Gilcimara Chagas v Expo Copy Document Centre T/A Expo Group

[2018] FWC 2533

[2018] FWC 2533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gilcimara Chagas
v
Expo Copy Document Centre T/A Expo Group
(U2018/2354)

COMMISSIONER PLATT ADELAIDE, 7 MAY 2018

Application for relief from unfair dismissal – extension of time – application dismissed.

Summary

[1] Ms Gilcimara Chagas has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Expo Copy Document Centre T/A Expo Group (Expo) which her form F2 Unfair Dismissal Application advised took effect on 14 February 2018.

[2] Ms Chagas filed her unfair dismissal application with the Commission on 6 March 2018.

[3] On 22 March 2018 Expo lodged a form F3 Employer Response which indicated that the employment ceased on 13 October 2017 due to the cessation of Ms Chagas’ Section 457 Visa on 9 October 2017.

[4] On 13 April 2018 Expo lodged a Form F4 Objection application for unfair dismissal and contended that the application was made out of time and that Ms Chagas had not been dismissed.

[5] On 17 April 2018, my Associate corresponded with Ms Chagas and Expo and advised that the extension of time issue would be considered at a telephone conference on 4 May 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Chagas was directed to provide a statement concerning the extension of time and any documents to be relied upon by 24 April 2018. Expo was invited to file any material in reply by 27 April 2018.

Submissions

[6] Ms Chagas provided a written submission on 27 April 2018 which is relevantly summarised as follows:

•  Ms Chagas commenced employment in August 2012 as a full time employee.

•  She was provided with a written contract of employment dated 16 August 2013 which was accepted.

•  On 11 May 2016 she commenced a period of parental leave, it having been approved in April 2016.

•  In October 2016 she sought to return to work from parental leave but her request was rejected on the basis that the company was experiencing financial hardship. Ms Chagas provided copies of emails seeking a return to work dated 5 and 15 May 2017.

•  On 26 June 2017 Expo permitted her to return to work.

•  Upon her return Ms Chagas was provided with varying weekly hours depending on the workload.

•  In October 2017 Ms Chagas sought, and was granted, a period of leave without pay for her to deal with a Visa application which was expected to be 1 to 2 weeks. Ms Chagas sought to return to work after 3 weeks.

•  Ms Chagas was taking antidepressants and was depressed from November 2016.

•  Ms Chagas provided images of text messages exchanged with Ms Julie Truong, Administration Manager, between 16 October and 9 January 2018 which discusses communications concerning the Visa. On 7 November 2017 Ms Chagas emailed Expo with a copy of her bridging Visa which she advised provided full permission to work.

•  On 7 November 2017 Mr Eacott, Managing Director, replied congratulating Ms Chagas.

•  On 15 November 2017 Ms Chagas had a conversation with Mr Eacott who advised her to come back to work in February 2018 as the business was quiet.

•  On 9 February 2018 Ms Chagas emailed Mr Eacott seeking a date to return to work, or alternatively that she be provided with a termination letter if she was wrong.

•  Ms Chagas rejects Expo’s contention that she resigned.

•  Ms Chagas contends she was never advised of her dismissal.

[7] Expo provided a written submission on 1 May 2018 which is relevantly summarised as follows:

•  Expo understands that all employment contracts are conditional upon the employee having a legal right to work in Australia.

•  Ms Chagas’ working Visa expired on 9 October 2017 and at that time Ms Chagas lost the capacity to be employed.

•  The bridging Visa dated 13 October 2017 did not permit Ms Chagas to be employed.

•  The employment ceased on 9 October or alternatively 13 October 2017 when Ms Chagas abandoned work due to the cessation of Ms Chagas’ working visa.

[8] A hearing was conducted by way of telephone conference on 4 May 2018. Ms Chagas was self-represented and Mr Ron Eacott represented Expo.

[9] Ms Chagas reiterated her written submissions and responded to a number of questions.

[10] Ms Chagas conceded that she became aware that she would not be returning to work after a discussion with Expo on 16 November 2017. Ms Chagas accepted that she was dismissed on this date. When asked to explain why she did not lodge her claim earlier, Ms Chagas said that after the 16 November 2017 discussion she spoke to a friend that was studying Human Resources and on 8 January 2018 spoke to a lawyer from Unfair Dismissals Direct. Ms Chagas said that the advice she received from Unfair Dismissals Direct was that she needed a letter of termination. Mr Chagas unsuccessfully engaged with Ms Truong the next day via text message to try and obtain a termination letter. This discussion is included in the documents submitted by Ms Chagas. Ms Chagas does not appear to have taken any further action to either follow up with Unfair Dismissals Direct or Expo. She received the Centrelink Separation Certificate from Expo on or about 14 February 2018 and lodged her application on 6 March 2018. Ms Chagas lodged her application on 6 March.

