Elmer Jose v Swissport Pty Ltd
[2024] FWC 1100
•26 APRIL 2024
| [2024] FWC 1100 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Elmer Jose
v
Swissport Pty Ltd
(C2024/587)
| COMMISSIONER CRAWFORD | SYDNEY, 26 APRIL 2024 |
General protections dismissal dispute - application filed out of time – application four minutes late - steps taken to dispute dismissal – extension granted
BACKGROUND
Elmer Jose (Mr Jose) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Jose’s allegations that he was dismissed from his employment with Swissport Pty Ltd (Swissport) in contravention of Part 3-1 of the FW Act.
Mr Jose commenced employment with Swissport on 17 July 2023. Swissport provides airport ground services. Mr Jose was employed as a Gate Lead at Sydney Airport.
Mr Jose was terminated on 10 January 2024 on the basis that he had not successfully completed his probationary period.
The Commission’s records indicate Mr Jose’s application was filed using the Commission’s online lodgment service at 12:04am on 1 February 2024.
Swissport has objected to Mr Jose’s general protections application on the ground that the application is out of time.
I issued directions for the filing of material in relation to whether I should grant an extension of time and listed the matter for hearing via video on 4 April 2024.
Mr Jose was represented by Michael Thurn at the hearing on 4 April 2024. Swissport was represented by Katie Foster (Manager Human Resources and Employee Relations).
During the hearing on 4 April 2024, Mr Thurn argued Mr Jose does not need an extension of time to file the application because any delay was caused by technical issues with the online lodgment service. After hearing from both parties, I informed the parties I had decided that Mr Jose does require an extension of time because the application was filed four minutes late. The time that the application was submitted is recorded on the application form as 00:04:45 on 1 February 2024. Mr Jose provided no evidence to undermine the accuracy of the time recorded on the application and no evidence of any technical issues.
After I informed the parties that I had decided Mr Jose does need an extension of time, Mr Thurn indicated he was not ready to proceed with evidence and submissions concerning whether an extension of time should be granted based on the factors in s.366(2) of the FW Act. Mr Thurn sought an opportunity to lead further evidence in relation to the cause of the delay. This request was opposed by Swissport. I decided on balance to provide Mr Jose with an opportunity to file additional evidence and submissions, and to provide Swissport with an opportunity to file material in response. I was concerned about Mr Jose not being provided with a full opportunity to argue his case in circumstances whereby his application will be dismissed if an extension is not granted. I was also conscious of the objects for Part 3-1 which appear in s.336 of the FW Act and are focused squarely on providing protection to affected persons.
I issued directions for the filing of further material and listed a further hearing regarding whether an extension of time should be granted to Mr Jose via video on 23 April 2024.
MATERIAL FILED
Mr Jose
Mr Jose relied on the following material in support of the granting of an extension of time for the filing of his application:
· Mr Jose’s Form F8. The form is dated 31 January 2024 and indicates the application was filed within 21 days of the dismissal taking effect. A copy of Mr Jose’s termination letter was attached to the application. I marked the form and its attachment Exhibit A1.
· A submission dated 25 February 2024 filed in response to Swissport’s Form F8A response form. The submission was prepared by Mr Thurn. I marked the submission Exhibit A2.
· An email from Mr Thurn to the Commission dated 15 March 2024. The email contains evidence about why the application was filed late and has a screenshot containing information about computer files relating to Mr Jose’s application. I marked the email and the attachment Exhibit A3.
· An email from Mr Jose to Brad Moore (Head of Asia Pacific) dated 11 January 2024. Mr Jose raises concerns about his dismissal in the email. I marked the email Exhibit A4.
· An email from Mr Jose to Christopher Rayner (Chief People Officer) dated 16 January 2024. Mr Jose indicates in the email that Mr Moore did not respond to his previous email and raises concerns about his dismissal. I marked the email Exhibit A5.
· An email from Mr Jose to Frank Dobbelsteijn (Head of Global Operations) dated 23 January 2024. Mr Jose requests assistance from Mr Dobbelsteijn in the email. I marked the email Exhibit A6.
