Joseph Richards v Vmdoaba Pty Ltd
[2023] FWC 1947
•14 AUGUST 2023
| [2023] FWC 1947 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Joseph Richards
v
Vmdoaba Pty Ltd
(C2023/1076)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 14 AUGUST 2023 |
Application to deal with contraventions involving dismissal – application made outside of the time prescribed – application for further time – whether there are exceptional circumstances – application dismissed.
The applicant, Joseph Richards, commenced his employment with the respondent, Vmdoaba Pty Ltd, as a Marketing Designer on or about 1 September 2022. He was dismissed from that employment with effect on 1 February 2023. On 28 February 2023, the applicant applied under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in which the applicant alleged that his dismissal by the respondent was in contravention of Part 3-1 of the Act. An application under s 365 of the Act must be made within 21 days after the dismissal took effect. The application should have been made by 22 February 2023 and was therefore made six days after the time prescribed expired.
The applicant requires the Commission to allow him a further period within which to make the application if it is to be further progressed. The respondent contends that the applicant’s dismissal was on performance grounds, and that he is not a national system employee because he resides in India and was wholly employed in India. This matter is one that is in dispute and the question of whether the applicant is a national system employee will separately need to be determined if a further period for making the application is allowed.
The Commission has a discretionary power to extend time within which such an application may be made, but the power is only exercisable if the Commission is first satisfied that there are exceptional circumstances, taking into account the various matters that are set out in s 366(2) of the Act.
The expression “exceptional circumstances” is not defined in the Act. However, it is well-established that the expression describes circumstances that are out of the ordinary, or unusual, or special, or uncommon, but the circumstances need not be unique, nor unprecedented, nor even very rare. Exceptional circumstances might exist having regard to a single event which is exceptional, or a combination of factors which, individually, are not exceptional, but when viewed together are sufficiently exceptional to persuade the Commission that there are exceptional circumstances.
Assessing whether there are exceptional circumstances requires the following matters be taken 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; (e) fairness as between the person and other persons in a like position.
Each of the matters needs to be considered, assessed and assigned an appropriate weight, taking into account the evidence about each matter. I will deal with each consideration in turn. But before doing so, it is necessary to set out some relevant background matters.
The respondent operates an online sales business, trading as Ripper Online selling various electrical, home theatre, entertainment and security devices. The respondent’s operational office is in Truganina, in the outer western suburbs of metropolitan Melbourne. The respondent advertised to recruit a marketing designer on naukri.com/greythr-jobs, self-described as “India’s No. 1 Job Site”. It was through that website that the applicant applied for the position. He was successful and on 31 August 2022 he received an email advising that:
Ripper Online is delighted to offer you the full time position of Marketing Designer with an anticipated start date of 1st of September 22, with 2 months of probation period.
As the Marketing Designer, you will be responsible to (sic):
·Perform daily operations of design tools to work on graphic designs, content creation, and marketing.
·Work closely with internal team (sic) to perform marketing campaign.
·Create graphics for website banners, email campaigns, and social media.
·Plan and create engaging graphic designs for social media and email content.
You will report directly to Elbranz, the Digital Marketing Manager via Email, Google Meet, WhatsApp, or any other communication tools. Our working hours are from Monday-Friday (9AM – 5PM) and Saturday (9AM – 1PM) Melbourne/Australian Time. We expect that you are also available in that time when needed, however not always.
The starting salary for this position is 5,50,000 LAKH per year. Payment is on a monthly basis by PayPal or Western Union at the end of each month.
Your employment is on a full time basis. This letter is not a contract indicating employment terms or duration.
Please confirm your acceptance of this offer by signing and returning the attached letter by today, hence you can start working tomorrow. Additionally, please also fill out and send back the payment method document on how you would like your payment (sic) be done.
Following are the contact numbers you can use to contact us. You can also contact us via WhatsApp.
