Moa Wakuk v JBS Australia Pty Ltd

[2020] FWC 3161

[2020] FWC 3161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Moa Wakuk
v
JBS Australia Pty Ltd
(U2020/7493)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 19 JUNE 2020

Application for an unfair dismissal remedy – application filed 242 days out of time – circumstances not exceptional.

[1] This decision concerns an application by Mr Moa Wakuk for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Act).

[2] Mr Wakuk made an application for an unfair dismissal remedy under s.394 of the Act on 30 May 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). It is not in dispute that Mr Wakuk’s application was filed outside the timeframe for lodgement of the application. Mr Wakuk seeks that the Commission allow a further period of time for the application to be made.

[3] The Respondent opposes the grant of an extension of time. It says that Mr Wakuk resigned on 10 September 2019.

[4] For the reasons set out below, I am not satisfied that there are exceptional circumstances that warrant the grant of a further period for making the application. The application is dismissed.

When did the dismissal take effect?

[5] Mr Wakuk contends that it is not clear when his employment ended. Notwithstanding this, upon lodgment of the application Mr Wakuk accepted that it was not made within 21 days of the dismissal taking effect. 1

[6] During the proceedings Mr Wakuk said that his father, who had also been employed by the Respondent, advised him on or about 12 September 2019 that the Respondent considered that Mr Wakuk had abandoned his employment. However, Mr Wakuk contends that he did not abandon his employment. Rather, he says that he sought approval to finish his shift early following an exchange with his supervisor Mr Simon Bennett, and return to work the next day. 2 Mr Wakuk formed the view that his request was approved because he was presented with, and signed, what he understood to be a sign off sheet.3

[7] Mr Wakuk said that he did not present for work the next day on 11 September 2019, or thereafter. He contends that there was a downturn in work at this time, and he was waiting for a telephone call from the Respondent inviting him to return.

[8] On 30 May 2020, Mr Wakuk attended Sunshine Lawyers and met with his representative, Mr Monoah. Mr Wakuk submits that the Commission should regard 30 May 2020 as the effective date of dismissal, being the date that his representative advised him of the 21-day limitation period. 4

[9] The Respondent contends that on 10 September 2019 Mr Wakuk resigned from his employment. In support of its position the Respondent relies upon the following:

(a) An employee exit checklist dated 10 September 2019 and signed by Mr Wakuk which provides that the employment ended by way of resignation.

(b) Mr Wakuk’s final pay slip dated 18 September 2019, which it says it mailed to him and which indicates that Mr Wakuk’s accrued entitlements had been paid.

(c) A separation certificate receipt from the Department of Human Services dated 18 September 2019.

(d) Witness statements of Mr Bennett and Mr Jumaa Kuel, Team Member which support its case that Mr Wakuk resigned on 10 September 2019. 5

[10] For the purpose of determining the extension of time application, it is not necessary to determine whether Mr Wakuk resigned or was dismissed. It is sufficient that the Commission has before it an application that, on its face, alleges a dismissal. 6

[11] In these circumstances, it is appropriate to exercise caution in determining an effective date of dismissal so as not to “correlatively” determine Mr Wakuk’s substantive application including the Respondent’s primary position that he resigned. 7 However, in determining the extension of time application, it is necessary to identify an effective date of the alleged dismissal.

[12] The employee exit checklist specifies that the employment ended on 10 September 2019. It is recorded that Mr Wakuk requested a separation certificate and returned to the Respondent his security/ID Card. The checklist contains Mr Wakuk’s personal contact details and signature. 8 Mr Wakuk submits that he did not understand that by signing the document he was taken to have resigned from his employment.9

[13] Mr Wakuk invited the Commission to draw a Jones v Dunkel 10 inference against the Respondent for not relying upon direct evidence from its employee Ms Dani Forbes, in circumstances where she completed and processed Mr Wakuk’s exit checklist. However, in accordance with [10] and [11] above, in determining the date Mr Wakuk’s employment ended the Commission does not need to make a finding as to whether Mr Wakuk resigned. There is evidence before the Commission that enables a determination of the date the employment ended without drawing the inference sought, and I decline to do so.

[14] It is not in dispute that Mr Wakuk did not return to work after 10 September 2019. However, his contention during the proceedings that this was occasioned by a decrease in workflow is opposed by the Respondent and not supported by evidence. This contention is therefore rejected. While Mr Wakuk contends that he was not in receipt of a separation certificate (or any other written notification of his employment having ended), 11 the employment separation certificate receipt requested by the Respondent on 18 September 2019 from the Department of Human Services states that the employment ceased on 10 September 2019.12 This receipt is objective evidence of the employment cessation, irrespective of whether the separation certificate was provided to Mr Wakuk. Further, Mr Wakuk’s final pay slip dated 18 September 2019 indicates that he was paid accrued annual leave and leave loading.13

[15] Having regard to the above matters, I find that Mr Wakuk’s employment ended on 10 September 2019.

[16] Mr Wakuk’s application for unfair dismissal remedy was received by the Commission on 30 May 2020. It follows that the 21-day statutory timeframe for filing the application expired at midnight on 1 October 2019. The application was filed 242 days outside of that timeframe.

Statutory framework

[17] The Commission has the power pursuant to s.394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 14In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.

[18] Under s.394(3) of the Act, the Commission may allow a further period of time for an application under s.394 to be made if it 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.

[19] I consider each of these matters below.

