Melchor Pugaha v Adapt-A-Lift Forklift Rentals & Sales Pty Ltd T/A Adaptalift Hyster

[2014] FWC 5289

[2014] FWC 5289

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melchor Pugaha
v
Adapt-A-Lift Forklift Rentals & Sales Pty Ltd T/A Adaptalift Hyster
(U2014/10953)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 AUGUST 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 4 August 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 17 July 2014 Mr Pugaha lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with Adapt-A-Lift Forklift Rentals & Sales Pty Ltd T/A Adaptalift Hyster (Adaptalift).

[3] In that application, Mr Pugaha advised that his dismissal took effect on 11 April 2014. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“ After being harshly dismissed by my employer, I sought the assistance of my union’s industrial officer. He told me that he would only help me if I can recruit more members for the union. I cannot understand this. I think he started some negotiation process of which I had no idea.

• Meanwhile, not understanding what would happen next, I started applying for other jobs in my line of work. Despite having 28 years experience as an all-around mechanic (gas, diesel, hydraulics, electrical etc.), this is the first time in my life that all applications were rejected outright. After some investigation, I now have proof that my ex-boss was passing on very derogatory statements to my potential employers - behaving as if he had a deep-seated personal vendetta against me.



• To date, my industrial officer has never given me any feedback on what he has done. I feel he simply wants me to get lost. I can feel the discrimination and I want to be heard.



• I had no idea about the technicalities regarding filing an unfair dismissal claim particularly the timeline for filing. My industrial officer assured me that he would take care of this but nothing was forthcoming.



• My Manager has been with the company for only under 1 year while I had been working there for 9 years with good work appraisals from the previous bosses. (A work colleague overheard him on one occasion saying that he “....hates Filipinos....”)



• I was dismissed for no valid reason.



• I not given the opportunity to properly respond.



• My request for a support person was never given any consideration.



• There were no warnings - just straight up accusations of fault against me.



• Though we have an internal HR Department taking charge of grievances, I was not referred to an officer. Not even the State Manager was made aware.



• I was accused of faulty jobs which had nothing to do with me. (Work outputs done by others.)



• I had been subjected to bullying and harassment by my immediate supervisor who always carries a knife at the workplace to intimidate me.



• My manager treats me in a derogatory and very demeaning manner which send me to tears on some occasions.



• I can present proof and witnesses that my manager and supervisor come to work while they are still intoxicated. They consume alcohol at our workplace - almost on a daily basis.



• My dismissal was carried outside of our company’s normal procedure. My appraisal reports was also made as my dismissal letter. (The formal termination letter was sent at a later date to cover-up the process flaw.” 1

[4] The application was referred to me for consideration. On 21 July 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 4 August 2014. Mr Pugaha was required to provide a witness statement and a copy of any document relied upon, by 28 July 2040.

[5] The Employer’s Response (Form F3) to the application confirmed that Adaptalift objected to an extension of time.

[6] Mr Pugaha provided material to the Fair Work Commission (FWC) and to Adaptalift. That material was in the form of a witness statement which confirmed the advice provided in the application and added that Mr Pugaha had not subsequently received any feedback from the AMWU union official whom he saw some three months ago. Further, Mr Pugaha stated:

“It was only recently that I have learned from my friends that Unfair Dismissal application should be made within 21 days after termination of employment. Had I know this, I would have acted swiftly and made the application on time.” 2

[7] Mr Pugaha‘s statement continued, to express concern what he saw was the inappropriate behaviour of Adaptalift management. He stated:

“I feel concerned now because all of my job applications could not even get me an interview. This is very unusual. I have reasons to believe and have also strong evidence to present that my previous employer had been giving out derogatory statements to my potential employers. The unprofessionalism and discrimination I have experienced from my immediate superiors at Adapt-A-Lift are consistent with this.” 3

[8] Mr Pugaha advised that his doctor had confirmed he was stressed and showing signs of major depression.

[9] Shortly before the commencement of the conference Mr Pugaha forwarded copies of the statement of service provided to him by Adaptalift on 2 May 2014 together with a copy of an e-mail purportedly sent by the AMWU Legal Officer to other AMWU staff on 16 April 2014. This e-mail stated:

“Met with 48 yr. old member today. Jose present. Dialect is ilonggo or Cebuano. Member started having issues with his new Service Manager Rick when he returned from holidays in May 2013. Got off on wrong foot with him since. Believes a conspiracy between Rick Modzelewski and Supervisor Chris Slater to set him up for dismissal on 11/4/14.

Has been allocated 3 x more jobs per day than other workshop technicians (Forklift repairs). Given a warning on 7/2/14 then joined union on 10/2/14 with pre existing issue.

