or 20 May 2024 had led to him not understanding what occurred at the meeting or that he had been dismissed on 20 May 2024.
During his evidence, Mr Guite expressed his frustration that the officers of the Respondent in the meeting, when advising of the outcome of the disciplinary process, expressed their findings using the phrase “we believe” when confirming they found the assault had occurred rather than making clear they found the assault occurred as a matter of fact. However, Mr Guite notes in his witness statement that he “was dismissed on or around 20 May 2024”[21] and confirmed in his evidence that he understood his employment was terminated on 20 May 2024.
Consequently, Mr Guite had the balance of the 21 days following his dismissal to seek advice and information about addressing his termination and to file his claim. This consideration does not weigh in favour of a finding that exceptional circumstances exist.
Section 394(3)(c) any action taken by the person to dispute the dismissal
Mr Guite emphasised in his submissions that he “tried to seek help”, that he “took active steps” to investigate his options by speaking with family and friends, and he was not simply “sitting at home… waiting for time to pass.”[22]. However, this submission was not clearly put as a submission that Mr Guite took steps to dispute his termination after the termination had been communicated to him. In the event Mr Guite is arguing that seeking advice from family and friends is taking steps to dispute the termination I do not accept that those actions constitute actions taken to dispute the dismissal.
There was otherwise no evidence put that Mr Guite took any steps to dispute the termination other than denying the allegations in the disciplinary process and then filing this claim. This consideration does not support a finding of exceptional circumstances.
Section 394(2)(d) prejudice to the employer
Neither party made submissions that the late filing of the application has caused the Respondent any prejudice.
Therefore, this consideration does not add weight either way as to whether exceptional circumstances exist in this matter.
Section 394(2)(e) the merits of the application
The Respondent outlines in their submissions that Mr Guite was witnessed assaulting his partner, who is also his co-worker, in the carpark of the Respondent’s premises on 10 May 2024. The Respondent says that the assault was witnessed by a security guard, who provided them with a statement about the event, and was also filmed on closed circuit television (CCTV).[23]
The Respondent says they stood Mr Guite down while they investigated the incident, set out the allegations in correspondence to him of 17 May 2024, showed Mr Guite the CCTV footage, allowed him an opportunity to respond to the allegations at a meeting on 20 May 2024 and offered him a support person at the disciplinary meeting.[24]
The Respondent found that Mr Guite had assaulted his partner and co-worker on their premises on 10 May 2024, that assaulting his partner and co-worker was serious misconduct and determined to summarily dismiss him, providing him with written confirmation on 20 May 2024.
Mr Guite denies he committed the misconduct as alleged.[25] In his witness statement filed in this proceeding he says that there “was an incident … when myself and my partner (who also works at Inghams) was at the Inghams carpark. … We were not at work at the time, but we were in the carpark. … It was alleged by Inghams that I hit her. … I deny hitting her.”[26]
The Applicant submitted a statutory declaration of his partner Ms Sai Doi Chuntei, wherein she says: “On or around 10 May 2024, I was not assaulted by my partner and work colleague Mr Dong Khan Pau Guite.”[27] Mr Guite also relies on the withdrawal by South Australia Police of subsequent criminal charges of common assault arising from the same incident as evidence that the assault did not occur and therefore, there was no valid reason for his dismissal.
The Applicant also made submissions that he was not afforded procedural fairness in the process, in particular that the allegations were not translated from English into Mr Guite’s preferred language, there was no independent investigation and no statement was taken from the Applicant.
The Respondent asserts that procedural fairness was afforded to Mr Guite. In submissions the Respondent said that the Applicant provided a statement during the investigation. The Respondent agreed that they did not translate the allegations into Mizo Chin but that the Applicant had received work directions in English for the entirety of his employment, they had an expectation that he could understand what was being said to him and Mr Guite did not at any stage of the process or the meeting of 20 May 2024 tell the Respondent that he did not understand what was being communicated to him or ask for translation.
The Respondent asserts that Mr Guite “elected not to have a support person present and … [was] comfortable to continue the meeting with no support person.”[28] Mr Guite in his evidence acknowledged that he did not bring a support person to the meeting, however, noted that he was not able to because the Respondent did not allow his wife to attend as his support person and he understood that he could only bring a support person “who had witnessed the incident”[29]. It was evident from Mr Guite’s evidence that he understood he could bring a support person, but he was confused about who he was entitled to bring with him. His oral evidence revealed that he did not understand that he could bring a support person unconnected to work or the events.
For the purposes of section 394(2)(e) of the Act, I only need to reach a view that the Applicant has an arguable case.
The Applicant absolutely denies the allegations. The partner and co-worker who was allegedly subject to the assault denies the conduct occurred. However, the Respondent says there was a witness to the conduct. Whether the conduct that the Respondent found to be serious misconduct in fact occurred would be a matter for evidence and a decision maker who had the benefit of hearing all of the evidence.
