Foki Tokomaata v Owen Pacific Workforce Pty Ltd
[2023] FWC 2434
•20 SEPTEMBER 2023
| [2023] FWC 2434 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Foki Tokomaata
v
Owen Pacific Workforce Pty Ltd
(U2023/2460)
| COMMISSIONER SCHNEIDER | PERTH, 20 SEPTEMBER 2023 |
Application for an unfair dismissal remedy
On 30 March 2023, Foki Tokomaata (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Owen Pacific Workforce Pty Ltd (the Respondent).
The Respondent objects to the application on the ground that the Applicant was not dismissed or, in the alternative, that the application has been made out of time.
Before considering the merits of the application, the Commission must be satisfied that the Applicant has been dismissed and that the application was not made out of time.
This decision contemplates both of the Respondent’s objections.
In the usual circumstances, the Commission would not consider an objection that an applicant has not been dismissed until after considering whether the application was lodged within time. However, to do so, it is necessary to ascertain the date that dismissal took effect. The matter currently before the Commission contains significant contention regarding the date the Applicant’s employment ceased. Therefore, I have discussed the Respondent’s not dismissed objection in so far as it is relevant to the matters to be determined.
In this matter, the Respondent asserts that no dismissal has taken place as the Applicant was employed under a contract for a specified duration. I have concluded that this objection is weak, for reasons explained below.
The remainder of the decision addresses the relevant considerations in section 394(3) of the Act in the context of the current application.
To provide context to the matter at hand, as there are several references made to individuals and organizations related to the Applicant’s employment who are not the Respondent, it is helpful to note the following facts:
· The Applicant hails from Tonga.
· The Applicant was employed by the Respondent under the Australian Government’s Seasonal Worker Program.
· The Applicant completed various manual tasks on farms in rural Australia.
· The farms on which the Applicant worked and accommodation in which she lived, although clearly organized as a result of her employment, were controlled by third parties and not directly by the Respondent.
· There are several organizations that, in some capacity, have involvement with, or offer services related to, the employment of migrant workers in Australia that have had some form of connection to this matter.
Legislation
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, the matter would proceed to consideration of the merits.
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Initial matters
Under section 396 of the Act, the Commission is obliged to determine the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Has the Applicant been dismissed?
A threshold issue to be determined is whether the Applicant has been dismissed from their employment.
Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“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 the FWC allows under subsection (3)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the 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.”
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] 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.[4]
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.[5] An applicant 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 the applicant has not provided any reason for any part of the delay.[6]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[7]
When did the Applicant’s employment cease?
The parties are in dispute as to when the Applicant ceased her employment.
It is accepted by both parties that the Applicant was initially employed under a contract spanning from around October 2021 to around June 2022. Following this, the Applicant continued to work for the Respondent.
The Respondent asserts that the Applicant was issued a second contract of employment for a specified season and the Applicant rejects this assertion.
Although it is clear the Applicant agrees there was some kind of employment relationship from around July 2022 until around December 2022, the Applicant submits she was never issued with the second contract that specified a duration of employment.
The Applicant states that her dismissal took effect on 3 January 2023.
The Applicant contends that she was offered and accepted a further contract of employment in late November 2022.
The Applicant submits that, following interactions with the Respondent and her accommodation facilitator, on 3 January 2023, she was made aware that her employment was not continuing as she had expected.
The Respondent states that the Applicant’s employment came to an end on 20 December 2022, when the season of work came to an end as was consistent with her contract of employment.
The Respondent denies that the Applicant was ever offered a contract of employment following the one which ended in December 2022.
Employment that ceases in accordance with a contract for a specified period or, as the Respondent asserts here, a specified season can fall outside of the jurisdiction for an Unfair Dismissal remedy.
Having reviewed the contractual documents provided by the Respondent, I feel it necessary to make the following findings.
There is no evidence that the Respondent has provided to the Commission that satisfies the Commission of the submission that the Applicant was ever issued a second contract of employment which had an end date of 20 December 2022, or some other unambiguous term regarding employment only for a specified season.
The copy of the alleged second contract of employment provided to the Commission by the Respondent does not include the Applicant’s name or any other basic details generally required, or that would be expected, in an employment contract or offer.
There is no evidence that the Applicant received this contract, had an opportunity to review the contract, signed the contract, or returned the contract to the Respondent.
