Leonardo Rodrigues v The Trustee for the NEMCO Aboriginal Charitable Trust T/A Yungngora Store

[2018] FWC 446

[2018] FWC 446

FAIR WORK COMMISSION

DECISION

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

Leonardo Rodrigues
v
The Trustee for THE NEMCO ABORIGINAL CHARITABLE TRUST T/A Yungngora Store
(U2017/12109)

COMMISSIONER WILSON MELBOURNE, 23 JANUARY 2018

Application for an unfair dismissal remedy; application for extension of time for lodgement.

[1] This matter concerns an application made by Leonardo Rodrigues alleging unfair dismissal against his former employer, The Trustee for The NEMCO Aboriginal Charitable Trust T/A Yungngora Store (NEMCO). Mr Rodrigues’ dismissal took effect on Friday, 31 March 2017 and his unfair dismissal application was received in the Fair Work Commission on Tuesday, 14 November 2017.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that Mr Rodrigues’ application was made outside of the statutory time limit, with it having been made 207 days after the expiry of the 21 day time period allowed for by the Act.

[3] NEMCO object to the Commission granting an extension of time for the making of Mr Rodrigues’ application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the evidence and submissions of Mr Rodrigues and his solicitor, Graham Carmody of Su and Co, and the submissions made on behalf of the Respondent as well as the statutory declaration of Russell Mulligan, the Respondent’s chairman. In the hearing I conducted for this matter, Mr Carmody appeared on behalf of Mr Rodrigues and NEMCO was represented by Warren Bretag, the chief operating officer of Outback Stores, a Commonwealth Government entity which now provides store management services to the community in accordance with a contract. Mr Carmody was granted permission by me to represent his client pursuant to the provisions of s.596(2)(a) of the Act (relating to the efficiency that may be brought to the matter, taking into account its complexity).

[6] The Yungngora Store is located on Noonkanbah Station in the Fitzroy Crossing region of Western Australia, about three hours by car from Broome. The submissions made in this matter include that the Yungngora Association Incorporation (YAI) is the sole shareholder of The NEMCO Charitable Trust, which in turn is the proprietor of the Yungngora Store and, until the date of his dismissal, Mr Rodrigues’ employer.

BACKGROUND

[7] Mr Rodrigues commenced employment with NEMCO, on 20 August 2015, in the capacity of store manager of its Yungngora Store. The terms of his employment included the payment of a salary of $75,000 per year; the provision of a motor vehicle; an entitlement to airfares to a particular value after completion of a three-year contract; and the provision of a three bedroom fully furnished house whilst employed. Mr Rodrigues’ employment continued until he was summarily dismissed on 31 March 2017.

[8] The evidence discloses that he was dismissed by being handed a termination letter on that day by Stephen White, NEMCO’s CEO, Mr Mulligan and Francine Cox, a NEMCO director. The correspondence discloses concerns on the part of NEMCO, which had arisen in the course of March 2017 regarding several food products being significantly out of date, which then allegedly led to directions being given by NEMCO to Mr Rodrigues which were then allegedly not followed by him. Mr Rodrigues’ evidence is that he was in shock and disbelief; that he was bemused and bewildered. 3 He also put forward that he had no chance to respond to the allegations in the letter and that his young family, which included three very young children, including prematurely delivered twins, was taken by vehicle from the community to Broome, and then given one night’s accommodation and nothing further.4

[9] Having been dismissed on Friday, 31 March 2017, Mr Rodrigues returned to the community on 4 April 2017 and attended a community meeting which discussed his termination of employment. Mr Rodrigues’ evidence is that the community held a vote which was in favour of reinstating him as the manager of the store. Mr Rodrigues gave evidence that the CEO, Mr White, claimed the meeting was not minuted and so therefore what it purported to do was not valid.

[10] Another community meeting took place at the Noonkanbah Station on 11 April 2017 which Mr Rodrigues also says passed a motion in favour of his reinstatement, with him saying further that Mr White again refused to accept the outcome of the vote. Mr Rodrigues also gives evidence that he was told by the community that it may affect his reinstatement potential if he were to lodge a Fair Work Commission application, so he held off from doing so in order to see if he got reinstated.

[11] Having been dismissed in March and his dismissal then having been the subject of community meetings in April, Mr Rodrigues approached solicitors, Su and Co, on or around 25 August 2017. He came to do this after his communications with the community did not bring the desired results. In mid-2017 he relocated his family from Broome to Perth and around the same time formed the view that he should pursue more formal action against his former employer. Mr Rodrigues’ evidence is that until he approached lawyers for assistance in August 2017 he was not aware that the Act provided a time-limit for the making of unfair dismissal applications.