· An email thread between Mr Jose, Joanna Bartlett (Customer Service Duty Manager) and Kareem Metlej (Customer Service Manager) concerning Mr Jose’s termination payments. The emails confirm Swissport initially failed to make a payment in lieu of notice to Mr Jose and that the payment would be processed urgently. I marked the email Exhibit A7.
Mr Jose and Mr Thurn were not cross-examined on their evidence.
Mr Thurn provided a brief email submission dated 12 April 2024 which referred to the steps taken by Mr Jose to dispute his dismissal and had the relevant emails attached.
Mr Thurn also provided oral submissions and reply submissions at the end of the hearing.
Swissport
Swissport relied on its Form F8A response form, an outline of submissions dated 20 March 2024 and an outline of reply submissions dated 18 April 2024 in opposing the granting of an extension of time. Given the Form F8A contains evidence about the dismissal, I marked this Exhibit R1. Ms Foster was not cross-examined on any of the evidence.
Ms Foster also provided oral closing submissions at the end of the hearing.
CONSIDERATION
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
As stated above, it is a matter of record that the application was made at 12:04am on 1 February 2024.
When did the dismissal take effect?
It is not in dispute, and I find, that Mr Jose’s dismissal took effect on 10 January 2024.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 10 January 2024. The final day of the 21-day period was therefore 31 January 2024 and ended at midnight on that day. The application was lodged at 12:04am on 1 February 2024. The application was made four minutes late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by Mr Jose to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between Mr Jose and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 31 January 2024. The delay is the period commencing immediately after that time until 12:04am on 1 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
Mr Jose does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Jose has not provided any reason for any part of the delay.[5]
The reason Mr Jose has provided for the delay in filing has not been entirely consistent throughout the proceeding. Based on all the evidence, the explanation appears to be:
1. Mr Jose was initially focused on attempting to resolve his dispute about the dismissal directly with Swissport. I accept the evidence establishes that this occurred via emails Mr Jose sent to Mr Moore on 11 January 2024, Mr Rayner on 16 January 2024, and Mr Dobbelsteijn on 23 January 2024.
2. Mr Jose and his representative Mr Thurn were conscious of the 21-day filing period and intended to file the application prior to midnight on 31 January 2024.
3. The process of filing an online application appears to have taken longer than Mr Thurn anticipated, and he missed the deadline on behalf of Mr Jose by around four minutes.
There is significant overlap in this case between the reason for the delay and the next factor I need to consider, which is action taken to dispute the dismissal. I intend to primarily consider the emails sent by Mr Jose to senior Swissport managers as actions taken to dispute the dismissal.
I consider it was unwise for Mr Jose and Mr Thurn to wait until literally the last minute to commence the process of filing Mr Jose’s unfair dismissal application. I do not consider the emails Mr Jose had sent contesting his email to Swissport managers justified waiting until the last minute to file the application. Mr Jose and Mr Thurn have not provided evidence of any specific technical issues that arose during the online filing process.
I do not consider Mr Jose has provided a satisfactory explanation for the delay in filing his unfair dismissal application. I consider this factor weighs against granting an extension of time. However, I consider this factor only marginally weighs against an extension being granted because the delay was only four minutes.
What action was taken to dispute the dismissal?
There is evidence that Mr Jose attempted to contact three senior Swissport managers to dispute his dismissal on 11 January 2024, 16 January 2024, and 23 January 2024.
I do not consider these actions should be disregarded based on Swissport’s submission that Mr Jose should have contacted local level managers rather than Mr Moore, Mr Rayner and Mr Dobbelsteijn. Given Mr Moore is the head of the Asian region that Mr Jose was employed in, I do not consider it was unreasonable for Mr Jose to raise his grievance with Mr Moore. It is unclear why Mr Moore seemingly decided to ignore Mr Jose’s email. I also do not consider it was unreasonable for Mr Jose to escalate his grievance to Mr Rayner, the Chief People Officer, after receiving no response from Mr Moore. The fact that Mr Rayner is based in Switzerland does not appear overly relevant given his position has a global reach. It is unclear why Mr Rayner seemingly also ignored Mr Jose’s email. I accept it would be unrealistic to expect Mr Dobbelsteijn as Head of Global Operations to respond to Mr Jose’s email. However, I can understand why Mr Jose attempted to contact Mr Dobbelsteijn having received no response whatsoever from Mr Moore and Mr Rayner.
