Krasander Kulas v Prosegur Australia Pty Limited T/A Prosegur
[2018] FWC 803
•6 FEBRUARY 2018
| [2018] FWC 803 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Krasander Kulas
v
Prosegur Australia Pty Limited T/A Prosegur
(U2017/7598)
COMMISSIONER CIRKOVIC | MELBOURNE, 6 FEBRUARY 2018 |
Application for an unfair dismissal remedy – effective date of dismissal – whether to extend time for lodging the application. Application for an unfair dismissal remedy.
[1] On 14 July 2017 Mr Krasander Kulas (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Prosegur Australia Pty Ltd T/A Prosegur (the Respondent).
[2] The Applicant commenced employment with the Respondent on 25 July 1995. 1 He was employed as an Armoured Vehicle Operator.2 The Applicant submits that his dismissal took effect on 27 June 2017.3
[3] The Respondent submitted that the dismissal took effect on 20 June 2017. 4
[4] If the dismissal took effect on 27 June 2017 then the application is in time. If the dismissal took effect on 20 June 2017 then the application was lodged 3 days out of time. 5
[5] For the reasons set out below, I find the Applicant’s dismissal took effect on 20 June 2017. As he filed his application on 14 July 2017, his application was filed 3 days outside the statutory time period permitted by s.394(2)(a) of the Act. Further, I have concluded that I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394(3) of the Act. Accordingly, the application will be dismissed.
Legislative scheme
[6] Subsection 394(2) of the Act provides that an application under s.394 must be made within 21 days after the dismissal took effect:
(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).
[7] Subsection 394(3) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances (emphasis added). The Commission in concluding whether exceptional circumstances exist must take into account the following factors:
(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.
[8] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 6where the Full Bench said at [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.”
[9] As can be seen above, an unfair dismissal application “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:
“13 General requirements for lodging documents
...
(2) A document must be lodged with the Commission by:
(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or
(b) sending the document by post to an office of the Commission; or
(c) emailing the document in accordance with rule 14; or
(d) using the Commission’s electronic lodgment facilities in accordance with rule 15; or
(e) faxing the document in accordance with rule 16.”
Approach of the Commission
[10] The onus of establishing exceptional circumstances rests on the Applicant who needs to provide a credible reason for the entire period that the application was delayed. 7
[11] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which contained the following statement:
“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:
‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’
[30] This extract must be read in its entirety. The decision goes on to state:
‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’
[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”
Background
[12] On 28 August 2017 the Commission advised the parties that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgment pursuant to s.394(2) of the Act. The matter was heard on 22 September 2017.
[13] Pursuant to directions issued by me on 8 December 2017, the parties provided further written submissions on 20 December 2017.
[14] Permission to appear on behalf of the applicant was sought by Mr J. Catalano of Jo Cat Consulting and by Ms S. Caylock of Rigby Cooke Lawyers on behalf of the Respondent. Both parties filed submissions prior to the hearing of this matter seeking permission on grounds of complexity, effectiveness and fairness. 8 At the hearing, permission was granted pursuant to s.596(2) of the Act.9
[15] Evidence for the Applicant was given by:
• Mr Kulas, the Applicant.
[16] Evidence for the Respondent was given by:
• Mr Bainbridge-Robb, the General Manager Victoria and Tasmania.
Effective Date of Dismissal
[17] There is a dispute about the date on which the Applicant’s dismissal took effect.
Findings – Effective Date of Dismissal
[18] A termination of employment “does not take effect unless it is communicated to the employee whose employment is being terminated.” 10
[19] The following facts are not contested:
[20] The Applicant was sent a letter by the Respondent on 17 May 2017 (the termination letter) which is reproduced below: 11
“Further to our letters to you dated 14th March 2017 and 5th May 2017 (copies attached), we have received no response from you as requested.
As you have provided no reason or mitigating circumstances why your services should not be terminated, Prosegur now reiterates that your services will terminate with five weeks’ notice, effective on 20th June 2017.
Any monies owing to you will be paid out. Your superannuation fund administrator will be in contact with you in due course regarding your superannuation entitlements.”
