Galle Shamil v 8Ball Pty Ltd
[2023] FWC 720
•28 MARCH 2023
| [2023] FWC 720 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Galle Shamil
v
8Ball Pty Ltd
(U2023/2031)
| COMMISSIONER MIRABELLA | MELBOURNE, 28 MARCH 2023 |
Application for an unfair dismissal remedy – unfair dismissal application filed out of time –circumstances not exceptional – application dismissed.
This decision concerns an application by Mr Galle Shamil (Applicant) for an extension of time to make a claim for unfair dismissal outside of the 21-day period required by s.394(2) of the Fair Work Act 2009 (Act).
On 10 March 2023, the Applicant made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy. The Applicant alleges he was unfairly dismissed by 8Ball Pty Ltd (the Respondent) on 30 January 2023.
In order for the application to proceed, the Applicant requires the Commission to grant a further period of time within which to bring his application.
This published decision reflects the decision I gave ex tempore on 28 March 2023 with corrections for grammatical, syntactical and any other insignificant errors.
This decision concerns whether I should exercise my discretion to allow the Applicant a further period of lodgement of his application.
After taking into account the views of the Applicant regarding whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter.[1]
At the determinative conference on 28 March 2023, the Applicant was self-represented. The Respondent did not attend and has not filed any materials in this matter.
The Applicant gave evidence on his own behalf.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 30 January 2023.
To have filed his application within the 21-day period, the Applicant had to have done so before midnight on 21 February 2023.
The Applicant’s application was filed 18 days late. The question is whether an extension of time to file the application should be granted. The Applicant asks the Commission to grant this extension of time.
Extension of time
Additional time can be allowed under s.394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[2]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· The reason for the delay,
· Whether the person first became aware of the dismissal after it had taken effect,
· Any action taken by the person to dispute the dismissal,
· Prejudice to the employer (including prejudice caused by the delay),
· The merits of the application, and
· Fairness as between the person and other persons in a similar position.
Relevant factors
Reason for the delay: The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an “acceptable” or “reasonable” explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour; however, all of the circumstances must be considered.[3]
The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[4]
In his submissions and Form F2 application, the Applicant said that the reason for his delay in lodging the application was that Mr Chris Gaunt, Director of the Respondent, and Mr Tim (surname unknown), who was engaged by the Respondent to be their bookkeeper following the Applicant’s dismissal, “kept stringing [him] along” regarding his final week’s pay and his entitlements from 29 January 2023 until 11 March 2023.
At the determinative conference, the Applicant’s evidence was that he told Mr Gaunt words to the effect “you need to process my final termination pay”. The Applicant says he did not specify the details of the payment but that he was referring to payment for:
· A final week’s pay
· Outstanding annual leave entitlement
· Two weeks’ pay in lieu of notice
· Four weeks’ pay for termination
The Applicant says he was notified of his dismissal on 27 January 2023 and that Mr Gaunt stopped answering the Applicant’s calls about a week after his dismissal. The Applicant says he then started texting Mr Gaunt. A copy of these text messages was provided as evidence by the Applicant. The Applicant says that following the exchange of these text messages, Mr Tim contacted the Applicant regarding his final pay but that he too “kept stringing [him] along”. The Applicant says he then received a threatening email from Mr Gaunt on 11 March 2023 in which Mr Gaunt alleged that the Applicant was not engaged as an employee and had been making unlawful payments to himself in the form of gross wages and into his own superannuation fund.
I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The Applicant says that the reasons for the delay were that he was waiting to be paid out wages for his final week of work and other entitlements, and that his employer was “stringing [him] along”.
Holding out for payments, including of alleged entitlements, would not have prevented the Applicant from lodging an application for an unfair dismissal remedy. The matter of outstanding entitlements as alleged is separate to this application, ought to have and could have been pursued elsewhere and could have been claimed concurrently with this application.
I am not satisfied that the Applicant provided an acceptable or reasonable explanation for the delay and that is a matter that weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: The Applicant was notified of the dismissal three days before it took effect and, therefore, had the full period of 21 days to lodge the unfair dismissal application. This factor does not weigh in favour of a grant of additional time to make the application.
Any action taken by the person to dispute the dismissal: The Applicant did not provide any written submissions regarding actions taken to dispute the dismissal and said at the determinative conference that he told the Respondent the dismissal had put him in a difficult position and that he wanted to continue working for the Respondent but did not otherwise do anything to dispute the dismissal. I do not consider the steps taken by the Applicant to constitute “action to dispute the dismissal”.
Prejudice to the employer: Neither the Applicant nor the Respondent made any submissions about this consideration, and I have treated it as a neutral consideration.
Merits of the application: Having examined these materials, it is evident to me that the merits of the application would need to be tested if an extension of time were granted and the matter were to proceed. Although the Respondent has not provided any submissions in this matter, the Respondent has written to the Applicant denying an employment relationship with him and instead alleging that the Applicant was a contractor.
It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent in correspondence with the Applicant raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position: This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I, therefore, consider this to be a neutral consideration.
Conclusion and disposition
The Commission can only grant an extension of time if it is satisfied that there are exceptional circumstances. None of the factors I need to consider weigh in favour of granting an additional period of time and I am not satisfied that there are exceptional circumstances in this case. As there are no exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
An order to this effect will be issued with this decision.
COMMISSIONER
[1] Fair Work Act 2009 (Cth), s.399.
[2] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349, [29]-[31].
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