On assessment of the materials before the Commission, I prefer the Applicant’s evidence and submissions in relation to the existence of this second contract. Specifically, although it is clear the Applicant continued working for the Respondent after her initial contract ceased, I am not satisfied she was ever issued with a second contract that specified any type of end date.
The second contract provided by the Respondent includes information that is inconsistent with a finding that it is a contract for a specified season or duration. The contract notes that the employee is employed on a casual basis.
Notably, the contract includes a clause that gives either party a right to terminate the contract on notice. On assessment of this document, even if I were inclined to believe the Applicant had received such document, I am not satisfied that it suggests the Applicant was employed for a specified season and therefore not dismissed within the meaning of the Act.
As has been noted by the Commission in earlier decisions, a contract of employment that provides a broad or unconditional right of termination during its term lends to a finding that the period of employment is indeterminate and not for a specific period of time.[8]
It appears that the Respondent may benefit from a review of its standard contractual clauses issued to seasonal workers if it intends on relying on such contracts to exclude these relationships from the Unfair Dismissal jurisdiction.
I am therefore satisfied that the Respondent’s initial objection, that the Applicant was not dismissed, carries little merit.
Turning again to the contentious date of termination, it is clear that, at the latest, the Applicant was aware her employment had ceased by 3 January 2023. And, at the earliest, the termination took effect on 20 December 2022 as supported by the Respondent.
The Applicant submits that, on 19 December 2022, she was advised, alongside three other employees, that she would continue to work on a farm in WA until the farm closed, or until further notice. Two other employees present were told they were being transferred to Tasmania. It was made clear to the Applicant that the opportunity in Tasmania did not extend to her.
The Applicant submits that, on 31 December 2022, she was advised by the Respondent that the owner of the WA farm did not want her to come back to work. The Applicant then submits that, due to an issue regarding her flight home, she was directed that she would have to continue work until 10 January 2023.
The Applicant then attended work on 3 January 2023 and, after being contacted by the Respondent, it became apparent that she would not be continuing work as she expected.
On assessment of the Applicant’s materials, it appears that there was significant miscommunication or misunderstanding between herself, the Respondent, the owner of the farm, the owner of the accommodation, and others that lead to this seemingly messy end of employment.
The Respondent largely relies on the seasonal contracts allegedly issued to the Applicant as basis for the 20 December 2022 end of employment date.
The Respondent asserts that the Applicant was made aware, though the nature of the seasonal work, the contracts, and discussion with the Respondent’s staff that her employment would end on or around 20 December 2022.
However, the Respondent has not been able to produce any evidence that supports the assertion that this was ever communicated to the Applicant, or that the Applicant was specifically advised in or around 20 December 2022 her employment was ceasing.
Although an end date may have been assumed, due to the generally seasonal nature of the Applicant’s work, it is clear that the Respondent and others involved in the Applicant’s employment never reassured such an assumption.
On the contrary, it appears that those in connection to the Applicant’s work in Australia only contributed to further confusion regarding the end of her employment.
The Respondent provided a copy of the Applicant’s payslips, with the final payslip being issued to the Applicant on 3 January 2023.
From the information provided by both parties, it would appear that the Applicant was likely aware her employment would be coming to an end around late December 2022.
However, it is clear that the Respondent’s instructions to the Applicant lead to her continuing to work until, at the earliest, 31 December 2022. After this time, I accept that the Applicant was likely confused by the differing statements regarding her ongoing work and, finally, on 3 January 2023, it became abundantly clear to her that the employment had ceased.
The alleged existence of a third contract does not detract from the obvious conclusion that the Applicant was aware her employment had ceased by, at the latest, 3 January 2023.
Having regard to the matters I have referred to above, I find that the Applicant’s employment likely ceased on 31 December 2022, after being notified of this by the Respondent.
However, I am satisfied that the surrounding circumstances added significant confusion and the Applicant’s termination was not clearly communicated to her until 3 January 2023.
I note that from the material provided by the parties, the Applicant was extremely confused regarding the end of her employment and alleged continuation of employment under a third contract.
The Applicant continued to seek information about the reasons for her employment ending following 3 January 2023.
It is a matter of record that the application was made on 30 March 2023.
As I found above, the dismissal took effect on 3 January 2023. The final day of the 21-day period was therefore 24 January 2023 and ended at midnight on that day. The Application is therefore 65 days late.
Whilst I do not find that the Applicant believed she was still employed after 3 January 2023, if I have erred regarding the termination date of her employment, noting the extreme disorderliness of the circumstances, it is clear that, in the alternative, correspondence sent by the Respondent to the Applicant on 19 January 2023 made it extremely clear the employment relationship had ceased.