[11] Mr Eacott on behalf of Expo reiterated its submissions and further contended that there were no exceptional circumstances.

Applicable Law

[12] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal 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).

(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.”

[13] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

Consideration

[14] Ms Chagas agreed that she became aware of the dismissal on 16 November 2017 having understood that she would not be offered any further work.

[15] Expo contends that the employment ceased on 9 October 2017 when Ms Chagas lost the right to work in Australia. There was no documentation provided to me that establishes that position. The contract of employment does not contain an express term requiring a right to work in Australia. I do not accept that the contract of employment automatically ceased on 9 October 2017.

[16] Expo agrees that it never provided a written advice that the employment had ceased prior to the Centrelink Separation Certificate, but that it asserts Ms Chagas was aware that she would not be further engaged.

[17] I find that the dismissal took effect on 16 November 2017 and that the unfair dismissal application was made 88 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[18] Ms Chagas took no action to dispute the dismissal until she spoke to a lawyer from Unfair Dismissals Direct on 8 January 2018, some 7 weeks after the dismissal. No statement from Unfair Dismissal Direct was provided. I am unaware of Ms Chagas instructed Unfair Dismissal Direct to represent her or entered into any agreement to do same. Ms Chagas contends that Unfair Dismissal Direct advised her she needed a written termination letter in order to pursue her claim. If that advice was given it was patently wrong.

[19] Ms Chagas engaged with Ms Truong to obtain written confirmation of her dismissal on 9 January 2018 but was unsuccessful. Ms Chagas took no further action to contest the dismissal until this claim was lodged on 6 March 2018. It appears that the trigger may have been the receipt of the Separation Certificate sent by Expo on 14 February 2018.

[20] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[21] If the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances. 2

[22] Ms Chagas has not explained the delay which occurred until 8 January 2018. By that stage, Ms Chagas was one month out of time.

[23] I accept that Ms Chagas was of the view that a written notice was required to contest her claim, and that view is supported by her communications with Expo on 9 January 2018. If Unfair Dismissals Direct was her representative, this advice could be characterised as representative error, however, Ms Chagas has not adequately explained why having been denied the termination certificate on 9 January 2018 she did not follow up with her representative or make any further request of Expo. Having received the written confirmation in the form of a Centrelink Separation Certificate on or about 14 February, Ms Chagas then waited almost 2 weeks before lodging her claim.

[24] There was no medical evidence to support the depression which Ms Chagas reported occurring from November 2016, nor any information as to how it attributed to the delay and this proposition was not pressed in her verbal submissions.

[25] I accept that Ms Chagas was unfamiliar with the unfair dismissal jurisdiction but ignorance of the time limit is not of its own an exceptional circumstance.

Whether the person first became aware of the dismissal after it had taken effect

[26] Ms Chagas accepted that she became aware of the dismissal taking effect on 16 November 2017.

Any action taken by the person to dispute the dismissal

[27] No action was taken to contest the dismissal until Ms Chagas contacted Unfair Dismissal Direct on 8 January 2018. Ms Chagas does not appear to have instructed Unfair Dismissals Direct to represent her or lodge a claim on her behalf.

Prejudice to the employer (including prejudice caused by the delay)

[28] There is no submission that the granting of an extension of time represents prejudice to Expo.

The merits of the application

[29] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I regard the merits as a neutral factor.

Fairness as between the person and other persons in a similar position

[30] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[31] For the reasons I have set out above, I am not satisfied that Ms Chagas’ circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order³ reflecting this decision will be issued.

[32] If the information concerning her working arrangements provided by Ms Chagas is correct, she may have a valid claim for underpayment of her entitlements, this decision is not a barrier to such a claim.

COMMISSIONER

Appearances:

Ms G Chagas on behalf of the Applicant.

Mr R Eacott on behalf of the Respondent.

Hearing details:

2018

Adelaide:

May 4.

Printed by authority of the Commonwealth Government Printer

<PR606849>

1 [2011] FWAFB 975.

 2   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.

3 PR606850.