Jordan Steven Kimhi v SA Drains Pty Ltd

[2020] FWC 1859

[2020] FWC 1859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jordan Steven Kimhi
v
SA Drains Pty Ltd; Simon Lukasz Mucha
(C2019/6787)

COMMISSIONER YILMAZ MELBOURNE, 22 APRIL 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time refused.

[1] On 6 November 2019, Mr Jordan Steven Kimhi lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) against SA Drains Pty Ltd (First Respondent) and the Director of the company, Mr Simon Lukasz Mucha (Second Respondent) (collectively referred to as the Respondents). Mr Kimhi was engaged as an apprentice under a training contract in South Australia and alleges that the termination of his employment constitutes an adverse action because it occurred after he sustained a workplace injury.

[2] It is not in dispute that on 6 September 2019, Mr Kimhi was advised in person by the Second Respondent that his employment was terminated because the business could no longer afford to employ him. However, Mr Kimhi’s position on the date his termination came into effect appeared to change throughout the course of proceedings. Mr Kimhi submits that the Respondents attempted to terminate the contract of training separately on 2, 1 142 and 16 October 20193 and argues that repudiation of the employment contract did not occur until he accepted termination of the contract of training. Mr Kimhi submits that his employment was not terminated on 6 September 2019, but if it was, then he seeks an extension of time.

[3] The Respondent submits Mr Kimhi was terminated at the face to face meeting that occurred on 6 September 2019.

[4] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

[5] Both the Applicant and the Respondents engaged solicitors and counsel. The matter had been delayed a number of times due to the conduct of the representatives of the parties. Neither the Applicant nor the Respondents presented in person at the first hearing. As the matter had already been delayed on multiple occasions prior to the first listed hearing, to avoid further delay, legal counsel was granted leave to appear at the hearing of 7 February 2020.

[6] Vital documents pertaining to Mr Kimhi’s employment and apprenticeship were referred to, and relied on by both parties, however, these were not filed with either parties’ submissions and were not available to be tendered during the hearing. I therefore allowed the parties with additional time to file and serve additional evidence and submissions.

[7] A further hearing date was scheduled for 6 March 2020, after the parties disagreed over whether the materials submitted had exceeded the scope of the directions.

The date of dismissal

[8] Mr Kimhi submits on 6 September 2019, he attended a meeting with the Second Respondent where the Second Respondent informed him that his employment was terminated because it could no longer afford to employ him. As no notice was given, he submits “there was no legal or factual basis to terminate the employment” 4, that this amounts to a breach of the s.117 of the Act and as such the employer’s attempt to terminate was “invalid”5. On the same day, the Respondents also sought to terminate the contract of training, however, Mr Kimhi refused to sign the forms to terminate the contract of training. He submits both actions amount to adverse action.

[9] In respect to the meeting of 6 September, Mr Kimhi states the following in his witness statement:

“I met Mr Mucha my boss on 6 September 2019 at 7am at the Company business premises…I brought up to Mr Mucha that Colbey (tradesman) said you were going to fire me. He said, is there anything else you wanted to ask. I said no, he said well the company is cutting costs and that someone has to go. That person is you. Mr Mucha said we can’t afford your position and are letting you go. Mr Mucha asked how I felt about that. I said pretty shit. Mr Mucha continued. I just agreed with everything Mr Mucha said. I did not want to argue the point. No documents were given to me at the time of dismissal. Mr Mucha demanded that I bring back ALL work clothes or he wouldn’t pay me the additional 2 weeks. I left and that was it. The meeting went for 23 minutes.” 6

[10] Upon questioning of the above statement during the hearing, Mr Kimhi confirmed he was informed of his termination on 6 September 2019 and understood he could not return to work after that date. 7 He confirmed he returned his work uniform the following Monday after the meeting.8

[11] On 9 September 2019, Mr Kimhi submits he received a letter of termination from the employer’s office. The termination letter was dated 6 September 2019. 9

[12] Mr Kimhi claims the Respondents provided him with the ‘Training Contract Termination’ form on 8 October 2019, however it was partially completed by the Respondents and the termination date was backdated to 6 September 2019. The form had already been signed by the Second Respondent on 2 October 2019. 10 In relation to this, he claims that Mr Mucha himself did not think Mr Kimhi’s employment was terminated on 6 September 2019.11 Mr Kimhi submits that even though he initially declined to sign the form, he did consent to the termination of the apprenticeship on 14 October 2019. 12