1. Mani – General Manager
Mobile: [Redacted]
2. Elbranz – Digital Marketing Manager
Mobile: [Redacted]
Email: [Redacted]
Looking forward to working with you
[Bold emphasis in original]
After negotiating an increase in the salary offered to 7,00,000 LAKH per year, the applicant accepted the offer of employment by email dated 1 September 2022, and he signed an offer letter. On 12 September 2022 the applicant sent a text message to the respondent asking whether the job was a permanent job rather than just for a few months and whether there were any Visa requirements needed to work “for a foreign company even if it is remote”. On the same day the applicant received a reply advising that “it’s (sic) permanent full-time job with ripper online, Visa requirement is not there to work remotely”.
The probation period ended on 31 October 2022 and by email almost two and a half months later, on 11 January 2023, the respondent advised the applicant that he had “successfully passed [his] probation period”. The email also advised the applicant that “[t]he team is extremely happy with your work progress, can’t wait to see you grow more with us”. The applicant was asked to read through the Remote Working Policy and Guidelines (policy) and to send them back with his name and signature.
Subsequently, the applicant says that he raised concerns about the policy and on 20 January 2023, he also raised concerns about the use of an application called “Time Doctor” which is in substance an application that monitors time spent working on a project and which takes screenshots of work being undertaken from time to time. In substance the applicant says his concerns were that the policy was vague and that the use of Time Doctor, particularly its capacity to take screenshots of the applicant’s laptop every few seconds, infringed his right to privacy. The applicant alleges that when he raised his concerns with his manager, his manager became very angry and threatened to terminate his employment if he did not comply.
The applicant also received a message from his manager on 20 January 2023 which provided “[f]or the last time, if you are still not happy with the work policy is (sic) with deepest regret that we will terminate your position by (sic) end of this month. We are here not to have arguments, we are trying our best to achieve (sic) company’s goals”. The applicant responded later that day as follows:
I have read the work police (sic) and I’m ready to follow the clauses. I have only raised my concerns because I felt it to be very partial. This i (sic) have made myself (sic) clear from the start, i (sic) don’t have a problem with the company work timing or timedoctor, even if (sic) to follow the Australian timing. I spoke about this initially to Elbranz and he was okay with it. I can work on my discretion and my work was going well. Even timedoctor (sic) I didn’t have a problem, i (sic)just had a few concerns that you are not ready to address untill (sic) now.
And for salary it was said salary may increase if we see good performance. I under (sic) the impression i (sic) would get the hike after probation. All i (sic) asked was that, but i (sic) didn’t get proper response except Mani outrightly stating that nothing like that is there.
This is not an argument, I’m just making clear what i (sic) was asking and how things got escalated.
I like (sic) to continue working in the company, i (sic) will be seeking help from the Australian human resources for more clarification regarding work policy just for my clarification. I need some legal advice regarding this.
[Bold emphasis in original]
The applicant did not receive a response. Instead on 25 January 2023, he received correspondence which informed him as follows:
We are sorry to inform you that as of 1st of February 2023, you will be no longer employed with Ripper Online. We have concluded, following our investigation, the reason behind this termination is due to your reduced performance, behavior (sic) and your neglect towards the policy. We have given a warning email before this Termination email in mid January 2023, however, there was no improvement or changes to your performance.
We consider that your behavior (sic) and last performance are unsatisfactory and have decided to terminate your employment for the following reasons:
1. No work progress in our particular project (Product Catalog).
2. Neglecting our Work Policy, particularly in the use of Time Doctor. As a result, low attendance is shown in the report. [see the attached image]
3. Reduced performance on given tasks, such as exceeding the due date.
4. Constantly asking for a pay rise even though we already advised that salary review is done every 6-month or 1-year, not after probation.
Payment for your salary will still be paid in your final paycheck which you will receive on your regular payday.
On 3 February 2023 the applicant purported to send correspondence by email to the Human Rights Commission and to the Melbourne registry of the Fair Work Commission with a subject line “unlawful termination, please help”. The email concluded with a request to “Please help check the legality of the work policy and if my termination was Unlawful” [Bold emphasis in original]. As best as can be established, although the email appears to have been sent to the correct email address for the Melbourne registry of the Commission, the email was not received. But that which is clear is that the applicant consulted the Commission’s website to obtain the email address and he also consulted the Commission’s website to arrange for legal assistance through the Commission’s Workplace Advisory Service (WAS), with which he first engaged on 12 February 2023. In his WAS request the applicant indicated that he had a concern about dismissal.
