Dut v Caterfare Pty Ltd

[2014] FWC 2859

[2014] FWC 2859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Dut
v
Caterfare Pty Ltd
(U2014/4724)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 1 MAY 2014

Application for unfair dismissal remedy - extension of time and jurisdiction - application for extension of time dismissed.

[1] Mr N Dut made an application under s.395 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment effective on 17 January 2014. Caterfare Pty Ltd (Caterfare) is cited as the respondent employer.

[2] Caterfare has raised two preliminary objections to the application:

● First, Caterfare contended that it was not the employer of Mr Dut and did not terminate his employment – there was no dismissal within the meaning of s.386 of the Act by Caterfare. This objection was brought on the basis that Mr Dut was an employee of Flexi Personnel Pty Ltd (Flexi), placed at Caterfare subject to a commercial labour-hire arrangement between Caterfare and Flexi.

● Secondly, Caterfare argued that the application was made beyond the 21 day period prescribed in s.394(2)(a) of the Act and there are no exceptional circumstances for allowing a further period for the application to be made under s.394(2)(b) of the Act.

[3] The second objection by Caterfare raises an initial matter under s.396 of the Act which must be decided before considering the merits of the application: the question of whether Mr Dut’s application was made within the period prescribed in s.394(2) (s.396(a)). The first objection goes to whether there was an unfair dismissal (s.385(a)) in that it was put that Mr Dut was not dismissed by Caterfare.

[4] Where a s.394 application is made “outside of the time period prescribed in s.394(2)(a) of the Act, no application had been made until allowed by the Commission under s.394(2)(b)”. 1 Accordingly, it is necessary to first consider and determine the second objection, based on the proposition that the application was made beyond the 21 day period prescribed in s.394(2)(a) of the Act and there are no exceptional circumstances for allowing a further period for the application to be made under s.394(2)(b) of the Act.

The relevant statutory provision

[5] When considering whether to exercise the discretion under s.394(2)(b) of the Act to extend the time for filing the application, the Fair Work Commission (the Commission) is required to take into account the factors contained in s.394 of the Act. That section is in the following terms:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as FWC allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if 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.”

Application of s.394 to the circumstances of Mr Dut’s termination

[6] Mr Dut performed work for Caterfare over a period of more than two years, subject to a commercial labour-hire arrangement between Mr Dut’s employer, Flexi.

[7] On 16 January 2014, an issue arose concerning the weighing of “the product” between Mr Dut and a Caterfare supervisor. 2

[8] Later on the 16 January 2014 Mr Dut received a telephone call from a Flexi manager or employee advising him that Caterfare no longer required him to continue the job at Caterfare. 3

[9] On 17 January 2014 Mr Dut attended the Caterfare site to offer an explanation of the issue which arose concerning the weighing of “the product” on 16 January 2014 to Caterfare Manager, Mr Phillips. Mr Phillips did not accommodate such an explanation. 4 Mr Dut had no further contact with Caterfare.5

[10] On the basis of Mr Dut’s application, it is clear that the application was made more than 21 days after the termination. His application states that he was notified of his dismissal on 16 January 2014 and it took effect from 17 January 2014. Accepting the second date as being the date the termination took effect, the application, if made 21 days after the termination, should have been made by Friday, 7 February 2014. The application was in fact made on Friday, 14 February 2014 – seven days late. The circumstances within s.36(2) of the Acts Interpretation Act 1901 (Cth) do not arise.

[11] The submission filed for the jurisdictional hearing lodged by Mr Dut went entirely to the merits of the application and are relevant only to s.394(3)(e) of the Act. They did not address any other matters in s.394(3) of the Act, including the reason for the delay. In his concluding submission during the hearing, Mr Dut accepted that he was not employed by Caterfare, 6 explaining that he had brought his application because Caterfare did not investigate the incident concerning Mr Dut’s failure to weigh “the product” on 16 January 2014.7

Consideration

[12] In Nulty v Blue Star Group Pty Ltd, 8 a Full Bench of the Commission considered the expression “exceptional circumstances” in s.394(3) of the Act:

“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.”

The reason for the delay

[13] In his application Mr Dut explained the late lodgement on the basis that he did not know his “legal right at first”. 9 This reason for the delay does not support a finding of “exceptional circumstances”. Mere ignorance of the statutory time limit is not an exceptional circumstance.10

[14] In later material filed, Mr Dut explained the late lodgement on the basis that he did not know he was “eligible to lodge [an] Unfair Dismissal Application during the termination” of his employment or that he was unfairly dismissed until he went to the Commission’s website and he was looking for assistance to fill out the Unfair Dismissal application form. 11

[15] Mr Dut elaborated on this in his evidence in the hearing:

● Mr Dut believed it was not fair to dismiss him because he forgot to weight “the product”; 12

● Mr Dut did know what to do because he was not familiar with the law; 13

● Around two weeks after he ceased work on 16 January 2014, 14 a friend told Mr Dut to look at the website of the Fair Work Commission;15

● Mr Dut looked for legal advice and accessed the Commission website in the first week of February; 16

● Mr Dut became aware of the within 21 days for lodging his application when reading information on the Commission website; 17

● Mr Dut made his application a week later; 18 and

● Mr Dut explained the further delay on the basis that he was gathering information to lodge his claim and seeking advice from Legal Aid. 19

[16] Caterfare submitted that no acceptable explanation for the delay in lodgement was provided, submitting that ignorance of the time limits within s.394(2)(a) of the Act does not constitute an “exceptional circumstance” for acceptance of an application under s.394(2)(b).

