Mang Lian Chawn Thlaceu v Roger Weeks T/A SBS Group Au Pty Ltd

[2020] FWC 6790

[2020] FWC 6790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mang Lian Chawn Thlaceu
v
Roger Weeks T/A SBS Group Au Pty Ltd
(U2020/14957)

COMMISSIONER YILMAZ MELBOURNE, 16 DECEMBER 2020

Application for an unfair dismissal remedy – application lodged out of time – exceptional circumstances- application dismissed.

Introduction and background

[1] This decision concerns a jurisdictional objection raised by Roger Weeks T/A SBS Group Au Pty Ltd (SBS) to an application by Mr Mang Lian Chawn Thlaceu for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Thlaceu was employed by SBS as a casual assembly worker on the afternoon shift from either 17 or 20 February 2020 until his dismissal on 26 October 2020. Mr Thlaceu submits he commenced on 17 February and SBS submit he commenced on 20 February 2020. Mr Thlaceu claims that his dismissal was unfair.

[3] SBS raises the jurisdictional point that the application is lodged more than 21 days after the dismissal took effect.

[4] The application was filed on 18 November 2020, 2 days late.

[5] Both parties were self-represented and Mr Thlaceu was provided with a Hahka Chin interpreter.

The Applicant’s submissions

[6] Mr Thlaceu was dismissed on 26 October 2020 in a face to face meeting by the general manager; he submits that he was informed that because staff on the afternoon shift on 22 October 2020 drank alcohol, the afternoon shift had been cancelled.

[7] Specifically, he submits:

“My colleagues who also worked at the afternoon shift with me were caught drinking alcohol during the break time on 23rd of October 2020. The colleagues who were part of the group drinking alcohol were sent home immediately as they were no longer fitted to continue working. Because of this incident, I was not allowed to continue working alone. The company told me to stop working that afternoon shift and sent me home as well.” 1

[8] He submits that his employment was terminated after he was informed that he was eligible to apply for a permanent position and was asked to complete and submit the form if he was interested. He submits that his eligibility to apply for a permanent position could have also been a “concern for the employer”. 2

[9] He submits that some staff from the afternoon shift remain employed and have been working the day shift, while he was dismissed.

[10] He submits that his dismissal was unfair because he was not drinking alcohol and has not been offered any further work. He submits that he suspects that he was not offered further work because of his age. 3

[11] Mr Thlaceu submitted two witness statements from co-workers that shared their opinions and did not provide any valid witness evidence in relation to the termination or the extension of time application. Another Chin community leader provided an opinion rather than witness evidence. However, one witness Ram Siakhel, a community service worker, stated that on 18/11/2020 the Applicant approached him for help to complete the unfair dismissal form. The community worker at Ringwood was not available due to the stage 4 COVID-19 lockdown. While assisting the Applicant, Mr Siakhel informed him that submission of the form was two days late.

The Respondent’s submissions

[12] Four of the five members on the afternoon shift breached the company drug and alcohol policy by consuming alcohol during operating hours. The Applicant was not one of the five. The afternoon shift was not able to operate with one employee due to health and safety reasons, therefore the afternoon shift was shut down. 4

[13] On Monday 26 October 2020, the general manager met with employees that could attend and informed them of the reasons for the shutdown of the afternoon shift. 5

[14] SBS confirm that on the morning of 22 October 2020, the Applicant was provided with a proposal for full time work on the afternoon shift but was not executed due to the events of the same afternoon. 6

[15] SBS submit they took calls from and met with the Applicant’s community service worker and discussed the events of 22 October 2020, the physical aspects of the work and challenges associated with language barriers to ensure the safety and wellbeing of workers, the negative impacts of cancelling the afternoon shift and their investment into new machinery which will provide further employment opportunities. 7

[16] SBS deny allegations that the Applicant’s age was a consideration in his termination of employment. 8 Mr Grimshaw stated that during discussions with the community worker, it was suggested that other workers could be referred when the new technology was operational. Mr Grimshaw stated that referral of younger and fitter workers was discussed due to the physical aspects of the work, but denies the comments were directed at the Applicant.9

[17] SBS in their submission notes that the Applicant first alleged in his application that he was dismissed for drinking alcohol, then alleges he was discriminated on the basis of age, and then submitted that SBS condones drinking in the workplace by not reprimanding those employees caught drinking. SBS strongly refutes all those allegations and finds them offensive. SBS provided evidence of disciplinary action taken against two employees that had been caught drinking while at work, confirmed that Mr Thlaceu was one of three that could not be retained due to the shift closure, provided a copy of its drug and alcohol policy and the employment separation certificate provided to Mr Thlaceu in response to the request from the community worker in Ringwood. 10

Consideration

[18] On 11 December 2020, I convened a hearing to determine whether to allow an extension of time for the lodgement of the application for unfair dismissal.