On 13 February 2023, the day after applying through the Commission’s website for WAS assistance, the applicant wrote to the respondent in the following terms:
Hi,
I have contacted the fair work commission (fwc) and human rights in australia (sic) about the unfair dismissal with all the details i (sic) have, where i (sic) learned the job offer in Australia was not valid without a visa. Since the payment was made from Australia and also directly hired by the company in Australia. So I was directed to register a complaint for an enquiry with Border Watch in Australia and Australian High Commission ,New Delhi (sic) against the job offer and company.
So, I have registered a complaint/enquiry request for job validity with stating (sic) the termination with both Border Watch , (sic) Fair Work Commission and Australian High Commission ,New Delhi (sic). Upon reviewing the enquiry request they suspect that I was a victim of a scam and was directed to file a complaint in both police stations in India and get legal consultation in Australia against the companies and to follow with more details.
So to follow up and also for a legal consultation I was directed to give an official request and clarity (sic) on the subject from the company stating my reason for the request.
OFFICIAL REQUEST TO INFORMATION ON MY JOB
1. Registered Business Name, ABN, Address, Phone Number and Owner of the business.
2. Payment Receipt of the Salary and hourly wage of the employee.
2. Fair work information statement, Taxes - details on employee taxes TFN, Is the company registered for PayG.
3. My Employee(Richard) Number and Employee(Richard) Email ID.
4. Where is the employee (Richard) registered?
With which company is the contract made.
5. On september (sic) 12th employee ((Richard) specifically raised a request with Mani and Dayrama Elbranz Aliandheart ablout (sic) the job and visa validity upon which they assured employee that the job requires no visa. So please clarify this.
Reason for the request as explained above, to follow up on the enquiry.
1. to file a suit ( Law Institute of Victoria provides me with an option of lawyer in Australia ) against visa scam and cheating ( given the report of the enquiry and details provided by the company) , unfair dismal, bullying at work.
2. to register a police complaint in India for an enquiry into job offer.Please comply as early as possible.
[Bold emphasis in original]
Having not received a response by 16 February 2023 the applicant sent a further email to the respondent in which he advised the respondent as follows:
Hi,
Since there was no response from the company side regarding the inquiry information about concerns regarding to the job in ripperonline (sic) as requested by me for the reasons stated in the previous email. I’m forced to move forward to raising complaints and enquiry into (sic) the matter through official channels.
Through WAS, arrangements were made for the applicant to consult a lawyer at the South-East Monash Legal Service (SMLS) using Microsoft Teams at 9:30 am on 23 February 2023. Unfortunately, the applicant did not make the appointment and after being advised by the service that its lawyer had waited on the line for a “good while” and that he would need to re-book “through Fairwork” if he still required legal assistance, the applicant sent an email in which he advised “I tried connecting at 9:30 AST but there was no answer”. In truth SMLS’s Teams meeting logs show that the applicant endeavoured to log on at 10:30 am AEST, an hour after the scheduled time for appointment. The applicant made a further request for assistance through WAS and another appointment was made for 28 February 2023, which the applicant kept. He was advised to make an application under s 365 of the Act which he did shortly after the appointment concluded.
When a person seeks WAS assistance, the person is directed to a web page with the following information:
Use this form to find out if you are eligible for free legal advice through the Workplace Advice Service.
Please note:
·This service is entirely separate from making a formal application to the Commission.
·You only have 21 days from the date of dismissal to lodge a formal application for unfair dismissal or general protections dismissal.
·If you need help sooner, or are not eligible, other legal help is available.
I want to
omake a request for legal advice
olodge an application with the Commission
If the person selects, as the applicant did, “make a request for legal advice”, the following text appears:
There is currently a high demand for the Workplace Advice Service. It can take us up to 5 days to reply to your request for help. It will be longer again before you have your appointment.
Please note:
·Using this service is entirely separate from making a formal application to the Commission.
·You only have 21 days from the date of dismissal to lodge a formal application for unfair dismissal or general protections dismissal.
·If you need help faster than that, or are not eligible, other legal help is available.