[21] Attached to the termination letter were two earlier letters dated 14 March 2017 and 5 May 2017. It is conceded by the Applicant that he received the termination letter on 23 May 2017. 12
[22] On 24 May 2017 the Applicant sent a handwritten letter to the respondent (24 May letter) confirming receipt of the termination letter and copies of the two earlier letters dated 14 March and 5 May 2017.In this letter, the Applicant sought an extension of 21 days to respond. 13
[23] On 31 May 2017 the Respondent wrote to the Applicant (31 May letter) reproduced below as follows: 14
“We are in receipt of your letter dated 24th May 2017 which states you did not receive our previous correspondence of 14th March and 5th May 2017. Contrary to your statement, we have evidence that correspondence (or notification to collect such correspondence from your local post office) was delivered to your address.
Notwithstanding, we will accept further correspondence from you on this matter up to, but no later than, 13th June 2017.
Should you not be able to submit any mitigating circumstances why your employment should not be terminated for the reasons stated in our previous letters, the notice period and termination date of 20th June 2017 would remain unchanged.”
[24] The Applicant confirmed receipt of the 31 May correspondence at the hearing on 22 September 2017. 15
[25] On 20 June 2017 Mr Catalano forwarded an email on behalf of the Applicant to Mr Richardson, Human Resources Manager of the Respondent. In this email, the Applicant advised the Respondent that he objected to his “employment being terminated”, and requested that the Respondent provide him with an alternative role. 16
[26] On 27 June 2017 the Respondent wrote to the Applicant and confirmed that the Applicant’s employment had been terminated on 20 June 2017 (27 June letter). 17 Reproduced below as follows:18
“We are in receipt of an email on your behalf from Mr Joseph Catalano (dated 20th June 2017) which is attached for your records.
You have not been able to identify any mitigating circumstances stating why Prosegur should not terminate your services due to the circumstances raised in our previous correspondence to you but, specifically, that you are unable to return to perform the duties previously provided for you.
Rather than provide this requested information, you have requested “a suitable alternative role”, which Prosegur does not have.
Accordingly we confirm the termination of your services on 20th June 2017, the required notice period having already been provided to you.”
Applicant’s Submissions
[27] The Applicant submits that the application was not lodged out of time.
[28] The Applicant submits that the phrase “…we confirm the termination of your services on 20 June” 19implies that there was a chance that the Applicant was employed prior to this letter.20 It is the Applicant’s submission that the dismissal took effect on 27 June 2017 as this is the date that he was notified by the Respondent that they had elected not to offer him alternative employment.21
Respondent’s submissions
[29] The Respondent submits that it is clear on the evidence that at least from 23 May 2017 the Applicant was aware that his termination would take effect on 20 June 2017. 22
[30] The Respondent further submits that the Applicant was repeatedly advised that his employment would end on 20 June 2017 and further that there was no confusion between the parties about moving the potential dates of termination. 23
Findings
[31] In my view the termination letter constituted clear and unequivocal notice to the Applicant that his termination would take effect on 20 June 2017. I accept the Respondent’s proposition that a notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition. The relevant consideration is not whether the dismissal was confirmed in writing on 27 June 2017 but rather when it actually took effect.
[32] I have also had regard to the parties’ submissions as to the interaction between the termination of the Applicant’s contract of employment and the ending of the employment relationship. The parties agree that the termination of the contract of employment and the termination of the employment relationship may occur at different times. 24 I accept the submission of the parties on this point but it does not alter my finding in this matter that the termination of the Applicant’s employment took effect on 20/06/2017.
[33] In coming to my conclusion I have been guided by the authorities where this issue has been considered and in particular the observations of the Full Bench in Ayub v NSW Trains [2016] FWCFB 5500, 25 the Full Bench in Burns v Aboriginal Legal Service of Western Australia (Inc),26 the Full Bench in Qantas Airways Limited v Jarrod McRae [2017] FWCFB 403327 and most recently by the Full Bench in Mr Saeid Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162.
[34] That the Respondent chose to forward an unnecessary and albeit inelegantly worded letter on 27 June 2017 does not alter the fact that the Applicant was made aware clearly and unequivocally at least from 23 May 2017 that the termination of his employment would take effect on 20 June 2017.
Matters to be taken into account pursuant to s.394(3)
[35] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.