[19] It was not contested that the Applicant was dismissed from his employment on 26 October 2020.

[20] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3).

[21] However, s.394(3) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Whether the first person became aware of the dismissal after it had taken effect; and

(c) Steps taken to dispute the termination; and

(d) Prejudice to the employer; and

(e) Merits of the application; and

(f) Fairness between the person and other persons in a similar position

[22] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 11 (Nulty) where it was held that:

“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 regular occurrence, even though it can be a on 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.” 12

[23] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.394(3).

The reason for the delay

[24] Mr Thlaceu argues the reasons for the delay are:

•  He was unaware of the 21-day statutory time limit;

•  He has limited English, is a refugee and was unaware of the requirement to submit the application within 21 days; and

•  A community service worker at Ringwood was not available due to the COVID-19 lockdown.

[25] Mr Thlaceu relies of the argument of ignorance for the reasons for delay, however, ignorance is not an exceptional circumstance. 13

[26] Further Mr Thlaceu relies on the reason that COVID-19 prevented assistance from the community worker at Ringwood, however, he provides no evidence or any further detail to support the reason given.

[27] However, attached to the evidence submitted by SBS, email correspondence from Mr Thong Za Tawng, Chin Community Leader dated 30 October 2020, confirms that he had met with SBS on 29 October 2020 and had also spoken to the Applicant regarding the reasons for the termination of employment. Mr Tawng further requests on behalf of the Applicant, an employment separation certificate. SBS attached to their materials the employment separation certificate sent via email to Mr Tawng dated 5 November 2020. Mr Tawng replied the same day thanking the Finance manager for sending through the employment separation certificate. I note that Mr Tawng works out of the Ringwood community centre.

[28] Mr Tawng’s email of 30 October 2020 to SBS concludes with the following:

“And if anyone from Chin background at your company needs work related help at your company for language barrier, I can be contacted at any time.

I can be of your contact person if you want to recruit more employees from Chin community as I know many good people in the community.

You can send me here the letter Mr. Mang has requested.”

[29] The email correspondence shows there was no difficulty with communication with the Ringwood community centre from at least 29 October to 5 November 2020. Mr Thlaceu provided no evidence of any difficulty in support of his statement that he was incapable of completing his unfair dismissal application on time.

[30] Neither individually or collectively, the reasons provided by Mr Thlaceu cannot be considered exceptional for his failure to file his application within the 21-day period nor explained the subsequent two days.

[31] Having considered the evidence before me I am not satisfied that Mr Thlaceu has made out acceptable explanations for the delay in lodging his application to justify an extension of time.

[32] The reasons provided by Mr Thlaceu do not weigh in his favour.

[33] Nevertheless, all factors in s.394 must be taken into account in determining whether there are exceptional circumstances.

Whether the person first became aware of the dismissal after it has taken effect

[34] Mr Thlaceu was aware of his dismissal when it took effect. The termination of employment was further confirmed in writing.

Action taken to dispute the dismissal

[35] Mr Thlaceu understood why he was sent home on 22 October 2020, and he confirms his daughter’s text on his behalf was responded to by SBS explaining what had occurred. Mr Thlaceu understood the purpose of the meeting on 26 October 2020 was to explain the impact of the event on the afternoon shift. SBS reported that due to safety concerns it could not operate the afternoon shift with one employee, therefore had to cease the afternoon shift.

[36] Other than the communication on 22 and 26 October 2020, Mr Thlaceu did not take steps to dispute the dismissal. Even these discussions were not described as action taken to dispute, but rather action to clarify the reasons for the decision take by SBS in cancelling the afternoon shift. However, Mr Thlaceu submits he did not get a reason why he was not offered day shifts so he asked a community worker to make contact. This action was not described as disputation of the dismissal, but was a matter of fact.

[37] Mr Thlaceu was understandably disappointed in the termination of his employment, particularly because there had been an offer to consider full time work, which Mr Thlaceu did not execute. However, this consideration is any action taken to dispute the termination of employment, and for that reason this consideration is not in his favour.