[12] Mr Rodrigues’ solicitors attempted communication with the YAI on 29 August 2017, 11 September 2017 and 28 September 2017. 5 Each of the correspondences asserted Mr Rodrigues had been unlawfully terminated and demanded his reinstatement or payment of “$200,000 for compensation, loss and damages for the unlawful dismissal” and finally threatened that in the absence of settlement on one of those terms that legal action would be commenced against the Association by Mr Rodrigues.6 None of the letters of demand were responded to. On 14 and 15 November 2017 Mr Carmody endeavoured to speak to someone at YAI about his client’s interests. While messages were taken and undertaken to be passed on to the CEO, Mr Carmody did not receive a call back or response.

[13] Mr Rodrigues’ unfair dismissal application form was received by the Commission on Tuesday, 14 November 2017.

[14] With his dismissal having taken effect on Friday, 31 March 2017, the last day for lodgement of an unfair dismissal application in order for it to be within the time period allowed for in s.394(2) was Friday, 21 April 2017. Given that the application was actually made on 14 November 2017 it is 207 days out of time.

[15] For the purposes of s.396 of the Act, Mr Rodrigues is otherwise a person protected from unfair dismissal and no question of his dismissal being a genuine redundancy arises. For the reason that the Respondent identified that it had only five employees at the time of Mr Rodrigues’ dismissal, the question of whether or not Mr Rodrigues’ dismissal was consistent with the Small Business Fair Dismissal Code may be a relevant matter for the Commission to determine in the event that an extension of time for the filing is given.

LEGISLATION

[16] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act;

394 Application for unfair dismissal remedy

(1) ….

(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.”

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[17] 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 six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”;

“[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

[18] In considering whether an extension of time should be granted to Mr Rodrigues, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[19] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for 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

[20] The “delay” to be considered in this case is the period it took after the prescribed period for Mr Rodrigues to lodge his application. As previously referred to, that was a period of 207 days. I find that Mr Rodrigues’ explanation about the combined effects of the shock and distress of his dismissal, as well as his reference to awaiting the outcome of the community’s consideration of his request for reinstatement as being his explanation for the delay in making an application to the Commission.

[21] In total effect Mr Rodrigues puts forward that the sudden nature of his dismissal, coupled with what he then did, lead to the delay in making his application. However, such distresses as may have occurred as a result of the dismissal were not so debilitating as to prevent Mr Rodrigues from making the long journey from Broome to Noonkanbah on at least two occasions within three weeks of having been dismissed. The question needs to be asked that if he was able to undertake that activity then why was it that he was unable to consider ascertaining his rights or, once those rights were known and which would have inevitably included advice about the statutory time limit, to do something about them by making an unfair dismissal application within time.

[22] Mr Rodrigues also puts forward the impact of the dismissal upon his young family, and in the course of submissions related how one of the effects of the dismissal was that he faced uncertainty about where he and his family could stay, having been removed from the house they had lived in at Noonkanbah Station.

[23] He also puts forward that he was expecting at some point that the community would action what he believed to be a commitment to reinstate him and that he would soon return to his former employment. However, when considering the two community meetings which took place, that would appear to be a faint if not forlorn hope, and probably with that view reasonably being able to be formed close to the second of the two community meetings on 11 April 2017. The first meeting took place on 4 April 2017, after which the resolution which had been passed was refused by the NEMCO CEO. The second meeting took place on 11 April 2017 and there is no cogent evidence before the Commission which would lead to the view that the result was likely be any different, whether by the conclusion of the 21 day statutory filing limit, being 21 April 2017, or proximate to that date.

[24] I have also taken into account that Mr Rodrigues appears not to have any understanding that there may have been a time limit for the making of such applications until he consulted lawyers on 25 August 2017, almost 5 months after the date that he was dismissed. In this regard it must be noted that the Commission has held on many occasions that mere ignorance of the statutory time limit is not an exceptional circumstance. 11

[25] Overall I consider that the Applicant has not put forward an acceptable reason for the delay in making his unfair dismissal application. The factors of shock and distress, while no doubt real, do not amount to a credible reason for the whole period of delay. Those factors associated with the desire to work through cooperative measures on the part of the community, while laudable to an extent, also do not provide a credible reason for the whole period of delay; by at least the end of April it would have been abundantly clear that nothing positive was about to occur as a result of his representations.

[26] Accordingly, this criterion resolves in the Respondent’s favour in my consideration of whether an extension of time for filing should be granted.

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

[27] On the basis of the evidence before me, I am satisfied that Mr Rodrigues first became aware of the termination of his employment on 31 March 2017. This is therefore not a circumstance where the Applicant only became aware of his termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[28] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 12

[29] Mr Rodrigues relies upon the steps taken by him through the two community meetings and later his solicitors as being evidence that he took action to dispute his dismissal.