[13] The Respondents submit there is no explanation to support Mr Kimhi’s claim that the meeting of 6 September 2019 and the letter of termination, which was subsequently provided to him, did not legally bring the employment to an end. 13

[14] If I accept the termination date is 6 September 2019, the application is 40 days late. The subsequent materials filed by the Applicant confirmed that the mutual agreement to terminate the apprenticeship occurred on 14 and not 16 October 2019. 14 Therefore, if I was to accept the termination occurred on 14 October 2019, that would mean the application was late by two days.

[15] Based on the material before me, I do not agree that Mr Kimhi was terminated on 14 October 2019. In South Australia an apprenticeship cannot be terminated unless by agreement between the parties, and with approval of the Training and Skills Commission. Disputes relating to apprenticeships are dealt with by the South Australian Employment Tribunal. Should the Training and Skills Commission receive such a form signed by both parties, it is unlikely to be challenged, but accepted as a mutual agreement to terminate the apprenticeship.

[16] Neither party submitted that the dispute concerning termination was dealt with by any other body. Mr Kimhi confirmed that he did not dispute his termination of apprenticeship with the South Australian state training authority. In fact, the form ‘Training Contract Termination’ which Mr Kimhi signed on 14 October 2019, confirms it is a mutual agreement to terminate the apprenticeship effective from 6 September 2019 due to financial hardship. 15

[17] I do not need to determine whether the employment was terminated at the same time as the apprenticeship, because the Training Contract Termination form confirms the termination of the contract of employment and contract of training took effect on the same date that is, 6 September 2019.

[18] This matter is therefore out of time by 40 days.

Consideration

[19] On 7 February 2020 and 6 March 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[20] General protections applications involving dismissal must be made within 21 days.

[21] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position.

[22] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 16 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 17

[23] I now turn to Mr Kimhi’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[24] The Applicant’s counsel submits the length of delay is not so important in this matter. 18

[25] Counsel for the Applicant submitted that the reason for the delay (if I was to accept that the application is late) is largely due to the error of his solicitor, that there was confusion by Mr Kimhi and his legal adviser because there were four separate legal actions. 19 The four separate actions included the termination of employment, the workers’ compensation claim, termination of the apprenticeship and the adverse action claim.

[26] Mr Kimhi refers to his medical condition in his witness statement 20 of 13 February 2020. The witness statement describes the nature of the skin condition, the medical treatment undertaken, the discussions with Mr Mucha, the diagnosis that Mr Kimhi was highly allergic to the chemicals in the workplace and his statement included his account of his physical and mental condition.

[27] In addition to Mr Kimhi’s witness statement which he confirmed was his during the hearing on 6 March 2020, a witness statement 21 of Mr David Starke, solicitor for the Applicant was filed. This brief witness statement does not confirm when he met with Mr Kimhi, although it suggests there was more than one meeting because Mr Kimhi found it difficult to concentrate, was in pain due to the itching all over his body and initially had very little paperwork. Mr Starke confirms there were a number of issues identified, potential bullying, workcover, the apprenticeship contract of training and its termination. Mr Starke provides no further evidence in support of the application to extend the time to file this application.

[28] Mr Kimhi stated while giving evidence that he contacted and met with his solicitor around mid-September 2019. 22

[29] Mr Kimhi in his statement states that due to his mental and physical health he was not able to properly deal with the legal implications of his situation. 23 In support of his medical condition, Mr Kimhi submits a photograph24 and medical reports,25 which were attached to his witness statement.

[30] The medical report of Dr Jeff Wayte 26 dated 12 November 2019, to the insurer describes the symptoms and treatments over the course of Mr Kimhi’s appointments from 23 May 2019 to 5 November 2019. This report describes the allergic dermatitis due to epoxy resin, its resolution through the avoidance of the chemicals together with a range of prescribed medications, and the presence of continued transient itchy skin lesions. Dr Wayte assessed Mr Kimhi as being able to work but must avoid contact with epoxy resin. Further he anticipates that Mr Kimhi would be able to resume full pre-injury duties.

[31] The report of Dr Wayte does not address Mr Kimhi’s capacity to deal with legal matters. No evidence was submitted to support Mr Kimhi’s contention that his illness affected his capacity to deal with his general protections application.

