Mangesto Chol v Prixcar Services Pty Ltd

[2014] FWC 6985

[2014] FWC 6985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mangesto Chol
v
Prixcar Services Pty Ltd
(U2014/11824)

COMMISSIONER LEWIN MELBOURNE, 8 OCTOBER 2014

Application for relief from unfair dismissal - whether exceptional circumstances exist for the Fair Work Commission to consider exercising its discretion to extend the period for making an unfair dismissal application - no exceptional circumstances - application dismissed.

Introduction

[1] This decision concerns an application for an unfair dismissal remedy by Mr Mangesto Chol. Mr Chol was employed by Prixcar Services Pty Ltd (Prixcar) from 11 November 2004 until the termination of the employment on 5 May 2014. There is a dispute over whether Mr Chol’s employment ended at the initiative of Prixcar.

[2] Mr Chol made his application on 19 August 2014, more than 21 days after the putative date of his dismissal by Prixcar prescribed by s 394(2)(a) of the Fair Work Act 2009 (the Act) for the application to be made. Mr Chol asks that the Fair Work Commission (the Commission) exercise its discretion under s 394(3) of the Act to extend the period for making the application.

Relevant legislation

[3] Section 394(3) of the Act contains the provisions for the Commission to allow a further period than the 21 days after the termination of the employment provided for in s 394(2)(a) of the Act to make the application, as set out below:

“(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

[4] In order for the Commission to exercise its discretion to allow a further period for the application to be made, the Commission must be satisfied that there are exceptional circumstances, taking into account the matters stipulated in s 394(3).

[5] If the Commission is satisfied that the circumstances are exceptional, it must then determine if a further period for the making of the application should be allowed.

[6] I now turn to each of the matters I must take into account in determining the matter.

The reason for the delay

[7] The delay in making the application was a period of 85 days, from 27 May 2014, the day the 21 day period after the dismissal took effect expired, to 19 August 2014, the day Mr Chol made the application for an unfair dismissal remedy to the Commission.

[8] Mr Chol was on approved annual leave from 5 February 2014 until 16 April 2014 and was due to return to work that day. In early February 2014 Mr Chol travelled to Ethiopia and claims to have become stranded there at the time when he was due to return to work. Mr Chol called Mr Michael Jankovski, his supervisor at Prixcar, on 18 April 2014 to let him know he would be delayed in returning to Australia and, as a result, to work. Mr Chol returned to Australia on 3 May 2014 and attended work at Prixcar around 9.00am on 5 May 2014. Mr Chol presented in casual attire instead of the company provided uniform. Mr Chol and Mr Jankovski had a conversation at that time. At the conclusion of the conversation Mr Chol filled out a form resigning from his employment. Mr Chol argues he did so under duress. Mr Jankovski’s evidence is to the contrary.

[9] I have considered the evidence and am not satisfied that the resignation was made under duress. Rather, in my judgement, Mr Chol had a brief conversation with Mr Janvovski as a result of which Mr Chol decided to voluntarily end his employment. My reason for this finding is that the nature of the alleged duress that Mr Chol claims induced his resignation was not discussed in his witness statement or raised in the evidence submitted before the hearing and, for the reasons that follow, Mr Chol was content to leave his employment.

[10] It is relevant that Mr Chol attended work on 5 May 2014 well after the usual shift starting time of 7.30am, and that he was casually dressed. He was several weeks late arriving back from Ethiopia. Mr Chol stated that Mr Jankovski told Mr Chol that he could start work or resign and that if he wanted to resign he should fill out a form and he would receive all of his accrued entitlements, which were significant. Mr Chol, on his calculation, had substantial accrued annual leave and long service leave entitlements for his service with Prixcar and accrued rostered days off. Mr Jankovski’s evidence was somewhat equivocal on the subject of the discussion of Mr Chol’s entitlements and said he had no recollection of the details of the conversation on 5 May 2014, in this regard.