I consider these actions taken by Mr Jose to dispute his dismissal weigh significantly in favour of a finding of exceptional circumstances and the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
I do not consider Swissport will suffer any significant prejudice if an extension of time is granted for Mr Jose’s application. The delay was only four minutes. The delay would have had no practical impact on Swissport’s ability to defend the application. I consider prejudice to Swissport to be a neutral factor.
What are the merits of the application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[6]
Mr Jose alleges in the application that Swissport took adverse action against him for discriminatory reasons in contravention of s.351 of the FW Act, and because of a temporary absence due to illness or injury in contravention of s.352 of the FW Act.
In relation to the allegation of discrimination, Mr Jose identified the relevant protected attributes as: race, sexual orientation, physical or mental disability, national extraction and/or social origin. Mr Thurn referred to several Swissport employees that worked with Mr Jose being from a Middle Eastern background and that this resulted in negative treatment of Mr Jose, who is not from a Middle Eastern background. I did not find this point to be persuasive. I accept Ms Foster’s submission that Swissport is a very large global business that employs people from various backgrounds and with various attributes. Ms Foster had reviewed Mr Jose’s employee file and indicated there was no evidence of any complaint being made by Mr Jose about discriminatory treatment. I consider Mr Jose’s allegations at this stage represent a “scattergun approach” and they lack specificity and substance. I consider the merits of this allegation to be low based on the filed material. This is particularly the case given I raised with Mr Thurn during the first hearing on 4 April 2024 that I was concerned about the lack of specificity with this allegation and invited Mr Jose to address the issue when filing further material. No further information was provided.
However, I consider there may be some merit to the allegation that Mr Jose’s temporary absence from work due to illness or injury may have been a reason for his dismissal. Ms Foster stated during the hearing that she had reviewed Mr Jose’s employee file and specifically referred to Mr Jose’s attendance as one of the issues that led to him being dismissed towards the end of his probationary period. Ms Foster also referred to a lack of notice ahead of an absence as being something often recorded by a supervisor in an employee’s file. Given Swissport has not provided Mr Jose’s employee file to the Commission, it is not currently possible to assess whether Swissport’s concerns about Mr Jose’s attendance could be captured by the protection in s.352 of the FW Act. I consider it is conceivable on the limited evidence that they could be.
I have determined Mr Jose’s allegations of discrimination currently lack merit. However, I have found that there may be some merit to his allegation that Swissport took adverse action against him for reasons that included his temporary absence from work due to illness or injury.
In the circumstances, I consider the merits to be a neutral factor.
Fairness as between Mr Jose and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[7] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[8]
Neither party made a persuasive argument that this factor weighs in favour of their respective positions. I consider this to be a neutral factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[9] Exceptional circumstances may 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 can be considered exceptional.[10]
Having regard to all of the matters listed at s.366(2) of the FW Act, I am marginally satisfied that there are exceptional circumstances.
I consider the significant steps taken by Mr Jose to dispute his dismissal directly with Swissport to weigh significantly in favour of a finding of exceptional circumstances. Although I was not satisfied regarding Mr Jose’s reason for the delay in filing, the delay was only four minutes. In circumstances where I have found there could be some merit to one of Mr Jose’s alleged contraventions depending on what further evidence is provided, I consider there are exceptional circumstances based on a combination of all relevant factors.
Conclusion
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.
Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[11] I am satisfied that it is appropriate to extend the period for the application to be made to 1 February 2024.
The dispute will proceed to be listed for conference.
COMMISSIONER
Appearances:
Mr Thurn representing Mr Jose.
Ms Foster representing Swissport.
Hearing details:
2024.
4 April.
23 April.
Via video.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].
[8] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Fair Work Act 2009 (Cth) s 577.
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