[30] The first of the community meetings took place on Tuesday, 4 April 2017, within a week of the date that he had been dismissed. Mr Rodrigues gave evidence that at that meeting his termination of employment was discussed by the community, with those present taking the view that they were in favour of his reinstatement. His evidence was also that the organisation’s Chief Executive Officer, Mr White, refused to observe the resolution which had been passed for the reason that the meeting was not minuted, with it therefore potentially not being a valid resolution.

[31] The second of the meetings within the community took place on 11 April 2017. It is Mr Rodrigues’ evidence that this meeting again considered Mr Rodrigues’ dismissal and again took a vote in favour of reinstating him to the position of manager of the store, with the chief executive officer again declining to accept the outcome of the vote.

[32] Credit can be given to Mr Rodrigues for having disputed his dismissal through these two meetings which are quite proximate to his dismissal.

[33] The first of the meetings took place on a Tuesday, being only a few days after his dismissal which had taken place on the prior Friday. In this regard it needs to be borne in mind the extremely large distances to be covered in remote communities such as the ones that are the subject of this decision. Mr Rodrigues had been working in Noonkanbah and when dismissed was removed to Broome, a distance of around 400 kilometres, and then had freely returned by at least the following Tuesday for the purpose of the meeting. This first meeting may therefore be viewed as an endeavour by Mr Rodrigues to actively dispute and overturn the decision to dismiss him from employment.

[34] The second of the meetings took place on Tuesday, 11 April 2017, which was just under a week and a half prior to the expiry of the statutory time limit for the making of an unfair dismissal application, and which again may be viewed as an endeavour by Mr Rodrigues to actively dispute and overturn his dismissal. Despite that situation, and notwithstanding that Mr Rodrigues’ evidence is that he was told by the community that Fair Work Commission application may affect his reinstatement, there is no adequate explanation given by Mr Rodrigues as to why he then did not consult solicitors on the subject until 25 August 2017, more than four months after the second of the community meetings and just under five months after his dismissal.

[35] In my view the delay in seeking legal advice for the purpose of pursuing the overturning of his dismissal neutralises the credit that would otherwise be given to Mr Rodrigues for having actively challenged the dismissal through the two community meetings.

[36] As a result, overall, my consideration of this criterion does not resolve in Mr Rodrigues’ favour.

4. Prejudice to the employer (including prejudice caused by the delay)

[37] The delay in the filing of the application is 207 days. The Respondent has not directly put forward that it would be prejudiced by allowing an extension of time for the making Mr Rodrigues’ application.

[38] 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 a full merits proceeding is 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 an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a 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. 13

[39] 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.

5. The merits of the application

[40] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[41] 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. In Kyvelos v Champion Socks Pty Limited, decided under earlier legislation, the Full Bench articulated why such position is adopted;

“[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.” 14

[42] Instead of a detailed consideration of the merits of a matter, 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. 15

[43] The merits of the application to which Mr Rodrigues refers are that he was unfairly treated through the decision of NEMCO to summarily dismiss him in March 2017 for matters that had not been put to him either for correction or for response. Notwithstanding that position on the part of the Applicant, the Respondent’s case in outline is noted which includes that the matters it dismissed Mr Rodrigues over had been raised on numerous occasions before his dismissal, with Mr Rodrigues making no effort to address those matters.

[44] There is insufficient material presently before the Commission to draw any conclusions about the prospects of success of these arguments. It is therefore a neutral factor in my consideration of the matter of an extension of time.

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

[45] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 16 In general compass, it would be difficult to see in the circumstances presently before the Commission fairness to other applicants who are held to the 21 day time limit to grant an extension of time to Mr Rodrigues. In relation to the question of fairness as between applications arising out of the same employer, there is no other person presently before the Commission dismissed by the same employer for the same underlying issue.17

[46] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Rodrigues.

[47] An Order dismissing Mr Rodrigues’ application for unfair dismissal remedy is issued in conjunction with this Decision.

COMMISSIONER

Appearances:

Mr G Carmody, solicitor, for the Applicant.

Mr W Bretag on behalf of the Respondent.

Hearing details:

2018.

Melbourne (by telephone):

19 January.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 3 Witness Statement of Leonardo Rodrigues [7].

 4 Ibid [8].

 5   Applicant’s Outline of Submissions [XI].

 6   Witness Statement of Graeme Carmody, Attachment GC1.

 7   Nulty v Blue Star Group, 2011, 203 IR 1 [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   Nulty v Blue Star Group, 2011, 203 IR 1 [14].

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 299-300.

 13   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].

 14 (2000) Print T2421 [14].

 15   Haining v Deputy President Drake (1998) 87 FCR 248 250.

 16   Wilson v Woolworths [2010] FWA 2480 [24]‒[29]

 17   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 [38].

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