[32] It is not contested that Mr Kimhi sought legal advice; however, the date(s) of meeting(s) and the detail of that advice is not evidently clear. It does appear that Mr Kimhi solely relied on his legal adviser as he did not take any steps to appraise himself of his legal entitlements outside of seeing Mr Starke. Further, the evidence does not support that Mr Kimhi clearly instructed Mr Starke relating to his application. If Mr Kimhi met with his legal adviser in mid-September 2019 as he stated during the hearing, and both Mr Kimhi and Mr Starke discussed four legal actions, it can reasonably be inferred that conditions or limitations associated with the four applications were discussed or at least considered by Mr Starke. Had Mr Starke or Mr Kimhi initiated the s.365 application at that time, this application would not require an extension of time.

[33] Mr Kimhi filed his application 40 days after the due date and relies on the submission that the lateness is due to his legal representative’s error and that he was in a mental and physical state where he could not deal with his legal responsibilities. No further detail was provided in evidence to explain the representative’s error nor any evidence relating to Mr Kimhi’s medical condition to support his contention that he had an incapacity to deal with his legal obligations.

[34] The Respondents submit that the Applicant did not make out its case satisfactorily regarding his delay in making the application for an extension of time. Further, they do not object to the two witness statements and say that they do not provide the necessary evidence, are “vague, deficient and provide no explanation” 27 to support the delay.

[35] In this instance there is no evidence that there are exceptional circumstances. The responsibility falls on Mr Kimhi, he is not blameless as he failed to provide instructions, failed to follow up with his legal adviser and failed to ascertain his rights and obligations. The submissions confirm there was confusion over the four legal actions and ignorance of the law or over jurisdiction is not an exceptional circumstance. Further, it was submitted that should the Commission not grant an extension of time, the applicant would pursue the legal action in the Federal Circuit Court regarding other matters.

[36] Having regard to the submissions and evidence, I am not satisfied that the Applicant demonstrated exceptional circumstances regarding the reason for the delay. I do not consider the reasons given for the delay weigh in the Applicant’s favour.

Steps taken to dispute the termination

[37] Mr Kimhi did not take steps to challenge his termination of employment with his employer until he lodged the application on 6 November 2019.

[38] The lack of any action by Mr Kimhi prior to lodging his application does not weigh in his favour.

Prejudice to the employer

[39] Mr Kimhi asserts that granting an extension of time will not cause the Respondent disadvantage or unfairness.

[40] The Respondents submit that the delay due to the wrongdoing of the Applicant’s lawyer should not result in detriment to the employer, nor should the tribunal indemnify the “admitted negligence”  28 of Mr Kimhi’s representative.

[41] The Respondents further submit that the lateness of the application has affected the Respondent’s business insofar as the “Respondent allocating and borrowing resources from South Australia to open a new business interstate” 29. The Respondent’s Director is now expending significant time interstate on his new endeavour”30 and the application prevents him from focussing on the new business.

[42] While I accept that an extension will be an inconvenience, this does not constitute an unfair disadvantage caused by the delay. In line with established precedent, even the absence of prejudice is an insufficient basis to grant an extension. In this matter I find this consideration neutral.

Merits of the application

[43] Mr Kimhi submits that he commenced employment with the First Respondent on 27 December 2018 and was engaged as an apprentice plumber from 3 January 2019. 31 He submits he sustained a workplace injury on 2 April 2019. It is submitted that Mr Kimhi suffered a dermatitis reaction to chemicals used in the workplace which covered his whole body. The skin reaction required the wearing of personal protective equipment. It is also submitted that the Respondents filed a workers compensation claim on behalf of Mr Kimhi on 1 July 2019.

[44] It is submitted that the Second Respondent, Mr Mucha contravened s.550, and his involvement in the adverse action was in breach of s.340 (protection) and s.351 (Discrimination) of the Act.

[45] It is submitted that Mr Kimhi suffered a disability arising from the workplace, and it was untrue that the business could not afford him, it is submitted the Second Respondent communicated a high level of business performance immediately prior to the adverse actions. 32

[46] Mr Kimhi contends that while his application seeks an extension of time, he also intends to pursue a remedy in the Federal Circuit Court for the Respondents’ failure to provide the statutory notice period, the Information Sheet and access to the relevant Modern Award.