·If you need information about COVID-19 vaccination in the workplace please visit the Fair Work Ombudsman website.
In each case, that there is a 21-day time limit for making an unfair dismissal or general protections dismissal application is clearly communicated, as is the fact that the WAS service is entirely separate from making a formal application to the Commission.
I now turn to consider the matters in s 366(2).
Reason for delay
As to the reason for the delay, the Act does not specify the reason or reasons for delay which might favour the grant of an application. 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, conversely, a credible explanation for part, or all, of the delay will usually weigh in the applicant’s favour. However, all the circumstances need to be considered.
The period of delay with which we are concerned is the period after 21 June 2023, but the circumstances during the 21-day period may be relevant in assessing the credibility or the reasonableness of the explanation given for the delay.
The reasons given by the applicant for the delay as set out in his application were that finding the correct body to lodge his complaint was difficult, stressful and time consuming and that the $70 application fee was too onerous, being one tenth of his monthly wage, and he did not know it could be waived. In the hearing the applicant did not mention the fee as a reason for the late filing and when asked whether the $70 application had anything to do with his late application he said “no”.[1]. The only reason for the delay that the applicant confirmed during the hearing, was that he did not know how to submit “a complaint to Fair Work” until 28 February 2023 which was the day he lodged his application shortly after he consulted a lawyer. I do not accept the explanation given as either satisfactorily explaining the delay nor as an accurate explanation. Immediately below the option the applicant selected to access the WAS referred lawyer, appears a second option which is “lodge an application with the Commission”. When selecting that option, the following text appears:
The Workplace Advice Service can only help with questions about dismissal, general protections and workplace bullying.
To make a formal application for the Commission to deal with your issue, please visit the unfair dismissal, general protections or workplace bullying section of our website.
There is a 21 day time limit for lodging unfair dismissal applications and general protections dismissal applications. We count the 21 days from the date your dismissal took effect. It is very important that you get your application in before the deadline. It is easier to add more information to your application after you’ve lodged it than it is to lodge a late application.
If you are looking for legal advice about other issues please see Where to get legal advice, or contact the Commission on 1300 799 675.
The “general protections” link directs a person to the forms that may be used to make an application, including to the Form F8A, the general protections application involving a dismissal form. Once the link to the Form F8A is selected the person is able to use one of the three methods available to lodge the form, by applying online, by completing either a word or PDF version of the form and lodging it by email or delivering to one of the Commission’s offices. The following information also appears writ large:
Before you start
An application is the start of a legal process. When you lodge this form you will need to pay a fee.
Remember: you must apply within 21 days after the date of your dismissal. It is important to get your application to us on time. You can apply even if you don’t have all the information yet. You can send us more details and supporting documents after you have applied.
We can only extend the deadline for lodging an application in exceptional circumstances. For information on how the 21 days is calculated, go to Timeframe for lodgment.
Having accessed and applied for assistance through WAS on the Commission’s website it is inconceivable taking into account the above that the applicant did not know at a very early stage how to apply to the Commission in relation to his dismissal and that there was a time limit of 21 days applicable to such an application. I do not accept the applicant’s evidence that he did not know how to apply until he consulted a lawyer at SMLS. The information about how to apply was available in the very material he was using to access WAS. Accordingly, I do not accept the applicant’s reason for the delay. No other reason for the delay was advanced.
In the circumstances that there is no credible or acceptable explanation for the delay or any part of this is a matter that weighs strongly against a conclusion that there are exceptional circumstances.
Action to dispute dismissal
Next is the question whether any action was taken by the applicant to dispute his dismissal. A reason that action taken by a person to dispute the dismissal is a mandatory relevant consideration in assessing whether there are exceptional circumstances, is that if the person disputes a dismissal with their employer or brings the dispute to the employer’s attention, the employer is on notice that there is a controversy about the dismissal. Any subsequent application relating to the dismissal, even one that is made outside of the time prescribed, does not come as a surprise to an employer who is on notice that the dismissal is disputed. In such circumstances the action taken might weigh in an applicant’s favour. Conversely the failure to take any action to dispute the dismissal or to bring that dispute to the employer’s attention might weigh the other way. Ultimately where the balance lies depends on the circumstances in each case.
