Idris Muhaemin v Adelaide Casino

[2020] FWC 5135

[2020] FWC 5135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Idris Muhaemin
v
Adelaide Casino
(U2020/11948)

COMMISSIONER HAMPTON ADELAIDE, 1 OCTOBER 2020

Application for an unfair dismissal remedy – extension of time required – not satisfied that exceptional circumstances exist – extension not granted – unfair dismissal application dismissed – observations made about alternative cause of action to deal with apparent major concern.

[1] This decision concerns an application by Mr Idris Muhaemin (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment with the Adelaide Casino 1 (Respondent) was terminated with effect from 6 August 2020. The unfair dismissal application was lodged on 3 September 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 27 August 2020. 2 The application was therefore filed on the 7^th day after the 21 day limit. The Applicant requests the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] The request for an extension of time has been heard by the Commission by way of a telephone hearing. The Applicant, whose first language is Indonesian, can competently conduct social communication in English, his second language; however, he apparently requires some assistance to deal with technical conversation. He was assisted in the discussions leading up to the dismissal, in making this application and during the hearing of this matter by Ms Marianne Cowley. Ms Cowley is the Applicant’s former wife, who is an intelligent and articulate spokesperson, albeit without any experience in matters concerning unfair dismissal applications.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly stated, 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. 3 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.4

[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[7] Section 394(3) requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. 5 I now consider these matters in the context of the Application. In so doing, I have had regard to the originating application, the formal response provided by the Respondent, the Applicant’s written submission provided in the lead up to the hearing, and the oral submissions made by both parties. Despite the existence of some factual disputes concerning the explanation relied upon by the Applicant, neither party chose to provide sworn evidence about those matters during the hearing.6 As a result, I have treated the submissions on face value whilst noting that it is the Applicant that must satisfy the Commission that there are exceptional circumstances and that the period for lodgement should be extended

Reason for the delay

[9] 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 on their own merits. 7

[10] The Applicant principally relies upon the following propositions:

•  He was expecting a pay advice and statement of service following his dismissal which would confirm whether he had been paid all of his entitlements including Long Service Leave (LSL);

•  When he received his pay on 11 August 2020, he did not receive a pay advice and the amount provided by the Respondent was less than he expected. The Applicant presumed that this was his pay in lieu of notice and other payments, but not his LSL. He considered that his final payment and LSL would (or might) be provided as part of the next fortnightly pay run and he decided to wait given the “failure” of the Respondent’s Human Resources to provide the required pay advice;

•  When there was no further pay received on 25 August 2020, Ms Cowley attempted to engage with the Respondent to clarify the payments. The Respondent “unreasonably” sought confirmation about Ms Cowley’s capacity to speak on his behalf and when the payment information and statement of service was provided by the Respondent on 27 August 2020, the Applicant considered that he was not being paid his LSL due to having not completed a full 10 years of service, which he believes was also incorrect; and

•  The delay in lodging the application arose from these events.

[11] The Applicant also relies upon his personal circumstances, including that his first language is not English and a lack of knowledge of workplace laws including the time limit for an unfair dismissal application, the nature of the allegations against him, the stress caused by the dismissal, and his recent marriage separation.

[12] I accept that there are some elements of the explanation for the delay in filing the application supported by the circumstances. This includes that there was some delay in the provision of the pay details by the Respondent and that this meant that it was not clear until close to the 21 day period the basis of what had been paid. I have also taken the Applicant’s personal circumstances into account and the assistance provide by Ms Cowley leading to the application.

[13] I also accept that the Applicant was not aware of the initial time limit for lodging an application of this nature until steps were taken at the time of filing to make the application. However, this aspect is not remarkable and given the matters outlined below is not a basis for a finding of exceptional circumstances.

[14] It is clear that the Applicant, with Ms Cowley’s advice and assistance, was aware of “right” to make an unfair dismissal application following his dismissal but took no steps to explore the matter or how and when that was to be done. He also took no steps to follow up when the payment received on 11 August 2020 was not the amount he had expected, but unwisely, assumed that the next pay might provide answers without making any approach to the Respondent to check that assumption or seek clarification until much later.

[15] Further and in any event, the dispute about the LSL payment is only marginally connected to the unfair dismissal application 8 and the Applicant’s concerns about the justice of the dismissal itself were not substantially connected to the final payment. In addition, any assumptions made by or on behalf of the Applicant about what was required to lodge the unfair dismissal application were not tested or pursued until later after the 21 day period had passed.