[47] Mr Kimhi contends that the reason for his termination of employment was not due to the Respondents’ inability to pay him, rather, because he had suffered a workplace injury which resulted in a worker’s compensation claim. In support of his contention, he submits that the Respondents reported favourable profit growth to all employees including expansion of the business interstate. 33

[48] The Respondents also in their submissions admit to the Director’s attention on new business interstate. However, they submit that the reason for termination was that the business was underperforming with losses incurred and costs had to be “reduced in order to ensure the survival of the business and the security of employment for the majority of employees”  34. The Respondents do not address in their submissions their position in terms of the alleged contravention of the general protection provisions cited in Mr Kimhi’s application.

[49] The contents of Mr Kimhi’s witness statement were not disputed by the Respondents. I note in particular the evidence pertaining to the injury, the worker’s compensation claim, the medical expenses incurred by Mr Kimhi and the receipts given to Mr Mucha, the medical findings, the lack of personal protective equipment which led to the exposure to epoxy resin, the announcements to staff about profit growth, the manner in which Mr Kimhi was terminated and his evidence concerning failure to provide notice and the payment of leave entitlements.

[50] Both parties acknowledge that the termination of employment occurred on 6 September 2019 in a face to face meeting. However, Mr Kimhi argues the correct date of termination is when the apprenticeship was terminated on 14 October 2019, despite his witness statement and oral evidence. The reference to the two weeks in the witness statement is unclear as to what it relates to. There is some suggestion in the witness statement that Mr Kimhi went on leave from 9 September 2019, but this was not confirmed.

[51] In his application, Mr Kimhi seeks the payment of his entitlements of annual leave for time taken as leave and on termination including applicable notice.

[52] While the merits were not tested, the witness statement of Mr Kimhi was not contested which therefore in my opinion raises the potential for an arguable case. This consideration in my view weighs in favour of the Applicant, however, the remedy sought relates to Mr Kimhi’s statutory entitlements which can be pursued without the requirement for a general protections matter involving dismissal, particularly having to deal with an extension of time application.

Fairness between the person and other persons in a like position

[53] Both the Applicant and Respondent did not adequately address this consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[54] This matter is out of time by 40 days and on balance after taking into account the above considerations, I am not satisfied that Mr Kimhi has substantiated exceptional circumstances for an extension of time.

[55] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mr Manuel Counsel for the Applicant

Mr Belperio Counsel for the Respondent

Hearing details:

2020
Melbourne
7 February 2020; 6 March 2020

Printed by authority of the Commonwealth Government Printer

<PR718146>

 1 Applicant’s Outline of Submissions at [7].

 2 Applicant’s Further Submissions at [3].

 3 Applicant’s Outline of Submissions at [7].

 4 Applicant’s Form F8 at Q3.1 at [6].

 5 Applicant’s Outline of Submissions at [6].

 6 Exhibit A1 at [47].

 7   Applicant’s witness evidence of 6 March 2020.

 8   Ibid.

 9   Ibid at JSK-5.

 10   Ibid at [54]; JSK-6.

 11 Ibid at [7].

 12 Applicant’s Further Submissions at [3]; Exhibit A1 at [55], JSK-7; Exhibit A2 at [1].

 13   Respondent’s Further Submissions at [8]-[9].

 14   Exhibit A1 at JSK-7.

 15   Ibid.

 16   [2011] FWAFB 975.

 17 Ibid at [13].

 18   Applicant’s Oral Submissions of 7 February 2020.

 19   Ibid.

 20   Exhibit A1.

 21   Exhibit A2.

 22   Witness Evidence of Mr Kimhi on 6 March 2020.

 23 Exhibit A1 at [65].

 24   Ibid at JSK-3.

 25   Ibid at JSK-4; JSK-8.

 26   Ibid JSK 8.

 27   Respondent’s Oral Submissions of 6 March 2020.

 28 Respondents’ Outline of Submission at [14].

 29   Respondent’s Outline of Argument at Q1g.

 30   Ibid.

 31   Applicant’s Further Submissions at [13.1]- [13.2].

 32   Ibid at Q3.3

 33   Applicant’s Further Submissions at [13.6].

 34   Respondents Outline of Argument at Q1h.