Prejudice to the employer

[38] SBS do not state that the delay prejudices the employer. However, the mere absence of prejudice is insufficient to grant an extension of time. 14 In this matter, a short delay of two days in my view is a neutral consideration in an extension of time.

Merits of the application

[39] Mr Thlaceu submits the dismissal is unfair because:

“The employer told the community worker that I was no longer fit for the job due to my age but my age never had an impact on my performance.” 15

[40] The short witness statement of Mr Tawng is inconsistent with his email to SBS in October 2020, where it appeared that he and the Applicant understood the reasons for the termination of employment. There is no suggestion of allegations of age discrimination, yet the short witness statement and the merit reason offered by the Applicant allude to allegations of age discrimination.

[41] SBS strongly deny the allegation. Further, the Applicant submits employees that continue to work for SBS are older than him, and this was not contested by SBS.

[42] SBS submits that production had to be reduced to one single day shift. Of the 5 employees on the afternoon shift, two were retained and the same two received letters of warning. Three could not be retained, including Mr Thlaceu.

[43] SBS also submit that the discussion with the community worker about plans once new machinery was ready to go concerned additional labour, the discussion did not concern the replacement of Mr Thlaceu.

[44] Mr Thlaceu was a casual employee and his employment ceased when the afternoon shift ceased.

[45] Nevertheless, the merits were not tested and remain contested.

[46] Consequently, this consideration is in my assessment is neutral.

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

[47] Mr Thlaceu submission does not support the contention that his dismissal was due to age discrimination, but he did contend during the hearing that while he was not drinking, among those employees that were drinking, some remain employed. Relevantly in his outline of submissions he submits:

“My dismissal is more unfair because there are other employees who are even older than me but are still working.

I was not involved in the group who were seen consuming alcohol at work but I was still affected by their actions and lost opportunity to get a permanent position and my employment.” 16

[48] SBS submit there was no unfairness between the Applicant and other employees. They provided evidence of disciplinary action taken against two employees caught drinking. They confirm that Mr Thlaceu was not disciplined, as he was not drinking in the workplace. SBS submitted it dealt with each employee in accordance with their industrial obligations.

[49] No other submissions were tendered in relation to this consideration. I find that while I accept the letters of warning, no other detail was presented concerning the circumstances of those employees that were disciplined but not terminated. Therefore, I find this consideration to be a neutral factor.

Conclusion

[50] In consideration of the time limit of 21 days as prescribed by the Act, the limit is applicable and should be complied with, except where there are exceptional circumstances warranting an extension of time.

[51] In this instance I need to be satisfied that there are exceptional circumstances to warrant a further period pursuant to s.394(3). To extend the statutory time frame is a strict test and rests on the circumstances of the case.

[52] In this case, the reasons cited by Mr Thlaceu are not uncommon, unusual or extraordinary. Mr Thlaceu provided reasons, but no evidence or compelling material to justify an extension of time. I have noted the inconsistent submissions by Mr Thlaceu regarding merit and the reasons for the delay.

[53] Having considered the evidence and submissions against each of the considerations in s.394(3), I am satisfied that on balance there are no exceptional circumstances for the extension of time to file the application for an unfair dismissal remedy.

[54] Accordingly, the matter is dismissed and an order to this effect is issued separately.

COMMISSIONER

Appearances:

Mr M. Thlaceu for himself

Mr R. Weeks and Mr N. Grimshaw for the Respondent

Hearing details:

2020
Melbourne (by Telephone)
11 December

Printed by authority of the Commonwealth Government Printer

<PR725494>

 1   Applicant’s Form F2 at Q3.1.

 2   Ibid at Q3.2.

 3   Ibid at Q3.2.

 4   Statement of evidence of Nigel Grimshaw, general manager.

 5   Respondent’s form F3 at Q3.1 and Statement of evidence of Nigel Grimshaw, general manager.

 6   Respondent’s outline of submissions and attachment letter of 22 October 2020.

 7   Ibid at Q3.2.

 8   Statement of evidence of Roger Weeks, Director and statement of evidence of Nigel Grimshaw, general manager.

 9   Statement of evidence of Nigel Grimshaw, general manager.

 10   Attachments to the Respondent’s outline of submissions and statements of evidence by Messrs Grimshaw and Weeks.

 11   [2011] FWAFB 975.

 12 Ibid at [13].

 13   Nulty v Blue Star Group Pty Ltd, [2011] FWAFB 975.

 14   Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300.

 15   Applicant’s outline of submission at Q7.

 16   Ibid at Q8.