Mang Tial v Blurlato Pty Limited

[2021] FWC 6654

[2021] FWC 6654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mang Tial
v
Blurlato Pty Limited
(U2021/9846)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 22 DECEMBER 2021

Application for an unfair dismissal remedy – application made outside of the time prescribed - whether there are exceptional circumstances – whether discretion to extend should be exercised – extension of time refused – application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 20 December 2021. Ms Mang Tial was dismissed from her casual employment with Blurlato Pty Limited, which trades as ISS Facility Services (respondent), with effect from 30 March 2021.

[2] By letter dated 30 March 2021, the respondent advised Ms Tial that as she had not accepted any shifts since 15 May 2020 and had not otherwise contacted the Respondent to explain her absence, it regarded her as having abandoned her employment. It must be said that the notion that a casual employee has abandoned her employment is a curious proposition, since the very essence of casual employment is that the employee is under no obligation to accept shifts offered, and as the High Court recently confirmed in WorkPac Pty Ltd v Rossato & Ors 1, casual employment properly understood exists where the employer makes no firm advance commitment about the provision of work or ongoing employment. In those circumstances, it would be unusual for an employee to be said properly and as a matter of law to have abandoned employment if shifts offered were not accepted. The respondent has today properly conceded as much, and it also has properly conceded that the applicant had in fact explained why shifts, at least those immediately following 15 May 2020, were not accepted and thereafter, no shifts were offered because of the impact of COVID-19 government restrictions on the activities of the respondent, and the sensible decision made by the respondent to prioritise its permanent workforce for available shifts ahead of its casual workforce on its roster.

[3] On 2 November 2021, Ms Tial lodged an application (dated 29 October 2021) under s 394 of the Fair Work Act 2009 (Cth) (Act) seeking a remedy in connection with her dismissal, which she alleges was unfair. The application was lodged more than six months outside of the time prescribed by s 394(2) of the Act which requires unfair dismissal applications to be lodged within 21 days from the date on which the dismissal took effect, or within such further period as the Commission may allow. There is no dispute that the date of effect of the termination of the casual employment was 30 March 2021. Consequently, it is necessary to consider whether Ms Tial should be granted a further period within which to make her application.

[4] The Act gives the Commission a discretionary power to extend the period within which an unfair dismissal remedy application may be lodged, but the power is exercisable only if the Commission is first satisfied that there are exceptional circumstances, taking into account the various matters set out in s 394(3).

[5] Briefly, exceptional circumstances are circumstances that are out of the ordinary, or unusual, or special, or uncommon but need not be unique, or unprecedented, or even very rare. Exceptional circumstances might amount to a single event which is exceptional, or a combination of factors which individually are unexceptional but which, when combined, are such as to amount to or persuade the Commission that there are exceptional circumstances.

[6] The matters which the Commission must take into account in assessing whether there are exceptional circumstances are set out in s 394(3) as follows:

“(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.”

[7] Each of the matters needs to be taken into account, assessed, and appropriate weight must be given, having regard to the evidence about those matters.

[8] I will deal with each of the considerations, beginning with the reason for the delay. The reason for the delay is concerned with the period after the 21-day period has expired or elapsed. This should be self-evident since the first 21 days within which an application may be lodged constitute no delay at all. We are here concerned with the reason which might explain some or all of the period of the delay – a delay which, in a relative sense, was lengthy – of more than six months. I say relative as meaning relative to the three-week period that the applicant had to lodge her application following the dismissal.

[9] Ms Tial in writing, and orally today, gave several reasons for the delay, and I will deal with each of them in turn. First, Ms Tial says that she had no knowledge that she could take legal action. The absence of knowledge about one’s legal rights without more will generally not provide a satisfactory or acceptable explanation for the delay. I accept that Ms Tial’s command of the English language presents some barrier to her informing herself about the right to pursue an unfair dismissal application. That said, a person aggrieved by a dismissal has some obligation to make enquiries about what rights he or she may have in connection with the dismissal and to do so promptly. There is no shortage of information, both on the Commission’s website and on the Fair Work Ombudsman’s website, which provides a person who has been dismissed with information about the right to take action and the period within which to take such action. In any event, it is clear on the evidence that by at least 7 July 2021, if not earlier, the applicant was aware that she could take an unfair dismissal remedy action against her former employer, albeit that at that stage, the application would have been lodged outside of the time prescribed, but certainly within a period much shorter in delay than the six-month period of delay. Consequently, I am not persuaded that this reason alone provides an acceptable explanation for anything other than a very short period following the expiry of the 21 days.