[17] The explanation for the delay offered by Mr Dut for the delay was that he was initially ignorant of his rights and the 21 day period within s.394(2)(a). Mr Dut sought legal advice and accessed the Commission’s website in the first week of February, a week or so after being directed to it by a friend and then took a further week to lodge his application on the basis that he was seeking information and legal advice about his application.

[18] The initial ignorance by Mr Dut of his rights and of the statutory time limit, which contributed significantly to the delay, is not an exceptional circumstance. 20 The explanation of the further delay in accessing the Commission’s website and in lodging the application after becoming aware of the 21 day period is not an exceptional circumstance. The combination of reasons for the delay does not in my view adequately explain the delay and does not represent exceptional circumstances which would support a further period for Mr Dut’s application to be made.

Whether the person first became aware of the dismissal after it had taken effect

[19] Caterfare submitted s.394(3)(b) of the Act was a neutral consideration in circumstances where Caterfare had neither employed or dismissed Mr Dut.

[20] Mr Dut conceded that he was made aware of the termination on 16 January 2014, prior to it having effect on 17 January 2014. 21

[21] This consideration provides no support for a finding that there were exceptional circumstances warranting Mr Dut being allowed a further period for his application to be made.

Action taken by the person to dispute the dismissal

[22] Mr Dut conceded that he took no action, other than to lodge his application on 14 February 2014 to dispute the dismissal. 22 When the application was made it was not anticipated by Caterfare.

[23] This consideration provides no support for a finding that there were exceptional circumstances warranting Mr Dut being allowed a further period for his application to be made.

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

[24] Caterfare accepts that it would suffer no prejudice from the late acceptance of the application.

[25] The absence of any prejudice to Caterfare is a neutral consideration in that it neither favours nor acts against providing a further period for the application to be made.

The merits of the application

[26] There are two elements as to merit: the fairness of the termination and whether Caterfare had dismissed Mr Dut.

[27] In relation to the fairness of the cessation of Mr Dut’s work at Caterfare, where there is competing evidence as to the incident relied upon to terminate the employment, which would need to be tested in arbitration, it cannot be concluded that Mr Dut’s application was without merit.

[28] In relation to the second question, the evidence in relation to whether Caterfare employed and dismissed Mr Dut is not in dispute. Mr Hedley, the Human Resources Manager of Caterfare gave evidence 23 that Mr Dut was never engaged or employed by Caterfare and that Mr Dut undertook work at Caterfare subject to a commercial arrangement with Flexi to provide staff to carry out work for Caterfare.

[29] In his evidence, Mr Dut accepted that there was no employment contract between him and Caterfare, that there was an employment contract between him and Flexi, that he was paid by Flexi, and that his employment commencement was organised by Flexi. 24

[30] There is no dispute as to the evidence in relation to whether Caterfare employed (and dismissed) Mr Dut. He was not employed (or dismissed) by Caterfare. His application against Caterfare cannot succeed (s.385(a)).

[31] This consideration militates strongly against allowing Mr Dut a further period for his application to be made.

Fairness as between the person and other persons in a similar position

[32] I am not persuaded that this consideration arises in the circumstances of the present matter.

Conclusion

[33] Having regard to and balancing my findings in respect of the matters in ss.394(3)(a)–(f) of the Act, I am not satisfied that there are exceptional circumstances warranting a further period for Mr Dut to bring his application to be made beyond that prescribed in s.394(2)(a) of the Act. As to merit, there is no dispute as to the evidence which supports a finding that Mr Dut was not employed by Caterfare. In that circumstance, his application against Caterfare cannot succeed. Mr Dut provides no reasons for the delay in making his unfair dismissal application which can be regarded as unusual or extraordinary circumstances. Nothing in my findings in respect of the matters in ss.394(3)(a)–(f) constitute exceptional circumstances under s.394(3) of the Act.

[34] I decline to extend the time for lodgement of Mr Dut’s application.

[35] It is unnecessary to determine the further preliminary objection brought against Mr Dut’s application in respect of Caterfare.

[36] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

N Dut on his own behalf.

J O’Brien for Caterfare Pty Ltd

Hearing details:

2014.

Melbourne:

April 24.

 1   Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at paras 52–54 and ABC Transport Pty Ltd [2012] FWAFB 3212 at para 11.

 2   Transcript at para 93.

 3   Transcript at paras 96 and 97.

 4   Transcript at para 99.

 5   Transcript at para 122.

 6   Transcript at para 178.

 7   Transcript at para 179, see also the evidence of Mr Dut at para 164.

 8 (2011) 203 IR 1 at para 13.

 9   Form F2

 10 (2011) 203 IR 1 at para 14.

 11   “Extension of time for Unfair Dismissal Application” filed on 24 March 2014.

 12   Transcript at para 99.

 13   Transcript at para 99.

 14   Transcript at para 100.

 15   Transcript at para 99.

 16   Transcript at para 108.

 17   Transcript at para 109.

 18   Transcript at para 111.

 19   Transcript at paras 112–113.

 20 (2011) 203 IR 1 at para 14.

 21   Transcript at para 116.

 22   Transcript at para 130.

 23   Exhibit C1.

 24   Transcript at para 163.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550154>