Kumud Kumar v Royal Taj (Restaurant) T/A Royal Taj
[2016] FWC 3346
•9 JUNE 2016
| [2016] FWC 3346 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Kumud Kumar
v
Royal Taj (Restaurant) T/A Royal Taj
(C2016/3560)
COMMISSIONER WILSON | DARWIN, 9 JUNE 2016 |
Application to deal with contraventions involving dismissal; whether extension of time should be granted.
Background
[1] Kumud Kumar Kumar lodged an application with the Fair Work Commission to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Mr Kumar’s application relates to the termination of his employment by Royal Taj, a restaurant operating in Queensland’s sunshine coast hinterland, during March 2016, and was received by the Commission on 28 April 2016. For the reasons set out below, I find the date of termination to be 25 March 2016.
[2] Mr Kumar was first employed in late September 2015 as a cook, under a sub-class 457 visa arrangement. The employment relationship was a problematic one. The Respondent held concerns as to Mr Kumar’s competence as a chef; and his initial tardiness and subsequent non-attendance for work. This culminated, very early into Mr Kumar’s employment, with an initial termination of employment letter, dated 5 October 2015, set out as follows;
“Dear Kumud,
I would like to inform you that we are no longer require your employment with Royal Taj effective from 5th October 2015 based on the grounds mentioned below,
-Turning up to work late on a few occasion without informing the person in charge
-Too many mistakes made on a job and complaints made by customers which is affecting our business
-Being unavailable on the days we require you (Saturday)
Based on the contract signed by you we are entitled to cease your employment based on the above mentioned grounds.
Regards,
Harish Arora
Owner” 1
[3] On 6 October 2015, Mr Kumar responded via email as follows;
“HI
I inform you i have not termnated to my job. its good for you talk with me if not then i will take legal advice call me discuss about this matter.
thanks
kumud” 2
[4] While this appears to have resolved their initial differences, and Mr Kumar returned to work for Royal Taj, the working relationship quickly deteriorated to the point of Mr Kumar’s ultimate dismissal. The file contains numerous allegations made by both parties pertaining to their working relationship, to their respective adherence with the visa arrangements, and even so far as allegations of exploitation and extortion. These matters are beyond the scope of this decision, and indeed the jurisdiction of this Commission.
[5] The parties provide conflicting dates upon which Mr Kumar was notified that his employment had been terminated and when the termination took effect. Mr Kumar’s material indicates that he was notified of his dismissal on 14 March 2016, with it taking effect on 17 March 2016. However, it also provides that he received a written warning on this same latter date. The Respondent puts forward that Mr Kumar was notified of its intention to terminate his employment on 17 March 2016, with the dismissal taking effect on 25 March 2016, after Mr Kumar failed to respond to its written warning.
[6] The documentary material before the Commission is basic, although it includes the following email from Mr Harish Arora, Managing Director of Royal Taj, to Mr Kumar on 17 March 2016 at 9:57 PM;
“Dear Kumud,
This is our final written warning after speaking to you on numerous times on the phone last month. You didn’t show up to work from 1st February 2016, you told me that you have some personal problems and you needed 2 weeks off and then requested a further two weeks off and agreed to start work from 1st march.
I called you many times on that day as I was expecting you to start work you didn’t answer my calls or turn up to work. From the date of this email I am going to give you one week to think about whether you still want a position with us and if you decide not to or we do not hear back from you by next Friday 25th March 2016 your contract will be terminated and offered to somebody else.
I look forward to your response.
Regards
Harish Arora” 3
[7] The material before the Commission suggests that this correspondence was not contested by the Applicant, other than a brief email from Mr Kumar to “put just six weeks wages in my account”. I therefore find that Mr Kumar’s termination of employment was effected on 25 March 2016.
[8] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
[9] As a result of my findings that the dismissal took effect on 25 March 2016, it is necessary for me consider whether I should grant Mr Kumar an extension of time for the making of his general protections application alleging contraventions involving dismissal. This question arises because such an application would need to have been made to the Fair Work Commission no later than 15 April 2016 in order for it to be within the 21 day period allowed for in s.366(1) of the Act. As the application was actually made on 28 April 2016, Mr Kumar’s application has been made some 13 days outside of the time period allowed for within the Act.
[10] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Mr Kumar, the Applicant, and the evidence and submissions of Mr Arora on behalf of Royal Taj.
[11] Mr Kumar submits the following as reasons for the delayed lodgement of his application;
- That he was unaware of the avenues available to him in exercising his rights, and “because I do not have knowledge about laws” 4;
- That he was absent from the workplace and experiencing unspecified personal issues in the days leading to his termination, describing his state as a “big depression” 5; and
- That he had lodged an unspecified application with the Fair Work Ombudsman, and that a staff member of that organization had “given me your address and map that’s why I was late” 6.
[12] In giving evidence, Mr Kumar also relied upon advice given to him by a migration agent that, because of his circumstances, he should seek assistance from the Fair Work Ombudsman (FWO). Mr Kumar is imprecise about when he received that advice; however it appears that the advice was received by him close to the time he went to the FWO. When he saw the FWO, they suggested he also make an application to the Commission, which he did within a short time after the suggestion was made. Mr Kumar’s evidence is that he saw the FWO in Brisbane on 26 April 2016, and that his general protections application was lodged on 28 April 2016.