Even in the event the termination did not occur until late January 2023, the application would still have been filed out of time.
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 24 January 2023. The delay is the period commencing immediately after that time until 30 March 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]
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.[10]
An applicant 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 the applicant has not provided any reason for any part of the delay.[11]
The Applicant submits that the delay was for the following reasons:
· Lack of clarity regarding the end of her employment.
· The alleged existence of a further contract of employment.
· Attempts to resolve the dispute with the Respondent directly.
· Attempts to resolve the dispute with the Department of Employment and Workplace Relations (the Department).
· Delays in receiving timely responses from the Department and the Respondent during her attempts to resolve the dispute.
Following her dismissal, the Applicant and her family members made several attempts to dispute her dismissal and obtain further employment.
The Applicant received correspondence from the Respondent, on 19 January 2023, making clear that her employment had ceased, and that the relationship had come to its end.
The Applicant made a further attempt to contact the Respondent, on 26 January 2023, which was not answered. From that point onwards, the Applicant corresponded with other organizations in attempt to secure another job.
Having regard to the above, I find that some of the reasons for the delay are reasonable and weigh in favor of a finding of exceptional circumstances.
It is clear that the circumstances surrounding the Applicant’s termination were disorganized and that her status as a migrant worker with minimal English language skills likely exacerbated the circumstances.
The Applicant and her family members made attempts to clarify the situation surrounding the end of her employment with the Respondent in the period immediately following her dismissal.
However, I note that it soon became apparent that the Respondent would not be altering its decision or offering the Applicant further employment.
By late January 2023, the Applicant’s correspondence was focused on exploring opportunities with other employers. It appears that the Applicant’s reasons for delay during this subsequent period are far weaker than for the period of January 2023.
The Applicant has not provided any explanation or evidence as to why the application was filed over two months after the last correspondence between the Applicant and the Respondent.
Did the Applicant first become aware of the dismissal after it had taken effect?
As I have outlined above, there was a dispute between the parties about the date on which the Applicant was dismissed and the notification of the dismissal.
As I have found above, the Applicant was aware of her dismissal by 3 January 2023, which may have indeed been later than the actual date the Respondent intended to cease her employment.
Regardless, I have concluded that the Applicant’s dismissal took effect on 3 January 2023, and she was aware as of that date that her employment was no longer.
What action was taken by the Applicant to dispute the dismissal?
As outlined above, following her dismissal, the Applicant raised concerns about her employment ceasing with the Respondent and other organizations.
On several occasions following the dismissal, the Applicant and her family members made contact with the Respondent and associated organizations in attempt to dispute the dismissal and potentially redeploy the Applicant.
The Applicant contacted the Respondent, shortly following the dismissal, providing a grievance letter to which the Respondent provided a response to on 19 January 2023. The answer made clear that the Applicant had exhausted her employment opportunities at the Respondent.
The Applicant had also been in contact with Pacific Australia Labour Mobility
(PALM), from early January 2023, about her employment ceasing with the Respondent. PALM seemingly facilitated the grievance process between the parties and raised other options for the Applicant’s consideration.
The Applicant, in their submissions, confirmed that they did not contact the Department until 11 April 2023, after this application was lodged with the Commission.
Despite the above, suggesting that the Applicant was aware her informal dispute process was proving fruitless in January 2023, the Respondent highlights that the Applicant still opted to wait until late March 2023 to lodge her application.
It is unquestionable that the Applicant made attempts to dispute her dismissal.
The Applicant sought further information about her employment ceasing with the Respondent in January 2023. She did so directly with the Respondent and reached out to other organizations to assist her efforts.
The Applicant received a response from the Respondent, on 19 January 2023, making clear that she had exhausted her options of directly resolving the dispute. The Applicant was clearly not satisfied with this response and sent further communication to the Respondent on 26 January 2023.
It appears that, from that date forward, the Respondent ceased to engage with the Applicant. The Applicant from thereon corresponded with PALM and other organizations in an attempt to secure another employment opportunity.
As the Respondent noted, the Applicant’s correspondence with the Department was only made after lodging this application and is therefore neutral in my consideration.
What is the prejudice to the employer (including prejudice caused by the delay)?
I am satisfied that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. 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)”[12] and the same applies to section 394(3)(e) of the Act.