(a) The reason for the delay
[36] The Applicant submits that if I regard the application being lodged out of time, there are exceptional circumstances giving rise to the delay. The Applicant submits that:
• he lodged his application 3 days late; 28
• ‘the company gave him an opportunity to respond’;
• ‘he’s not sophisticated in the way he approached it’;
• ‘he’s not computer savvy’;
• ‘he doesn’t have his own email account’;
• ‘in the circumstances he thought he was complying with the opportunity the company was giving him and it’s certainly out of the ordinary and…unusual’;
• the Respondent ‘could have just said to him: “Sorry, we’ve made our decision, End of story” but they gave him the opportunity. He availed himself of it and he accepted that on the 27th it was final.’ 29
[37] The Respondent submits that the delay required to be considered is the period beyond the 21 day period for lodging the application – in this case the time between midnight on 12 July 2017 and when the application was lodged on 14 July 2017. 30 The Respondent also submits that there must be an acceptable reason for the whole period of the delay and relies on well-established principles in making this submission.31
[38] As to the reasons advanced by the Applicant, the Respondent says:
• the Applicant has not provided any reason for the delay other than miscalculating the timeframe as to when time began to run; 32
• the repeated reference and clarity in the Respondent’s correspondence to the Applicant of the 20 June 2017 termination date (including the 27 June letter); and
• that the 20 June 2017 termination date remained unchanged. 33
[39] For this consideration there must be an acceptable reason for the delay 34 and this must be for the whole period that the application was delayed.35 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.
(b) Whether the person first became aware of the dismissal after it had taken effect
[40] On the evidence before me, the Applicant received notification that his dismissal would take effect on 20 June 2017 on 23 May 2017. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.
(c) Any action taken by the person to dispute the dismissal
[41] Action taken by an employee to contest the dismissal, other than lodging an unfair dismissals application, may favour the granting of an extension of time. 36
[42] The Applicant submits that this is not a relevant consideration in this matter given that the application was filed 3 days late and “it’s not a lengthy period.” 37
[43] The Respondent submits that the Applicant did not take any action to dispute the dismissal after it took effect other than lodging the unfair dismissal claim 3 days late and that there is no evidence of the Applicant taking steps to contest the termination. 38
[44] On the basis of the above, I consider this factor to be a neutral consideration.
(d) Prejudice to the employer (including prejudice caused by the delay)
[45] Prejudice to the employer will go against the granting of an extension of time. 39
[46] The Applicant submitted that there is no prejudice to the employer. 40
[47] The Respondent conceded that prejudice was a neutral consideration. 41
[48] Accordingly, I consider this factor to be a neutral consideration.
(e) Merits of the application
[49] The Commission notes that for the purpose of determining whether to grant an extension of time to the Applicant to file his application it “should not embark on a detailed consideration of the substantive case.” 42
[50] The Applicant submits that “there are some merits to his argument and he should be heard.” 43 The Applicant submits that the Respondent did not “genuinely” consider finding him a “suitable alternative” position. The Applicant further submits that the Respondent had made the decision to terminate his employment previously and that the Respondent did not intend on giving the Applicant “an opportunity to persuade it otherwise.”44
[51] It is the Respondent’s submissions that the substantive application is entirely without merit and cannot be considered as a basis for the Commission to allow a further period for the Applicant to lodge his application. 45 The Respondent submits that the “evidence demonstrates the Applicant was notified of the reasons for his dismissal prior to the Respondent making the decision to dismiss him [and] was given the opportunity to respond to the reasons for the termination of his employment and to put forward any matters he wished the Respondent to consider before it decided what action to take.”46
[52] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 47 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application.48 I have not done so.
[53] Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.
(f) Fairness as between the person and other persons in a similar position
[54] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 49
[55] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[2016] FWC 6963 considered this criterion and said:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission on matters previously decided by the Commission.” 50
[56] The Applicant did not provide submissions on this point and the Respondent submits that this is a neutral consideration. 51
[57] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. As it is not a relevant factor, it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[58] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.394(3) of the Act. The expression “exceptional circumstances”, while not specifically defined in the Act, has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but that cannot be circumstances that are regular, routine, or normally encountered.
