Makot Wol v Multicultural Community Services Geelong Inc

[2023] FWC 2078

[2023] FWC 2078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Makot Wol
v

Multicultural Community Services Geelong Inc

(C2023/3801)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 22 AUGUST 2023

Application to deal with contraventions involving dismissal – application filed outside 21-day period - exceptional circumstances not found – application dismissed.

Introduction

1. Mr Wol has made an application to the Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with contraventions involving dismissal. He contends that he was dismissed by the Respondent in contravention of sections 340 and 351 of the Act.

1. Section 366 of the Act states that an application under section 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

1. Mr Wol’s application was made on 28 June 2023 and his application form states that his dismissal took effect on 31 May 2023. The period of 21 days ended at midnight on 21 June 2023. The application was filed seven days outside the 21-day period.

1. This decision deals with the question of whether exceptional circumstances exist warranting an additional period of time to make the application.

1. The issue was dealt with at a hearing on 18 August 2023, at which the Applicant gave evidence in support of his application.

Factual context

1. The Applicant was dismissed on 31 May 2023.

1. The Applicant submits that he went online and searched “unfair dismissal” and the first search result was “Employee Dismissals”. The Applicant contacted the company and provided requested documents, including his letter of termination and a payslip. He was then telephoned and asked to confirm his name and details and was told that they would “send me the quote”. The Applicant then received an email from them on 5 June 2023.[1]

1. The email stated that “we have completed our complimentary assessment of your case. In the course of doing so, we have undertaken a detailed consideration of the documentation and information provided to us.” The correspondence went on to advise that if the Applicant wished to proceed with their engagement, the fee would be $4,990 plus GST, subject to the ‘No Win No Fee Guarantee’ detailed in the terms of engagement. It said “[b]ecause the law imposes strict time limits on dismissal-related claims” the signed copy of the terms of engagement had to be received on 6 June 2023.  It went on to say “[i]f you wish to instruct Employee Dismissals to lodge a claim against your former employer challenging the termination of your employment, please let me know via reply email” and a copy of the terms of engagement would be provided for review and approval.  The letter reiterates that “[t]he deadline for bringing claims is strictly applied, so please come back to me as soon as possible in order that we will have adequate time to lodge an in-time application challenging your dismissal.”

1. The email did not refer in terms to either an unfair dismissal application or a general protections involving dismissal application would be involved.

1. The Applicant did not engage Employee Dismissals to represent him. After doing some research in the week beginning 6 June 2023, the Applicant concluded that the business was a scam. The Applicant did not consider getting alternative representation at that time, as he lacked the financial means to do so.

1. On 13 June 2023, he made an unfair dismissal application. He came across the form by visiting the Commission’s website and accessing various information. He prepared the application form himself with the assistance of a support person, as he was struggling mentally at the time.

1. The Applicant had also made a complaint to the Victorian Equal Opportunity and Human Right Commission. When the Respondent declined to participate in conciliation of that complaint, he was advised on 28 April 2023 that the complaint was closed, and he would need to make an application to the Victorian Civil and Administrative Tribunal to take the matter any further. The Applicant was planning on doing so. He did not appreciate that the Fair Work Commission had jurisdiction, through the general protections provisions in the Act, to also deal with the discrimination part of his concerns.

1. The Applicant did not give evidence as to when he learned this, or when he decided that a general protections application was more appropriate than an unfair dismissal application and/or VCAT claim.

1. On 28 June 2023, he discontinued the unfair dismissal application and made the general protections involving dismissal application. 

1. The Applicant provided evidence and submissions going to the personal challenges he had and was facing at the time, including his background as a child refugee from a war-torn country, significant financial stress and a precarious housing situation he faced, and acute and chronic mental health issues.

Extension of time

1. Additional time can be allowed under section 366(2) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[2]

1. The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[3]

1. In deciding whether I am satisfied that there are exceptional circumstances, I must consider and give appropriate weight to each of:

·   the reason for the delay;

·   any action taken by the person to dispute the dismissal;

·   prejudice to the employer (including prejudice caused by the delay);

·   the merits of the application; and

·   fairness as between the person and other persons in a similar position.

1. Exceptional circumstances may 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 can be considered exceptional.[4]

Relevant factors

1. The Applicant submits there are two main considerations that support a finding of exceptional circumstances: that the reason for delay involved representative error; and the significant action the Applicant took to dispute the dismissal.

Reason for delay: 

1. The Act does not specify what reason for delay might justify granting an extension 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 a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]

1. The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[6] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[7]

1. The Applicant’s principal contention to explain the delay is representative error by Employee Dismissals. The Applicant submits that Employee Dismissals should have explained to the Applicant that there were different options open to pursue, including an unfair dismissal and a general protections involving dismissal application. The failure to provide this explanation is said to constitute representative error by failing to give advice, and that if it had done so, the Applicant would have been aware of the option of making a general protections application and been able to make the application within time.

1. I do not agree. Firstly, the Applicant did not engage Employee Dismissals to represent him. The email of 5 June 2023 was an offer of representation which lapsed if the Applicant did not agree to and sign terms of engagement. Employee Dismissals was under no obligation to provide any advice to the Applicant unless and until he agreed to its terms of engagement. Counsel for the Applicant was unable to point to any authority for the proposition that representative error can apply where the representative has not been engaged. Any failure to provide advice cannot constitute representative error, at least in respect of industrial agents that are not legal practitioners. In respect of legal practitioners, there may be ethical and other considerations that impose greater obligations. Secondly, the content of the email was not incorrect in any respect. It neither directed nor advised the Applicant to pursue any particular action. It made clear that strict time-limits apply to dismissal-related claims. Further, the unfair dismissal application the Applicant made was not an invalid or inappropriate application to have made. The grounds upon which the dismissal was said to be unfair in the Form F2 are similar to the contents of the Form F8 general protections application made on 28 June 2023. This is not a situation where an original application is invalid having been mistakenly made in the wrong jurisdiction.