[16] To the extent that Ms Cowley sought to take responsibility for any delay, it is a reasonable inference from the submissions in the absence of any evidence that the steps taken, or not taken as the case may be, were undertaken with the Applicant’s knowledge and concurrence. 9

[17] The Applicant’s circumstances did not prevent him from making or preparing the unfair dismissal application within time and the decision made by default to await the details of the payment before making any enquiry about contesting the dismissal, and the other factors relied upon by the Applicant, when considered as a whole and in context, are not an acceptable or reasonable explanation for the delay.

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

[18] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a factor weighing against a finding of exceptional circumstances.

Action taken to dispute the dismissal

[19] The Applicant submits that thathe was unaware of the need to make an application for unfair dismissal within 21 days and took action to follow up with the Respondent. through his support person, Ms Cowley when his expected final payment had not been received by 25 August 2020. It was as a result of this phone call and the subsequent receipt of a pay advice and statement of service that the Applicant realised that the payment made on 11 August was his final pay. The Applicant alleges that the pay advice and statement were withheld by the Respondent until after the 21 day time limit to file this application had passed. This contention is speculation, strongly denied by the Respondent, and there is no evidence against which a finding of that nature might be supported.

[20] On both accounts of the facts, the Applicant did not advise the Respondent at any time prior to the s.394 application being made that the dismissal was being disputed or even that the alleged outstanding LSL was being disputed. No other steps were taken beyond seeking the payment details.

[21] I do not consider these steps to constitute ‘action to dispute the dismissal’. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[22] The Respondent did not cite any particular prejudice associated with the delay in the application. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of an extension of time. However, to the extent that the absence of prejudice might support an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[23] The Act requires me to take into account the merits of the application in considering whether to extend time. The Respondent contends that the Applicant was dismissed for failing to adhere to its Appropriate Workplace Behaviour Policy, associated with alleged comments of an offensive nature made to a female colleague, having received previous warnings for inappropriate conduct. 10 The Applicant in his submissions rejects this allegation and provides a version of events that differs in some important respects from that of the former colleague who made the complaint regarding his conduct. It is not possible to make any firm or detailed assessment of the merits without hearing direct evidence from the relevant individuals involved. The Applicant has a prima facie case, to which the Respondent raises an apparent strong defence. I do not consider the merits of the present case to tell strongly for or against an extension of time, however it cannot be said that the application is completely without merit.

[24] I will return at the conclusion of this Decision to what appears to be a major factor motivating the application; namely the LSL dispute.

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

[25] 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

[26] Having regard to the matters I am required to take into account under s 394(3) of the Act, and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are 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 unfair dismissal application must itself be dismissed and an Order 11 to that end is being issued in conjunction with this Decision.

[27] I would observe however, that should the Applicant continue to dispute the LSL payment received upon termination, which appears to be significant in the decision to lodge these proceedings, he may have other avenues available such as a claim for underpayment of entitlements to a Court of competent jurisdiction. However, before considering that action, he should assess the leave records offered by the Respondent to confirm the extent of LSL taken by him before the dismissal.

COMMISSIONER

Appearances:

M Cowley with I Muhaemin, the Applicant.

F Rossi on behalf of SKYCITY Adelaide Pty Ltd, the Respondent.

Hearing details:

2020

September 28

By telephone.

Printed by authority of the Commonwealth Government Printer

<PR723046>

 1   The name of the Respondent was cited in the Form F3 Employer Response as SKYCITY Adelaide Pty Ltd. Adelaide Casino appears to be trading name but given the conclusion of this Decision I have not considered formally amending the application.

 2   Not including the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1) as in force on 25 June 2009.

 3   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 4   Ibid.

 5   Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [38].

 6   The existence of some factual disputes, the opportunity to provide evidence, and the weight that may be given to evidence was explained to both parties during the hearing.

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 8   The fact that the dismissal apparently meant that the Applicant did not complete a further year of continuous service and missed out on the additional 1.3 weeks of LSL may be relevant to the fairness of the dismissal, however what the Applicant considers to be the significant underpayment of accrued LSL rights would not be materially dealt with as part of the unfair dismissal application. I note that the Respondent has paid some LSL on termination and the dispute appears to be about whether the Applicant has already taken some pro-rata LSL which would have reduced the amount of LSL payable on termination.

 9   Although Ms Cowley was not formally operating as a representative, the principles discussed in Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1 and McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59 [35] appear to be relevant in that regard.

 10   As set out in part 3 of the Form F3 Employer Response.

 11   PR723190