The argument as to whether procedural fairness was afforded to the Applicant, on the materials before me, is likely to favour the Respondent.
The Applicant’s case is arguable and the factual disputes between the parties can only be resolved after all of the evidence is heard. This factor weighs in favour of finding exceptional circumstances.
Section 394(3)(f) Fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[30] considered this criterion and said:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[31]
Regarding the consideration of fairness between the Applicant and persons in a similar position, the Applicant says in his witness statement: “Granting an extension for my application is a matter of fairness … Other individuals in similar positions who face language barriers and lack understanding of the legal system should not be disadvantaged.”[32]
Other matters in which Applicants seeking an extension of time to file unfair dismissal or general protections applications, asserting their difficulty communicating in English and lack of knowledge of the relevant law as the reason, have been refused. I have referred to the matters of Xiximei and Musoni earlier in this decision.
Deputy President Saunders refused an extension of time in the matter of Goyeneche v Corporate Cleaning Solutions (Qld) Pty Ltd,[33] where he said: “I do not accept the applicant’s argument that a combination of the fact that he speaks and understands very little English and, as a result, he has a very high level of ignorance of the law, together with the other matters relied on by the applicant, demonstrates the existence of exceptional circumstances.”[34]
Likewise in the matter of Nguyet Bui v ALSCO Pty Ltd[35] Deputy President Asbury, as she then was, decided no exceptional circumstances existed to form a basis for her to extend the time for an Applicant to file unfair dismissal proceedings after filing a general protections claim and then later deciding to file an unfair dismissal claim. The Deputy President noted: “The fact the Applicant asserts she had difficulty understanding the different applications because English is not her second language is also not, of itself, an exceptional circumstance.”[36]
In the matter of He v NSYD WC Pty Ltd[37], Deputy President Boyce “did not find that the Appellant’s limited proficiency of the English language was an exceptional circumstance.”[38]
In my view it would be unfair to applicants in a similar position to that of Mr Guite to allow his application to extend time. To do so would be inconsistent with other decided cases of the Commission and detract from ensuring fairness through application of similar principles in matters involving similar considerations. This consideration weighs against a finding that exceptional circumstances exist in this case.
Conclusion
Having regard to the matters I am required to consider under section 394(3) and the submissions of both the parties, I am not satisfied that there are exceptional circumstances in this case, either when considered individually or together. I have weighed the arguable merits of the case as a factor in favour of finding exceptional circumstances but given there is not clear merit to the case in favour of the Applicant, that consideration is outweighed by the absence of a satisfactory reason for the delay and the fairness between the Applicant and other persons in a similar position.
As I have not found that exceptional circumstances exist in this matter there is no basis for me to extend the time for Mr Guite to file his unfair dismissal claim. I decline to grant an extension of time under section 394(3). I order that the Applicant’s claim for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
B Brug of Doconade Lawyers with permission, with D Guite, the Applicant.
A D’Souza and T Lawson for Inghams Enterprises Pty Limited.
Hearing details:
Adelaide
2024
9 August.
[1] Letter of Respondent to Applicant dated 17 May 2024.
[2] Section 394(3) of the Act.
[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39].
[5] Summarised in Applicant’s closing oral submissions.
[6] Applicant’s witness statement dated 31 July 2024, at paragraphs 1 – 27.
[7] Transcript - at 30:33.
[8] Transcript - at 1:50:26.
[9] Transcript – at 2:03:18.
[10] Applicant’s witness statement dated 31 July 2024, at paragraph 75.
[11] Transcript - at 30:55 - 32:11.
[12] Transcript – at 2:54:35.
[13] [2021] FWC 5144.
[14] As above at paragraphs [15] and [16].
[15] As Above at paragraph [21].
[16] [2024] FWC 291. Permission to appeal was refused by the Full Bench in [2024] FWCFB 230.
[17] Above at [13].
[18] Above at [14].
[19] [2011] FWAFB 975.
[20] As above at [14].
[21] Applicant’s witness statement at paragraph 40.
[22] Transcript - at 16:42.
[23] Respondent’s submission dated 8 August 2024 at paragraphs 5 – 6.
[24] As above at paragraphs 3 – 7.
[25] See Form F2, Unfair dismissal application – paragraph 3.2
[26] Applicant’s witness statement at paragraphs 33 – 36.
[27] Statutory declaration attached to Form F2 – Unfair dismissal application.
[28] Letter of Respondent to Applicant dated 20 May 2024.
[29] Transcript – at 1:39:08.
[30] [2016] FWCFB 6963.
[31] As above at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] 750.
[32] Applicant’s witness statement at paragraphs 86 and 87.
[33] [2016] FWC 8387.
[34] Above at [19].
[35] [2022] FWC 20. Permission to appeal was refused [2022] FWCFB 60.
[36] As above at [37].
[37] PR750315.
[38] As referenced by the Full Bench in consideration of the Deputy President’s ex tempore decision in [2023] FWCFB 60 at [43](c).
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