1. The Applicant also submits that he suffered from mental ill-health, particularly anxiety, which is said to take his situation beyond the level of stress and concern that is commonly experienced when someone loses their job. The Applicant, properly, stops short of a submission that the Applicant’s health rendered him incapable of making an application within time, but submits that it is a relevant factor to consider in the assessment of the reason for delay.

1. I accept that the Applicant’s mental health and the other personal considerations and stresses he was dealing with are relevant and had an impact on the timing of the application being made. At the same time, the Applicant was able to (with the assistance of a support person) locate information on the Commission’s website about how to challenge his dismissal and make an unfair dismissal application within 21-days of his dismissal taking effect.

1. In short, after his dismissal, the Applicant took steps to obtain advice, decided not to engage a representative, lodged a competent unfair dismissal application, and some time thereafter decided that a general protections application was a more appropriate or preferable application to make.  e then discontinued the unfair dismissal application and lodged the current application.

1. Taking into account all the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in making the application.  Ultimately, the reason for the delay is the Applicant’s ignorance of the legal framework and options available to him including that an alternative option to an unfair dismissal claim, being a general protections application, was available. As the Full Bench in Nulty said:

[I]n doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[8] (emphasis added)

1. The absence of an acceptable or reasonable explanation for the delay weighs heavily against a conclusion that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal:

1. The Applicant relies heavily on this consideration to support a finding of exceptional circumstances.

1. The Applicant took significant and prompt action to challenge his dismissal. He sought advice and representation within a week of his dismissal and lodged an unfair dismissal application on essentially the same grounds as the general protections application, within about 2 weeks of being dismissed. The Respondent was on notice, at least since 13 June 2023 when the unfair dismissal application was lodged, that the Applicant intended to challenge his dismissal. It was aware earlier, by reason of the VEOHRC complaint, that the Applicant had concerns he had been subject to unlawful discrimination.

1. This is a consideration that weighs in favour of a finding of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay):

1. There is no evidence of any particular prejudice to the Respondent, noting the relatively short period of delay. Both parties submitted that this should be treated as a neutral consideration. I agree and have done so.

Merits of the application:

1. The Applicant claims that he was dismissed because he exercised a workplace right to make a complaint and was discriminated against on the grounds of race. The Respondent wholly denies the allegations, and claims that the Applicant was dismissed following an external investigation into allegations of misconduct that were substantiated. 

1. The Applicant submits that this is a neutral consideration. The Respondent submits that it is a neutral consideration ‘at best’. I have treated it as a neutral consideration.

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

1. This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Mr Wol’s claim. However, cases will generally turn on their own facts.

1. The Respondent pointed to three cases that appeared to share some similarities with the Applicant’s circumstances:

·     McConnell v A & PM Fornatoro;[9]

·     Ferrus v Techforce Staffing Services Pty Ltd;[10] and

·     O’Neill v Southern Cross Care.[11]

1. In each of these cases, exceptional circumstances were not found to exist.

1. The Applicant disagreed that the circumstances in those cases were similar to the Applicant’s and submits that the decision in Gough v LifeAid Pty Ltd[12] was more apposite.

1. In Ferrus, the applicant’s explanation for late filing of a general protections application was that he had initially filed the ‘wrong’ application, being an unfair dismissal application. The Applicant sought to distinguish the decision in Ferrus on the basis that the application was decided on a different jurisdictional objection, namely that the applicant had not been dismissed. Whilst that is so, the Deputy President considered, in the alternative, whether exceptional circumstances existed and found that the personal challenges faced by the applicant and ignorance of the law did not constitute an acceptable reason for the 3-day delay.

1. The Applicant distinguished the decision in McConnell on the basis that a much longer delay, 83 days, was involved. I agree that that decision is not sufficiently similar to the present circumstances. The decision in O’Neill was distinguished on the basis that the applicant had not sought any legal advice, unlike Mr Wol.

1. However, I also do not consider the decision in Gough is similar and weighs in favour of a finding of exceptional circumstances. An important difference in that case is that the Deputy President found that a reason for the delay was that the applicant had acted on advice given by a public authority, which advice had been provided unreasonably late.

1. My overall consideration is that this is a neutral consideration.

Conclusion

1. In summary, other than the action taken by the Applicant to dispute the dismissal, none of the considerations I need to take into account weigh in favour of a finding of exceptional circumstances. The clear and prompt action taken by Mr Wol to dispute the dismissal does not outweigh the absence of acceptable reasons for the delay in making the application.

1. I am not satisfied that there are exceptional circumstances in this case.  As a result, no additional time can be allowed for Mr Wol to make his application. 

1. The application is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:
A. Jewell of Jewell Hancock Employment Lawyers, with permission on behalf of the Applicant.
A. Massaro of Russell Kennedy, with permission on behalf of the Respondent.

Hearing details:
2023
August 18
Video Hearing

[1] Digital Hearing Book, pg 43.

[2] Nulty v Blue Star Group (2011) 203 IR 1 at [13].

[3] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].

[4] Ibid.

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

[6] Long v Keolis Downer[2018] FWCFB 4109 at [40].

[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. See also Ferrus v Techforce Staffing Services Pty Ltd [2021] FWC 6007 at [51].

[9] [2011] FWAFB 466 (“McConnell”).

[10] [2021] FWC 6007 (“Ferrus”).

[11] (SA, NT & VIC) Inc[2021] FWC 6276 (“O’Neill”).

[12] [2010] FWA 2481 (“Gough”).

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