[59] A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend the time for lodgment can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 52
[60] Having considered all of the factors set out in s.394(3), on balance, 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.
[61] An order 53 to that effect will be published separately to this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Appearances:
Mr J Catalano paid agent, for the Applicant
Ms S Caylock of Rigby Cooke Lawyers, for the Respondent
Hearing details:
2017
Melbourne
22 September.
1 PN141, Form F2 – Unfair dismissal application, lodged 14 July 2017, p. 2.
2 Form F3- Employer Response to Unfair dismissal application, lodged 28 July 2017, p.3, Attachment 1, Exhibit A1, Witness Statement of Applicant dated 30 August 2017, para 2.
3 PN348 and PN696.
4 PN136 and PN711.
5 PN136.
6 [2011] FWAFB 975.
7 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403; [2010] FWAFB 7251.
8 Respondent’s submissions in support ‘Application for permission to be represented by a lawyer on behalf of Prosegur Australia Pty Limited’ filed 15 September 2017, paras 7-13; Submission in support of application for permission to be represented by a paid agent on behalf of Krasander Kulas filed 15 September 2017, para 3.
9 PN27.
10 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 [24].
11 Exhibit #R1, Witness statement of Clyde Bainbridge-Robb dated 14 September 2017, Attachment CB-3, Exhibit #A1, Witness statement of Krasander Kulas dated 30 August 2017, Attachment A, PN165.
12 Respondent’s Submissions filed 15 September 2017, para 9, Witness Statement of Krasander Kulas dated 30 August 2017, para 3.
13 Exhibit #R1, Witness statement of Clyde Bainbridge- Robb dated 14 September 2017, Attachment CB-4; Exhibit #A1, Witness statement of Krasander Kulas dated 30 August 2017, Attachment B; PN165.
14 Exhibit #R1, Witness statement of Clyde Bainbridge- Robb dated 14 September 2017, Attachment CB-5; Exhibit #A1, Witness statement of Krasander Kulas dated 30 August 2017, Attachment A, PN176.
15 PN479.
16 Exhibit #A1, Witness statement of Krasander Kulas dated 30 August 2017, Attachment C, PN179.
17 Exhibit #R1, Witness statement of Clyde Bainbridge-Robb dated 14 September 2017, Attachment CB-6; Exhibit #A1, Witness statement of Krasander Kulas dated 30 August 2017, Attachment D; PN186,
18 Exhibit #R1, PN228.
19 PN258.
20 PN259.
21 PN696 and PN697.
22 Respondent’s Outline of Submissions on Effective Date of Dismissal and Extension of time filed 15 September 2017, para 9, PN712.
23 PN711.
24 Applicant’s Submissions dated 20 December 2017 at [1]; Respondent’s Submissions dated 20 December 2017 at [4].
25 Ayub v NSW Trains [2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016 [17]).
26 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496
27 Qantas Airways Limited v Jarrod McRae [2017] FWCFB 4033.
28 PN698.
29 PN704.
30 Respondent’s Outline of Submissions on Effective Date of Dismissal and Extension of time, filed 15 September 2017, para 17, PN734.
31 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298; [299-300]; Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403; [408-409]; Mitchell Shaw v Australia and New Zealand Banking Group Limited T/ ANZ Bank [2015] FWCFB 287.
32 PN697 and PN736.
33 PN736.
34 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
35 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409.
36 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
37 PN706.
38 PN759.
39 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
40 PN697.
41 PN759.
42 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
43 PN709.
44 Witness statement of Krasander Kulas dated 30 August 2017, para 8.
45 PN759, Respondent’s Outline of Submissions on Effective Date of Dismissal and Extension of time filed 15 September 2017, para 29.
46 Respondent’s Outline of Submissions on Effective Date of Dismissal and Extension of time filed 15 September 2017, para 34.
47 Haining v Deputy President Drake (1998) 87 FCR 248, 250.
48 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
49 Wilson v Woolworths [2010] FWA 2480, [24]-[29].
50 Perry v Rio Tinto Shipping Pty Ltd[2016] FWC 6963, [41].
51 PN697 and PN759.
52 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
53 600192.
Printed by authority of the Commonwealth Government Printer
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