Consideration

Reason for the delay

[20] Mr Wakuk submits that his application was lodged outside the 21-day timeframe because he had not received written notification from the Respondent advising that his employment ended effective 10 September 2019, or a separation certificate. 15 He says that the government-imposed restrictions occasioned by the COVID-19 pandemic compounded the delay.16

[21] The Respondent contends that the evidence before the Commission does not support Mr Wakuk’s reasons for the delay. 17

[22] The relevant period required to be considered under s.394(3)(a) is the period after the 21-day timeframe for lodging the application, being 2 October 2019 to 30 May 2020. 18 However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.19

[23] I am not persuaded, in the circumstances of this case, that the absence of a termination notice or a separation certificate prevented Mr Wakuk from lodging his application for an unfair dismissal remedy within time. On Mr Wakuk’s own case, he was aware from at least on or about 13 September 2019 that the Respondent regarded him to have resigned from his employment, prompting Mr Wakuk to attend Centrelink to “collect the paper he was told to collect as a proof of his termination.” 20 Mr Wakuk’s contention that a termination notice or separation certificate “might” have assisted his local priest to “piece the information at the time to perhaps consider lodging unfair dismissal claim”21 is speculative and not accepted.

[24] I do not find that any of the matters relied upon by Mr Wakuk as reasons for the delay prevented him from lodging the application within time, against the backdrop of the COVID-19 pandemic or otherwise. I do not consider these reasons to constitute exceptional circumstances. Mr Wakuk does not otherwise explain why it took him more than eight months to bring his application to the Commission.

[25] This weighs against the grant of an extension.

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

[26] The Respondent contends that Mr Wakuk resigned from his employment on 10 September 2019.

[27] Mr Wakuk says that on or about 13 September 2019 the Respondent advised him by telephone that he had resigned from his employment. I am satisfied that at least upon receipt of this information, Mr Wakuk was aware that his employment had ended. On this analysis, Mr Wakuk did not have the full 21-day period to lodge his unfair dismissal application. However, I do not consider this to weigh in favour of the grant of an extension in circumstances where the application was not lodged for more than eight months, on 30 May 2020.

[28] In the circumstances, I consider this to be a neutral consideration.

Action taken by the person to dispute the dismissal

[29] Mr Wakuk says that on or about 13 September 2019, he telephoned the Respondent regarding his employment. He submits that the Respondent advised him that he had resigned, and he verbally disputed this. 22 Mr Wakuk says that he was directed by the Respondent to attend Centrelink, which he did one to two weeks later to obtain paperwork.

[30] The Respondent contends that following the issuance of Mr Wakuk’s final payslip dated 18 September 2019, it was not subsequently contacted by Mr Wakuk. This is consistent with the evidence, which discloses that Mr Wakuk took no action to dispute the dismissal, except for meeting with his legal representative on 30 May 2020 and lodging the application that same day.

[31] I consider these matters to weigh against the grant of an extension.

Prejudice to the employer

[32]  It is not contended, and nor do I consider that any prejudice to the Respondent would arise if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time. 

[33] I consider this to be a neutral consideration.

Merits

[34] There is insufficient material before me to make any detailed assessment as to the merits of the substantive application. Nor should the Commission embark upon such analysis in determining whether to grant an extension of time. 23

[35] It is apparent on the material that the parties are in dispute as to the question of whether Mr Wakuk resigned from his employment.

[36] The Respondent submits that Mr Wakuk’s application has no merit. It says the evidence supports its position that Mr Wakuk volunteered his resignation. It contends that all of Mr Wakuk’s accrued and outstanding entitlements were paid out to him. However, Mr Wakuk says that he understood the employee exit checklist to be a sign off sheet approving his request to finish work early on 10 September 2019.

[37] Given the factual dispute between the parties, which has not been tested before me, I regard the merits of the case as a neutral consideration.

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

[38] The parties did not raise any circumstances that are relevant to the question of fairness as it relates to Mr Wakuk or any other person in a similar position.

[39] I consider this to be a neutral consideration.

Conclusion

[40] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time, either when the various circumstances are considered individually or together.

[41] Given this, there is no basis for me to allow an extension of time. Mr Wakuk’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

K Monoah on behalf of the Applicant

W Murraylee for the Respondent

Hearing details:

2020.
Melbourne (by telephone):
June 17.

Printed by authority of the Commonwealth Government Printer

<PR720252>

 1   Form F2 Application filed and dated 30 May 2020 (Form F2) at 1.3 and 1.4

 2   Ibid at 3.1

 3   Ibid at 3.2

 4   Applicant’s submissions filed and dated 11 June 2020 (Applicant’s submissions) at 1

 5   Respondent’s submissions filed and dated 16 June 2020 (Respondent’s submissions) at (a), Attachments A - F

 6   See Hewitt v Topero Nominees Pty Ltd[2013] FWCFB 6321 in the context of s.365 of the Act although the observations are apposite

 7   Cameron Milford v Coles Supply Chain Pty Ltd [2019] FWCFB 2277 at [21]

 8   Attachment B to Respondent’s submissions

 9   Above n 3

 10 (1959) 101 CLR 298

 11   Applicant’s submissions at 2

 12   Attachment D to Respondent’s submissions

 13   Attachment C to Respondent’s submissions

 14 [2011] 203 IR 1

 15   Above n 11

 16   Form F2 at 1.5

 17   Respondent’s submissions at (b)

 18   Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [40]

 19   Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]

 20   Applicant’s submissions at 3

 21   Ibid

 22   Ibid at 4

 23   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]