[13] Mr Kumar also puts forward that his employment with Royal Taj was subject to considerable coercion, including with him being demanded on more than one occasion, and in particular the night before his dismissal, to pay a large amount of money to Royal Taj in order to keep his employment.
[14] Royal Taj denies claims of coercion and objects to the application continuing given that it was commenced after the statutory period for the making of such an application, and that the reasons for the delay in lodging the application put forth by Mr Kumar are insufficient. The Respondent takes particular exception to Mr Kumar’s unfamiliarity with his workplace rights, suggesting that Mr Kumar had boasted to staff that he had had previously exercised his rights against previous employers. Royal Taj also put forward that Mr Kumar’s motivation for making his application is that he was seen by owners of the restaurant working at a fast food chain on 22 April 2016. They argue that Mr Kumar’s claims in this application and his claims of coercion are recent inventions designed to take attention away from the fact that Mr Kumar had, in their view, been found by them working in a job not authorised by his visa and that he likely expected them to consequently report him to the immigration authorities.
Legislative scheme
[15] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act;
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[16] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;
“[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”. 7
Consideration
[17] I turn to consider each of the criteria set out in s.366(2) of the Act.
The reason for the delay
[18] It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 8 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.9 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.10
[19] The reason put forward by Mr Kumar for the delay in making his application is that he knew little about his rights and that it was not until quite close to the time that he approached the FWO that he learned from his migration agent that he had rights he could exercise. Consideration of that reason as being one in his favour is likely assisted by his status as a migrant and some relative language difficulties. While not requiring an interpreter for these proceedings, his use of English is basic nonetheless.
[20] The reason Mr Kumar puts forward for needing to seek the assistance of the FWO is the coercion he says he had experienced, together with having a deduction made for leave that was never given. The allegation of coercion is set out within Mr Kumar’s application, in which he says that he was told by Mr Arora, one of the proprietors of the Respondent, on 14 March 2016 that “if you do not have money do not come in my restaurant”. The claim relating to incorrectly deducted leave is that he was sent on 2 weeks “fake holidays” before the termination itself occurred.
[21] The allegation of coercion is obviously serious, and especially if it relates to conduct that occurred throughout the period of employment, as Mr Kumar says it did. However, against that is the fact that Mr Kumar appears not to have assiduously sought out help on the subject immediately upon being dismissed. While he sought advice from his migration agent, which is a reasonable enough place for a migrant worker to start their process of seeking employment help, the fact that the advice appears to not have been received until well after the 21 day period had expired, and that it was directed at assistance from the FWO militates against the seeking of the advice as being an exceptional factor justifying an extension of time for the making of an application. I also take into account that the advice has not been provided to me.
[22] The question in this matter is whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application. Given that termination of employment occurred on 25 March 2016, that period expired on 15 April 2016.
[23] The fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional.
[24] As a result, I am unpersuaded that Mr Kumar has established that there is an acceptable reason for his late application. Consideration of this criterion therefore resolves against an extension of time being granted to him.
Any action taken by the person to dispute the dismissal
[25] Mr Kumar’s evidence about the actions taken by him to dispute his termination of employment is that it consists of making an approach to the FWO and the making of this application.
[26] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.
Prejudice to the employer (including prejudice caused by the delay)
[27] The delay in the filing of the application is 13 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.
[28] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that further proceedings are not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.11
[29] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.
The merits of the application
[30] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.
[31] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.12
[32] The merits of the application to which Mr Kumar refers are that he was dismissed for reason of refusing to accede to coercive demands.
[33] In the circumstances, which consist only of Mr Kumar’s verbal allegations, I am not fully in a position to evaluate to any degree the merits of Mr Kumar’s application, and whether they disclose reasonable prospects of success. My consideration of this factor is therefore a neutral one.
Fairness as between the person and other persons in a like position
[34] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past. 13 On balance, I consider this to be a neutral consideration in Mr Kumar’s case.
[35] For these reasons, and mainly because I am not satisfied an acceptable reason has been put forward by Mr Kumar for the delay in making his application, I decline to grant an extension of time pursuant to s.366 of the Fair Work Act and will issue an order dismissing his application as being out of time.
COMMISSIONER
Appearances:
Mr K Kumar on his own behalf.
Mr H Arora for the Respondent.
Hearing details:
2016.
Melbourne (by telephone):
27 May.
1 Form F8A Response to General Protections Application, Attachment 5.
2 Ibid Attachment 3.
3 Ibid Attachment 2.
4 Form F8 General Protections Application, item 1.4.
5 Exhibit A1, item 1D.
6 Ibid.
7 Nulty v Blue Star Group, 2011, 203 IR 1 at [13].
8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
9 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.
10 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
11 Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].
12 Haining v Deputy President Drake (1998) 87 FCR 248, 250.
13 Wilson v Woolworths [2010] FWA 2480 [24]‒[29].
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