Frank Khan v A-Z Panel and Paint
[2022] FWC 837
| [2022] FWC 837 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Frank Khan
v
A-Z Panel And Paint
(C2022/731)
| DEPUTY PRESIDENT LAKE | BRISBANE, 11 APRIL 2022 |
Application to deal with contravention involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.
Frank Khan (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to the termination of his employment by A-Z Panel and Paint (the Respondent).
The Applicant’s employment commenced with the Respondent on 18 November 2021 and was terminated on 15 December 2021, effective immediately. The Applicant lodged the present application on 25 January 2022. It was conceded that this was 41 days after the date of dismissal, being 20 days outside the statutory time limit prescribed by s.366(1) of the Act. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.
The Respondent opposes the granting of an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension. A hearing was held before me via Microsoft Teams on 25 March 2022.
Should a further period be granted?
Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account:
(a)the reason for the delay;
(b)any action taken by the person to dispute the dismissal;
(c)prejudice to the employer (including prejudice caused by the delay);
(d)the merits of the application; and
(e)fairness as between the person and other persons in a like position.
The test of ‘exceptional circumstances’ establishes a higher barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:
“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.”[2]
The Applicant submits that exceptional circumstances exist and that a further period should be granted based on the following reasons:
· The Applicant was notified a week prior to Christmas that he was being dismissed. The Applicant explained that during this time, he asked why Vernon said that “2 white fellows didn’t want to work with me” and the Applicant felt upset as the workplace was government supported, and they received a government pay out for employing an Aboriginal person. The Applicant felt this was racist and was offended.
· As the dismissal was close to Christmas, the services which were provided to the Applicant were shut preventing the Applicant from filing the application on time.
· The Applicant experienced a death in the family which required him to travel to see family from 23 or 24 December 2021 to sometime between 10 and 15 January 2022. The Applicant advised that whilst in the country, there was no mobile reception which prevented him from looking up any information or to contact anyone to make the application.
· The Coronavirus added to the delay as he wanted to abide by the Government mandates to remain isolated.
· The Applicant apologises for the delay stating that he was suffering a lot of sadness and stress due to all the events that occurred around that time.
The Respondent submits that the application should be dismissed due to the Applicant’s lack of punctuality and the following reasons:
· The Applicant failed to submit the application within 21 days of dismissal.
· The Applicant failed to submit material in accordance with the directions.
· The Applicant was given an extension to submit the material which he failed to meet.
· The Applicant was terminated within the probation period due to arriving late to the workplace, and leaving the workplace early, in addition to being disrespectful to management, asking staff for money and complaining about work tasks assigned to him. The Respondent explains that the Applicant signed a staff induction form which states he is on a 3-month trial and if it does not work out within the first 3 months, he could be dismissed.
· The Respondent refutes the Applicant’s assertion that his dismissal was racist. They state that the Respondent does not see colour and are a very multiracial team. The Respondent was initially owned by a man of Austrian descent in the 1970s. He later gave Mr George Passmore (Aboriginal Wongatha man) the opportunity to purchase the business. It has been successfully family owned and family run for decades until his retirement, where the Respondent was taken over by Ms Lesley Passmore (Aboriginal Wongatha woman).
· The Respondent has never been government funded nor had any incentives from the government to employ Aboriginal people.
· The Respondent is registered with Supply Nation to be recognised as an Aboriginal owned business.
Consideration
I turn now to each of the factors set out in s.366(2) of the Act.
Reason for delay
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”[5]
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
In the Applicant’s submissions, both written and at hearing, the Applicant advises he was shocked by his dismissal and was quite affected by it. In addition to this, there had been a death in his family which required him to travel to another town to visit relatives and had also travelled into the country where there was no mobile reception. The Applicant states that this prevented him from making any enquiries or to make an application. He further states that it was the Christmas period, and he had yet decided upon making an application.
Whilst I sympathise with the Applicant’s situation, I do not find these reasons to be exceptional, either separately or together. The Applicant had travelled potentially out of range from 23 or 24 December 2021 to sometime between 10 and 15 January 2022. He did not file the application for another ten to fifteen days upon his return. The travel out of range was for potentially a week or so and the Commission does not close over the Christmas period outside the public holidays and one other day. There was plenty of opportunity for the Applicant to make a toll-free call and ask how he could make an application. The staff at the registry office would have been able to assist the Applicant with an application either by sending a copy to a friend’s email address if he could not receive an email, or alternatively make the application over the phone. I have sympathy for the Applicant as the death of a relative just prior to his termination on 15 December would have compounded the stressful situation. However, the Applicant had the opportunity to make an application prior to leaving Kalgoloorlie and also for the days that he would have had access to a telephone or the internet. Ignorance over the 21-day period is not an acceptable reason for delay and although he was shocked from his termination, he had only been employed for 4 weeks with the Respondent, and being terminated from employment frequently, and not uncommonly results in feelings of loss and shock. The Applicant states that he was out of town for a part of the 21-day period. Yet, he had opportunities and means to make an application through a variety of methods during this period. I find nothing exceptional in his circumstances and I weigh this factor against granting an extension.
Action taken to dispute the dismissal
There was no specific material on this factor submitted by the Applicant or Respondent. I do note that there was a phone call between the Respondent and the Applicant following the termination date however I did not understand that the Applicant disputed the termination. This factor is neutral.
Prejudice to the employer
No material was forthcoming on this factor and I weigh it as neutral.
Merits of the application
In Kornicki v Telstra Network Technology Group, the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[7]
I note that the Respondent advises that the Applicant was undergoing his probation period and during this time, he attended to work late, had conflict with other workers, and more. As such, the Respondent found that the Applicant was unable to perform his duties to the standard required and dismissed him within his probationary period.
Without a proper hearing and assessment of all of the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the person and others in a like position
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[8]
The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
I do not find that the reasons for the delay in the application are exceptional circumstances and so I do not grant an extension
Having regard to all the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter. I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901, [39].
[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]–[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.
[7] Print P3168, 22 July 1997.
[8] Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].
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