[10] Secondly, Ms Tial says that she only became aware of the capacity to make an unfair dismissal remedy application once she had a conversation with a friend who communicated to her a past experience of making an application. She also said that she informed herself later, that is, some weeks after the expiration of the 21-day period, by consulting the Commission’s website. It is clear on the evidence that what she did at that time was to make an application to access the Commission’s workplace advisory service – a service provided by external law firms offering preliminary advice about rights to both employers and employees about dismissal matters on a pro bono basis. Ms Tial was advised some seven days after making an enquiry that that assistance was not available. It is clear when one looks at the Commission’s website that there is ample information about unfair dismissal remedy applications, how to make them, and importantly, the fact that applications need to be made within a prescribed time.

[11] Ms Tial also indicated that she consulted Ms Valerie Lester about her rights. It is clear from Ms Lester’s evidence that the first communication she had with Ms Tial was in early April of 2021. That occurred via a messenger texting application, and several communications occurred between them in that period. The gist of the evidence was that Ms Lester offered to contact Ms Tial’s former employer to enquire about the circumstances of her dismissal, in particular the incorrect information about the circumstances in which employment ended – namely that Ms Tial had not refused shifts and had not abandoned her employment. Ms Lester’s evidence was that she called the telephone number which appears at the bottom of the abandonment of employment letter and that she spoke to a person who answered the call who was receptive in that the person listened to the information, took Ms Lester’s details, and undertook to have someone return the call. According to Ms Lester, and I accept, no return telephone call was received.

[12] On or about 7 and 8 July 2021, further discussions occurred between Ms Lester and Ms Tial. The effect of these discussions was that Ms Lester would assist Ms Tial in preparing her unfair dismissal remedy application and in particular in preparing documents which later became attachments for the application setting out the circumstances of the dismissal, why the applicant contended that the dismissal was unfair and the reasons for the late lodgement.

[13] Ms Lester’s evidence was, and I accept, that in late July 2021 she edited some documents that Ms Tial had provided and sent those back to the applicant. Ms Lester’s evidence was that she thought thereafter that the applicant would lodge her application, so that by at least early August of 2021, Ms Tial had available to her all of the information that she required in order to lodge her application, but it was not lodged until 2 November 2021. Thereafter, Ms Tial gives some further reasons for the delay in lodgement. These are as follows.

[14] First, that she undertook a medical procedure – a day surgery – which on the evidence occurred at some stage before or shortly before 6 October 2021. The nature of a day surgery means that the patient is admitted as a day patient, the surgery is undertaken, there are observations made following the surgery, and thereafter the patient is released. Ms Tial’s evidence was that she was discharged on the same day as the surgery was undertaken and that she was not admitted as an inpatient. Whilst I accept that there might be some anxiety in the days leading to the surgery and some recovery time for a few days after the surgery, there appears to be no real explanation for the delay in lodgement between early August and the time of the surgery, which probably occurred no more than a week before 6 October 2021. Moreover, there is no real explanation for why the application was lodged some four weeks after the surgery was undertaken, and not sooner. This reason does not provide a satisfactory explanation for the delay.

[15] Secondly, Ms Tial says that she was required to isolate for some of that period after undertaking a COVID-19 PCR test, and whilst I accept that undertaking such a test may lead to some anxiety before results are received, in my experience, having undertaken such a test on five occasions in the last 18 months, results are usually forthcoming within 24 or 48 hours after the test is undertaken. In any event, Ms Tial was at home isolating, she was not incapacitated and so could have lodged the application at any time and had the information necessary to do so. This reason does not provide a satisfactory explanation for the delay.

[16] Thirdly, Ms Tial gave evidence that she was waiting for face-to-face meetings with Ms Lester, but as Ms Lester’s evidence discloses, by early August 2021 the edited documents which ultimately constituted the attachments to the application, and the application that the applicant completed herself, were readily available to her. There is no apparent or good reason why the delay beyond this point occurred. Moreover, as I discussed with Ms Tial during the hearing, instructions to Ms Lester necessary to assist Ms Tial could have been given by telephone or other electronic means and as Ms Lester said in her evidence, much of their communication occurred electronically and not in person. There is no evidence that any of the matters advanced by Ms Tial above prevented her from communicating with her representative by telephone or electronically in a timely manner the effect of which would likely have resulted in the application being lodged much earlier. This reason does not provide a satisfactory explanation for the delay.

[17] In the circumstances, whilst it may be said that taking into account a language barrier and the need for assistance, some small portion of the six-month delay may be explained, the totality of the lengthy delay period has not been adequately or satisfactorily explained. Consequently, I am not persuaded that there is a satisfactory explanation for a significant period of the delay, which in turn results in this consideration weighing against the applicant.

