Eriku Andruga v Southern Metropolitan Regional Council

[2015] FWC 7525

[2015] FWC 7525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eriku Andruga
v
Southern Metropolitan Regional Council
(U2015/12880)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Eriku Andruga alleged that the termination of his employment by Southern Metropolitan Regional Council on 24 August 2015 was unfair.

[2] His unfair dismissal application lodged on 15 September 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[13] 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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Mr Andruga gave evidence that he was unaware of his unfair dismissal rights until his friend told him at the last minute that he could lodge a claim. He was then one day late in lodging his application. He said he had poor literacy and needed assistance to fill in the form and his friend in fact completed the form for him. Mr Andruga was not sure of the dates his friend told him that he could make a claim for unfair dismissal. Mr Andruga said he could not read or write and he did not know where to get assistance.

[6] The Commission has generally taken the view that lack of knowledge of the ability to make an unfair dismissal claim is not a reasonable explanation for the delay in lodging an application. However, in this case, Mr Andruga suffers a particular disability. His first language is not English and he is unable to read or write. Mr Andruga required an interpreter to participate in the hearing. There was no evidence brought by the Council about Mr Andruga’s understanding of written or oral English.

[7] It was put that the Commission provides an interpreting service. That is true, but one requires a certain level of literacy to find this out. It was put that Mr Andruga’s disability did not prevent him lodging the claim however it does explain why his application was delayed. He had to rely on others to tell him of his rights and to assist him to make the application. I consider that Mr Andruga has a reasonable explanation for the delay and this weighs in favour of a finding of exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[8] Mr Andruga was notified of his dismissal on 24 August 2015. He had the full 21 days to lodge his application. However, I consider that due to his disability, this criterion is neutral.

(c) any action taken by the person to dispute the dismissal;

[9] Mr Andruga said he disputed his dismissal at the time. He said he rang Ms Glenda Kennison, the Human Resources Manager, and told her he should have been given a warning. The Council submitted that he did not dispute his dismissal. I consider this criterion to be neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[10] There was no evidence of any prejudice to the employer but it was submitted that lack of prejudice does not support a finding of exceptional circumstances and I agree. However, a lack of prejudice does weigh in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[11] The Council submitted that Mr Andruga abandoned his employment and that was the reason for termination. The Council gave evidence that Mr Andruga had been absent from work for the week prior to him taking annual leave. The Council accepted that he had notified them on 13 July 2015 that he was ill. Mr Graeme Jackson, his Team Leader, said that was OK and he would see him tomorrow. Mr Jackson said that when Mr Andruga did not attend work on 14 July 2015, he rang him and left a message but Mr Andruga did not return his call. Mr Richard Allen, the Senior Supervisor, also rang and left a message. On 15 July 2015, when Mr Andruga again did not attend work or call, Mr Allen called and left a message for him. On the same day, Mr Christopher Wiggins, the Executive Manager, sent Mr Andruga a letter advising that he needed to contact Mr Allen as soon as possible to notify him of his absence and to provide a medical certificate. Mr Andruga did not contact the Council for the rest of the week.

[12] Mr Andruga went on annual leave. There is a dispute between the parties about the duration of Mr Andruga’s annual leave. Mr Andruga gave evidence that he had completed an annual leave application form but it had been “hidden by the employer.” He then had to fill in another form and whilst he was filling in the form he was called away to attend to some work and a member of the office staff completed the form which provided that his last day of annual leave would be 14 August 2015 and that he would return to work on 17 August 2015.

[13] Mr Andruga said he signed the application form without reading it. He said he had applied for annual leave until 20 August 2015 and he was due to return to work on 24 August 2015.

[14] Mr Allen said that he did not see Mr Andruga complete the form but the form was filled out in Mr Andruga’s handwriting. It was his evidence that Mr Andruga gave the form to him and Mr Allen changed the form in front of Mr Andruga because it was not filled in correctly. Mr Andruga had put his last day of annual leave the same day as he returned to work. Mr Allen made the necessary correction.

[15] Mr Andruga returned to Australia on 20 August 2015 and he stayed home on 21 August 2015. He attended work on 24 August 2015 and provided Mr Jackson with a medical certificate for 13-19 July 2015. That medical certificate was dated 9 July 2015. Mr Jackson met with Mr Andruga and he was given his termination letter. Mr Jackson explained the two letters to him. Mr Andruga asked to see his leave application form and was asked to meet with Mr Allen. He questioned Mr Allen about the change to the form made by Mr Allen.

[16] Mr Andruga said that it was an unjust termination as he had told the Council he was sick and provided a medical certificate. While not articulated by Mr Andruga, I assume, in this case, that he genuinely believed he was not due back at work until 24 August 2015. It was his submission that his conduct did not warrant termination. He accepted if he had not followed the correct procedures he should have been given a warning.

[17] Ms Kennison gave evidence that Mr Andruga had been provided with the employee handbook on commencement of employment which makes it clear that three day absences without notification will be prima facie abandonment of employment. The Council also relies on a letter sent to Mr Andruga on 9 March 2015 outlining the requirement for medical certificates.

[18] I am not able to make any final assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[19] No relevant submissions were made on this criterion.

Conclusion

[20] Mr Andruga has provided a reasonable explanation for the delay in filing his application. The other criteria are neutral. I find that there are exceptional circumstances. Given the lack of prejudice to the employer I am prepared to exercise my discretion to extend time. Mr Andruga’s application will now be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

E. Andruga on his own behalf.

C. Loney for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link:

October 28.

 1   [2011] FWAFB 975.

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