Current employer took over business in 2009. His Service Mgr. was Barry Hughes until promoted to State Manager in April 2013. Rick M took over - never had any issues with Hughes.

No other union members on premises. Advised Melchor that if he can get both of his Filipino co-workers to join up and be prepared to be witnesses to corroborate discrimination against Melchor we can go ahead with UFD claim. We need hard evidence. We have

If not I will negotiate for resignation and statement of service and ensure he gets his correct entitlements. Advised him never to go into meetings with boss without union representation.

If we are to lodge UFD claim we need to do so before 2/5/14. Filing fee of $65.50 required by member prior to filing.”

[10] The extension of time issue was considered through a telephone conference on 4 August 2014. A sound file record of this conference was kept. Mr Pugaha participated in this conference and was represented by Mr Salveron, former employee of his union, the AMWU but now described as “his friend”. Adaptalift was represented by Mr Lindsay.

[11] I have taken all of the material before me into account in considering the extension of time issue on.

[12] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[13] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[14] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 76 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Pugaha’s circumstances can be regarded as exceptional for the purposes of this subsection.

[15] The information Mr Pugaha has provided does not adequately explain why the application could not have been lodged within time. Notwithstanding that the information provided by Mr Pugaha indicates actions on the part of his union that may be inappropriate and may be established as contrary to the provisions of the FW Act, this material does not properly explain the substantial delay in the lodgement of the application. The material before me indicates that Mr Pugaha was advised by the AMWU that the union would endeavour to obtain a statement of service for him and have the termination of his employment characterised as a resignation. There is nothing to indicate that Mr Pugaha advised the AMWU that such a remedy was entirely unacceptable to him. Mr Pugaha asserted that the AMWU’s actions were most properly characterised as a form of blackmail, but his subsequent decision to simply wait for the AMWU to initiate the application is inconsistent with that allegation. It may be that Mr Pugaha asserts that his union’s behaviour should be characterised as representative error. Representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. 4 Consequently, the actions taken by Mr Pugaha are central to the question of whether there is an acceptable reason for the delay. There is nothing in the material before me that establishes that Mr Pugaha took action in a prompt and timely fashion to progress this application rather than simply waiting for his somewhat unsatisfactory dealings with his union to continue.

[16] Further, Mr Pugaha confirmed that his lack of awareness of the 21 day time limit was a significant factor which explains his lack of action. In Nulty v Blue Star Group Pty Ltd 5 a Full Bench considered the concept of “exceptional circumstances” in the following terms:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In 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.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[17] I have adopted that position such that I am not satisfied that Mr Pugaha’s lack of awareness of the 21 day time limit should be regarded as an exceptional circumstance.

[18] To the extent that Mr Pugaha asserts that the reason for the delay was due to his current representative, Mr Salveron being overseas for part of June and early July, this does not provide a basis for the delay in that the application should have been lodged before that time.

[19] It may well be the case that Mr Pugaha is stressed and showing signs of major depression but evidence that establishes a medical basis upon which he was unable to lodge the application for such a long period of time has not been provided.

[20] In summary terms, I am not satisfied that Mr Pugaha has established to me a satisfactory reason for the very substantial delay.

[21] On the information provided in Mr Pugaha’s application, I am satisfied that he was made aware of the termination of employment decision on 11 April 2014 which I have taken as the date that termination of employment took effect.

[22] The information before me that establishes that Mr Pugaha was aware of discussions which led to the provision to him of a statement of service and an attempted agreement on an undertaking that no derogatory comments would be made about him to prospective employers. Mr Pugaha’s subsequent belated pursuit of this application is, in this context, inconsistent.

[23] I have concluded that, given the duration of the delay in the lodgement of the application, the granting of an extension of time would prejudice the respondent in this matter.

[24] In terms of the merits of the application, the limited information before does not permit a conclusion about whether Mr Pugaha is likely to be successful in establishing that the termination of his employment was unfair. Because of the factual conflict between the parties I have regarded the merits of the application as a neutral factor in considering the extension of time issue.

[25] Considerations of fairness relative to persons in similar circumstances to Mr Pugaha’s do not support an extension of time.

Conclusion

[26] For the reasons I have set out above, Mr Pugaha’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR553902) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

J Salveron representing the applicant.

B Lindsay representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

August 4.

 1   Form F2, para 1.4

 2   Witness Statement of Melchor Pugaha, second dot point, page 2

 3   Witness Statement of Melchor Pugaha, last dot point, page 1

 4   see for example Clark v Ringwood Private Hospital Print S5279 and Comcare v O’Hearn [1993] 119 ALR 85

 5   [2011] FWAFB 975

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