Here the applicant took a step to dispute his dismissal by sending correspondence to the respondent on 13 February 2023. This was before time to lodge an application had expired and is a matter that weighs in favour of the applicant.
Prejudice
As to prejudice, the respondent, does not assert that it would suffer any prejudice generally or because of the delay. The delay period was relatively short – 6 days. The absence of any prejudice in and of itself is not a basis to conclude that there are exceptional circumstances and, in a case involving a short delay, prejudice will rarely flow as a consequence. That said, some assignment of weight should be given, and the absence of prejudice is a factor that weighs in the applicant’s favour, although, in the circumstances of this case, only very slightly so.
Merits
Turning then to the merits of the application. In a proceeding of this kind, which is essentially interlocutory in nature, it is not possible, nor appropriate, to determine the merits of an application in any substantive way. The various competing contentions and the evidentiary disputes are not able to be properly tested as would happen in a full hearing of the merits. Nevertheless, some assessment needs to be made as to the strength or merits of the applicant’s case.
That the applicant was dismissed at the respondent’s initiative is not in contest and so that the respondent took adverse action against the applicant in the form of dismissal is also not in contest. The reason for the dismissal is in contest, but the applicant has pointed to possible exercise of a workplace right by him in making a complaint or enquiry in relation to his employment, and he alleges that that is the reason for his dismissal. Dismissal because or for reasons that include that the applicant exercised a workplace right is proscribed. Consequently, and assuming that the applicant is entitled to the protection, the applicant will have done enough to obtain the benefit of the presumption that his dismissal was for the reason alleged unless the respondent can prove otherwise. The respondent contends that the dismissal was for reasons of performance although it has not provided any evidence of the alleged underperformance. That said there is a serious question as to whether the applicant is protected at all by the general protections provisions of the Act. Although the respondent is a constitutional corporation and a national system employer for the purposes of its Australian based employees, the applicant entered into a contract of employment which appears was wholly formed in India, the applicant does not reside in Australia, is not an Australian citizen, does not have any form of Visa which would permit the applicant to work in Australia and the termination of his employment, was, it appears, also effected in India. These matters taken together suggest that the applicant is not entitled to the protections afforded by the general protections provisions of the Act and so is not entitled to make an application under section 365. In the circumstances I consider that the merits of the application viewed as a whole are not particularly strong and so this consideration is a matter that weighs against a conclusion that there are exceptional circumstances.
Fairness
Finally, there is the question of fairness as between the applicant and other persons in a like position. This consideration involves a comparison between the position of the applicant and one or more persons who have been dismissed in a like position. Neither party made any submissions on this point. Most cases involving applications to extend time turn on their own facts and circumstances. In the instant case there are no relevant comparators of which I am aware which would inform the ascribing of any weight other than a neutral weight to this consideration and neither party made any relevant submissions which engaged with this consideration.
Conclusion
In sum, the applicant has not provided any acceptable explanation or reason for the delay. In the circumstances of this case and taking into account the information that was available to the applicant as set out above, I consider that the absence of an acceptable explanation or reason for the delay is a matter that weighs strongly against a conclusion that there are exceptional circumstances. Although the applicant took steps to dispute his dismissal beyond making this application, the merits of the case are weak for the reasons stated and the prejudice consideration weighs only slightly in favour of the applicant.
Taking these matters into account collectively I am not satisfied there are exceptional circumstances nor am I persuaded that any individual matter is so significant as to justify a conclusion that there are exceptional circumstances. Consequently, there is no basis for me to consider the exercise of my discretion to allow the applicant a further period within which to lodge the application.
The application for an extension of time is therefore refused and, since the application was made outside of the time prescribed and without any further period being allowed, the application has not been made in accordance with the Act. Consequently, the application is dismissed.
Order
The application in C2023/1076 is dismissed.
DEPUTY PRESIDENT
Appearances:
J Richards self-represented
D Joshi, solicitor for the respondent
Hearing details:
2023
Melbourne (via Microsoft Teams)
21 July 2023
Final written submissions:
[1] Transcript PN255
Printed by authority of the Commonwealth Government Printer
<PR764936>
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