What is clear, however, is that the circumstances surrounding the Applicant’s end of employment are extremely chaotic.
The parties disagree over several crucial details pertaining to the end of the Applicant’s employment and the reasons for the predicament that ensued.
It is clear that, in the circumstances that the matter was to proceed, the Commission would have to undertake careful investigation of the evidence presented by the parties to ascertain a clearer picture regarding the Applicant’s termination.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an accurate assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.
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:
(a) the reason for the delay, being the Applicant contacting several different groups in relation to her employment ceasing with the Respondent;
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the actions taken by the Applicant to dispute the dismissal, being further information as to why the Applicant’s employment had ceased;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[13] 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.[14]
The Applicant was aware, from early January 2023, her employment with the Respondent had ceased. The Respondent maintains at all times that the Applicant was employed on a seasonal term arrangement and that arrangement had come to an end.
It is evident from the communication the Applicant sent to PALM, on 9 January 2023, that she had recognized her employment with the Respondent had formally ceased.
In this email, the Applicant’s extended family, who were assisting her in this process, stated their intention of seeking the intervention of the Commission in relation to this matter.
The Respondent received an email from PALM in relation to the Applicant’s employment and provided their position in relation to her employment having ceased.
The Applicant was in a position by, at the latest, 19 January 2023 to make an application to the Commission in relation to her unfair dismissal claim.
The Applicant sent a further email to the Respondent on 26 January 2023. Between 26 January 2023 and 30 March 2023, the Applicant has not demonstrated or explained the reason for her delay in filing this application.
I note that English is not the Applicant’s native language and that the Applicant required assistance in filing this application. I have factored this into my consideration of the lateness of the application.
Having regard to all of the matters in section 394(3) of the Act, I am satisfied that there are exceptional circumstances in this matter. However, I am not satisfied that these exceptional circumstances excuse the lateness of the application.
The application, in accordance with the 3 January 2023 termination date and the 21-day timeframe, should have been lodged by 24 January 2023.
I am satisfied that the Applicant was well aware of her predicament by, at the latest, 19 January 2023 when any confusion regarding her termination should have been eliminated by the Respondent’s correspondence.
Further, in consideration of the specific circumstances of the Applicant, I would be inclined to conclude that a further period, of around two-weeks, would be reasonable for the Applicant to remain unready to lodge an application. This would be to accommodate her further attempts to rectify the issue with the Respondent directly, await a response (which never came), and account for delay caused by her personal circumstances.
Accordingly, I would find it excusable that the period for lodgment could be extended to, at the latest, 23 February 2023, which would still result in the application being filed over a month late.
Such an extension provides ample opportunity for the Applicant to adjust to the change in her employment status, attempt to resolve the issues in a foreign environment, and have ample time to prepare an application.
It is clear that the Applicant and her family members were able to attempt to explore other employment opportunities prior to this date.
It appears that the Applicant and her family members, instead of promptly lodging an application, prioritized their efforts in securing other employment. Although this is understandable, I am not inclined to apply discretion to extend the period for lodgment past late February 2023.
I am not satisfied that the exceptional circumstances in this matter warrant exercising my discretion to grant an extension for a period in which the Applicant actively attempted to secure other employment and did not make any action towards furthering the lodgment of their application.
Although I am sympathetic to the Applicant’s personal circumstances as a migrant worker in Australia, I do not consider that it is appropriate to grant an extension to excuse the entire period of delay in these circumstances.
It is understandable that many individuals may opt to priorities securing a new role after termination. However, in most circumstances, it is not appropriate to delay the filing of an application until such a point in time that those efforts have become concerningly unsuccessful, or new employment is found.
Conclusion
Having elected to only exercise my discretion to grant a partial extension, the application is still not made within time.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect will be issued separately.[15]
COMMISSIONER
[1] [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] [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; [2015] FWCFB 1877.
[3] [2011] FWAFB 975, at [13].
[4] [2011] FWAFB 975, at [13].
[5] [2018] FWCFB 901, [39].
[6] [2018] FWCFB 901, [40].
[7] [2018] FWCFB 901, [17].
[8] [2008] AIRC 340.
[9] [2015] FWCFB 287, [12].
[10] [2018] FWCFB 901, [39].
[11] [2018] FWCFB 901, [40].
[12] [2011] FWAFB 975, [36].
[13] [2011] FWAFB 975, [13].
[14] [2011] FWAFB 975, [13].
[15] [PR766436].
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