[11] Since the end of the employment, Prixcar has not paid Mr Chol the entitlements he claims are due to him. Prixcar has refused to do so and has withheld the monies due to Mr Chol on the basis that Mr Chol did not give four weeks’ notice of the resignation as required under cl 17.2 of the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Award), which is incorporated as a term of the Prixcar Services Pty Ltd Enterprise Agreement 2013 (the Agreement). The Agreement applied to Mr Chol’s employment at the time the employment relationship ended.

[12] Since the termination of the employment, it is clear that Mr Chol has been pursuing the non-payment of his accrued entitlements by Prixcar through the Fair Work Ombudsman and has been independently assisted by the Footscray Community Legal Centre (FCLC). Indeed, on what is before me, that was the sole issue in dispute between Mr Chol and Prixcar concerning the termination of his employment until the application for an unfair dismissal remedy was filed.

[13] In my view, on 5 May 2014, Mr Chol was content to resign his employment if the accrued entitlements he has been seeking since the end of his employment were paid out to him. He was of the view that he would be paid his entitlements by agreement if he resigned his employment on 5 May 2014, as a result of the conversation with Mr Jankovski.

[14] On the evidence before me, Mr Jankovski did not mention any need for Mr Chol to give notice to resign his employment in the conversation between them on 5 May 2014. Moreover, I find that it was the clear outcome of the conversation, understood and agreed by Mr Chol and Mr Jankovski, that Mr Chol’s resignation would be effective immediately. Mr Chol would not be required to give notice and Mr Chol would be paid his accrued entitlements, including: annual leave; long service leave; and, payment for rostered days off not taken at the time the employment ended.

[15] Considering all of the above, I see no evidence of duress. Rather, in my view, these circumstances and the subsequent non-payment of the accrued entitlements by Prixcar are the reason for the delay in the filing of the application.

[16] Mr Chol pursued the payment of the accrued entitlements, unsuccessfully, during the whole of the period of the delay, within the period from 5 May 2014 to 19 August 2014. When Mr Chol was unsuccessful claiming these amounts through different avenues he made an application for an unfair dismissal remedy to the Commission.

[17] There was no impediment to Mr Chol filing the application for an unfair dismissal remedy within time.

[18] It was put by Mr Sabinus Robi, who represented Mr Chol, that representative error was a reason for the delay. I reject that submission. The representative error is said to arise because the FCLC, wrongly, did not advise Mr Chol that he could make an application for an unfair dismissal remedy under s 394 of the Act.

[19] On what is before me, there is insufficient evidence to support this submission. I think that it is more probable than not that Mr Chol sought assistance from FCLC to recover his entitlements. FCLC wrote a letter of demand to Prixcar on 30 June 2014 detailing the claim and the entitlements which Mr Chol sought, as a matter of law. Mr Chol gave evidence that he also pursued these entitlements through the Fair Work Ombudsman.

[20] If the instructions to the FCLC were that Mr Chol was seeking assistance in receiving his entitlements, which in all probability they were, then the FCLC was not asked to dispute the termination of the employment, but rather, to recover monies owed, and acted according to those instructions. There was no evidence that Mr Chol sought advice from the FCLC on how to dispute the termination of the employment or file an application with the Commission. Given Mr Chol was legally represented by Mr Robi, I infer that no such evidence is available.

[21] If Mr Chol had informed the FCLC that he had resigned his employment and had not claimed to have done so under duress it would have been clear to a competent lawyer that there would be no basis to make an application for an unfair dismissal remedy.

[22] If Mr Chol had stated that he resigned under duress, the issue of constructive dismissal would have arisen. Mr Chol’s evidence does not include reference to such instructions to FCLC. Moreover, if he had done so, there would have been no impediment to advice on an application for an unfair dismissal application being given.

[23] On what is before me, I find that Mr Chol did not seek advice on an unfair dismissal application from the FCLC and, consequently, there was no representative error which constitutes a reason for delay in the filing of the application.