[18] Next is the question of the date on which the dismissal took effect. It is uncontroversial that Ms Tial received the letter from her former employer advising of the ending of the employment relationship on 30 March 2021. Indeed, the material provided by Ms Tial during the course of today’s proceeding confirms that on 30 March, she was aware of the action taken by the employer, and communicated with the respondent seeking to explain that she had not abandoned her employment and had not refused any shifts other than those for which she was unfit because of illness. The result of all of this is that on the day that the termination of the employment took effect, Ms Tial was aware that that was the case. Consequently, she did not become aware of the dismissal after it took effect. In those circumstances, she had the full 21 days within which to lodge her application. Whilst this matter would normally weigh against an applicant, I am prepared to give this consideration little weight in circumstances where I accept that language barriers may have contributed to some of the delay, and her capacity to make prompt enquiries.

[19] As to any action taken to dispute the dismissal, it seems uncontroversial that immediately following the dismissal, or a few days after the dismissal, the applicant engaged with Ms Lester for the purposes of Ms Lester making protests or enquiries about the circumstances of Ms Tial’s dismissal. I accept that this was a form of action taken to dispute the dismissal. I also take into account the fact that Ms Tial, immediately upon receiving the letter of abandonment of employment, communicated with the respondent in writing, which was in essence an action taken by her to dispute the dismissal. In those circumstances, I accept that the applicant took some steps to dispute her dismissal following the termination of her employment, and consequently, this matter weighs in her favour.

[20] As to prejudice, the respondent accepts that it has suffered no prejudice and will suffer no prejudice if an application to extend time is granted, and that it suffered no particular prejudice as a consequence of the delay. That said, the delay was relatively lengthy, and the absence of prejudice by itself is not a factor that would usually in cases such as this warrant a finding of exceptional circumstances. Nonetheless, the absence of prejudice, I consider, weighs neutrally in this case when I take into account the period of the delay, which as I have said was, in the relative sense, lengthy.

[21] As to the merits, the respondent has accepted that the characterisation of the reasons for her dismissal set out in the abandonment letter are not justified, and that the respondent has some work to do. Thus, prima facie, the application is not without merit, and on one view, is reasonably strong. However, balanced against this are several other matters. First, the applicant does not want to be reinstated, notwithstanding the respondent’s willingness to reinstate her as a casual employee. Second, as Ms Tial has obtained full-time employment through the NDIS scheme, the likely consequence of this application going forward is that even if there were to be a finding of unfair dismissal – that is, the dismissal of the applicant as a casual employee was unfair – the remedy consideration is likely to lead to a conclusion that no or only minimal compensation is to be awarded. This is because the amount that Ms Tial has earned since her dismissal likely exceeds the remuneration she would have earned had casual employment with the respondent continued. This is an important consideration in assessing the weight to be given to a case which has merit in the circumstances. Consequently, I consider that this consideration weighs slightly in the favour of Ms Tial, but for the reasons stated, not significantly so.

[22] The final matter concerns the fairness as between Ms Tial and persons in a similar position. The circumstances in which this consideration might arise include where there have been other decisions of the Commission of a similar factual basis, or where there are other employees of the employer who have faced similar circumstances. Neither party referred to any case in the hearing and no particular employee other than Ms Tial was identified. I am not aware of any circumstance which might lead to weighing this matter one way or the other, and so the proper course is to weigh this consideration neutrally.

[23] In my assessment, the absence of a satisfactory explanation for the delay in circumstances where the delay, in a relative sense, was considerable, weighs heavily against a conclusion that there are exceptional circumstances. There are certainly some matters which weigh in favour of Ms Tial, but not so heavily as to outweigh the absence of a satisfactory explanation for the delay.

[24] In those circumstances, I am not persuaded that there are exceptional circumstances. As there are no exceptional circumstances, the consideration of the exercise of my discretion does not arise. The unfair dismissal remedy application was therefore made outside of the time prescribed. Consequently, the unfair dismissal remedy application was not made in accordance with the Act and must be dismissed.

Order

[25] I therefore order that:

1. The application to allow a further period within which Ms Mang Tial might be allowed to lodge an unfair dismissal remedy application is refused; and

2. The application (U2021/9846) lodged on 2 November 2021 outside of the time prescribed in s 394(2) of the Fair Work Act 2009 be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms V Lester on behalf of the applicant
Ms N Robertson on behalf of the respondent

Hearing details:

2021
Melbourne (via video)
20 December

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<PR736998>

 1 [2021] HCA 23