[24] In my judgement, Mr Chol filed this application late because he could not recover his accrued entitlements and it was only once avenues to pursue the amounts owed had been exhausted that he made his application to the Commission. In effect, Mr Chol chose to pursue an unfair dismissal remedy late. Mr Chol was not in any way prevented from filing his application during the 21 day period following the end of his employment or during the period of the delay.

[25] These are not exceptional circumstances. It is not exceptional for an employee whose employment ends involuntarily not to make an application for an unfair dismissal remedy, but rather to pursue legal rights in relation to claimed unpaid accrued entitlements.

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

[26] Mr Chol became aware that his employment ended by resigning on consensual terms on 5 May 2014. These circumstances are not exceptional.

Any action taken by the person to dispute the dismissal

[27] Mr Chol did not take any action to dispute the termination of his employment before making the application for an unfair dismissal remedy. Rather, apart from the application in his matter, Mr Chol has only disputed Prixcar’s failure to perform the terms of the consensual variation to his contract of employment agreed to between him and Mr Jankovski on 5 May 2014. This is consistent with the findings above and does not constitute exceptional circumstances relevant to the making of an application for an unfair dismissal remedy.

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

[28] I consider there would be prejudice to Prixcar if the time for making the application were extended. Prixcar would be required to deal with an application, which on the face of it, would not be an application by an employee who was dismissed, and would therefore likely fail for want of jurisdiction.

The merits of the application

[29] The substantive application is without merit because, in accordance with my finding above, Mr Chol was not dismissed by Prixcar or forced to resign. Rather, Mr Chol terminated his employment on the basis of a promise, which has not been kept, and in respect of which he likely has other legal remedies available to him.

[30] In my view, because of the promise made vicariously by Prixcar through Mr Jankovski to Mr Chol, Mr Chol is due the entitlements that are owed to him by Prixcar.

[31] If I am wrong on this, however, cl 17.2 of the Award, as incorporated into the Agreement, allows Prixcar, on its face, at an absolute maximum, to withhold an amount equal to four weeks’ of pay from monies due to Mr Chol under the Award or the National Employment Standards (NES) only. The Award does not allow Prixcar to withhold the entitlements owed to Mr Chol under any other statutory scheme.

[32] It is clear that cl 17.2 of the Award, as incorporated as a term of the Agreement, does not allow Prixcar to withhold accrued long service leave entitlements from an employee. The employer is only entitled to withhold “monies due to the employee on termination under this award or the NES” (emphasis added).

[33] Moreover, as already noted, the Award is incorporated into the Agreement, which is the industrial instrument that applied to Mr Chol at the time his employment was terminated, by operation of cl 3.1 of the Agreement. Consequently, the relevant provisions of s 324 of the Act apply, which relates to permitted deductions. In these circumstances, s 324(1)(c) of the Act, which permits deductions authorised under an Award that operates in relation to an employee’s employment, is of no effect. This is because the operation of the Agreement displaces the operation of the Award.

[34] For all of these reasons, in my view, Mr Chol is due to be paid his accrued entitlements from Prixcar. This does not, however, constitute merit in relation to the termination of the employment, but, rather, is a matter of the merits of a claim for consequential liability arising from the termination of the employment, which must be determined by a court.

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

[35] There are no employees in a similar position to Mr Chol in this matter.

Conclusion

[36] For all of the above reasons, I find that there are no exceptional circumstances of a relevant kind in relation to the termination of Mr Chol’s employment and the events between the ending of the employment relationship and the making of the application in this matter, which would give rise to the power to accept the application out of time.

[37] Accordingly, the power to exercise the discretion to accept the application out of time does not arise.

[38] Mr Chol’s application must therefore be dismissed.

COMMISSIONER

Appearances:

Mr S Robi, of Kaprivi Legal, for the Applicant.

Mr G DeClase, of Prixcar Services Pty Ltd, for the Respondent.

Hearing details:

2014.

Melbourne.

September 26.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR556224>