Moumita Saha v Waguih Attiah T/A Dandenong Kiosk
[2018] FWC 5916
•25 SEPTEMBER 2018
| [2018] FWC 5916 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Moumita Saha
v
Waguih Attiah T/A Dandenong Kiosk
(U2018/7650)
| Deputy President Masson | MELBOURNE, 25 SEPTEMBER 2018 |
Application for an unfair dismissal remedy - whether extension of time should be granted for out of time application – application dismissed.
Introduction
Mrs Moumita Saha (the Applicant) had been employed by Waiguih Attiah T/A Dandenong Kiosk (the Respondent) as a casual employee since 25 January 2017. She was advised on 28 June 2018 via email by the Respondent’s accountant that she was to be dismissed with immediate effect for reasons of negligence and misconduct. There was no dispute that the date of termination was 28 June 2018 or that the Applicant was notified of her dismissal on 28 June 2018.
The Applicant alleges that the termination of her employment by the Respondent was unfair. A completed Form F2 – Unfair Dismissal Application form (the Application) was filed by the Applicant with the Fair Work Commission (Commission) on 24 July 2018. The Application was therefore not made within 21 days after the dismissal took effect on 28 June 2018, as required under s 394(2)(a) of the Fair Work Act 2009 (the Act).
The Respondent objected to the application on two grounds. Firstly, that the Application had not been made within 21 days of the dismissal taking effect and secondly, that the Respondent is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.
Determination of the extension of time application was set down for a hearing/conference before me on 21 September 2018. After taking into account the wishes of the parties as to the way in which the Commission would consider and inform itself in relation to the application, I decided to conduct a conference pursuant to s 398 of the Act to determine the extension of time application.
The Applicant appeared at the conference and gave evidence on her own behalf while the Respondent was represented by Mr A Massoud who was granted permission to appear pursuant to s 596 of the Act. Mr Massoud called Mr Waiguih Attiah to give evidence on behalf of the Respondent.
Statutory provisions
The relevant statutory provisions are to be found at s 394 of the Act and provide as follows:
“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.”
It is clear from the statutory provisions that the Commission can extend the time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances under s 394(2)(b) of the Act. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s 394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd [1] (Nulty) where the Full Bench said:
“[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.” [Endnotes not reproduced]
The Full Bench of the Commission affirmed in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2] that the conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. Further, the Full Bench clarified that with respect to s 366(2)(a) of the Act, a credible explanation for the entirety of the delay is not a precondition for the granting of an extension of time. The Full Bench held as follows:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
[41] The ‘reason for the delay’ is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.” (footnote omitted).”
In deciding whether to allow a further period for an application to be made, the Commission must take into account the matters set out in s 394(3) above. I will now deal with each of those matters.
Section 394(3)(a): the reason for the delay
One of the matters that must be considered and weighed is whether an acceptable reason for the delay in making the unfair dismissal application exists.[3]
The Application was filed on 24 July 2018 which is 26 days after the Applicant’s dismissal or 5 days beyond the 21 day statutory period required by s 394(2)(a) of the Act.
The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. 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.[4]
The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[5]:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
The Applicant states that following her dismissal on 28 June 2018, she made contact with the Fair Work Ombudsman (FWO) on 29 June 2018 in relation to her award classification and pay as she claimed the Respondent had failed to pay her wages. She also states that she believes she told the FWO during that conversation that she had been dismissed. She states she made a further phone call to the FWO on 3 July 2018 and asked for information regarding the calculation of her wages.[6]
The Applicant further states that she attended the Springvale Monash Legal Service (the Legal Service) on 23 July 2018[7] and was informed during that meeting that as she had been dismissed without warning she should file an unfair dismissal claim. She states she was told such application must be filed within 21 days. Following advice from the Legal Service, the Applicant then filed her unfair dismissal claim on 24 July 2018.
The Applicant also claimed to have been unwell during the relevant period following her dismissal but did not provide any medical evidence that her illness had delayed or prevented her from filing her Application. In any event, the Applicant acknowledged that her illness did not prevent her from making inquiries with the FWO regarding her pay entitlements.[8]
The Applicant claims to have been confused regarding the FWO’s role and whether they were the appropriate body to pursue her unfair dismissal role. This she stated explained the delay in the filing of her Application. Tellingly, there was no evidence adduced as to what action the Applicant requested of, or understood was to have been taken by the FWO in relation to her dismissal. Nor was there an explanation provided as to the reason for the period of delay between the Applicant’s last contact with the FWO on 3 July 2018 and her meeting with the Legal Service on 23 July 2018.
The Applicant may well have been confused but such confusion is not unusual, special or out of the ordinary course of events. Such confusion could have been resolved by the Applicant conducting appropriate inquiries and/or research on the Commission’s website. Mere ignorance of the requirements in filing an unfair dismissal application does not in itself constitute an exceptional circumstance as made clear by the Full Bench in Nulty where it stated at paragraph [14] as follows:
“[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 to 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.”
For the reasons outlined above, I am not satisfied that the Applicant’s claimed confusion and ignorance of unfair dismissal filing requirements is a reasonable explanation for the period of delay in lodging her application. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(b): whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of her dismissal on 28 June 2018 via an email from Mr Amir Massoud of Masscorp Accountants on behalf of the Respondent.[9] The Applicant confirmed in her evidence that she was aware of the dismissal on the day it took effect on 28 June 2018. Consequently, she had the full 21 days within which to file her application. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(c): any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[10]
The Applicant initially contacted FWO on 29 June 2018 and made a further call to them on 3 July 2018 in relation to underpayment of wages concerns she held. The Applicant states that her disputing of her wages was evidence of her disputing her dismissal.
While the Applicant did pursue her underpayment of wages concerns and claims to have been confused regarding the FWO’s role, there was no evidence that the Applicant sought to contest the dismissal, other than by her subsequently lodging an unfair dismissal application on 24 July 2018. I am not persuaded that the Applicant’s action in raising wages underpayment concerns with FWO constitutes action taken to contest the dismissal. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(d): prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[11] The Applicant made no submissions on this issue.
The Respondent stated that following the Applicant’s dismissal, no new employees had been employed and that the Respondent and his wife had been forced to work additional shifts to cover the Applicant’s dismissal.
Given the circumstances and the short period of delay in filing of the Application, I am not persuaded that the Respondent will suffer prejudice that is out of the ordinary in circumstances of a contested unfair dismissal for which an out of time application has been made. It is therefore a neutral consideration.
Section 394(3)(e) the merits of the application
When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[12], it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[13] for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.
In her Form F2 – Unfair Dismissal Application form, the Applicant stated that she was dismissed for coming late to work and talking on her mobile telephone whilst at work. She also referred to the email she received on 28 June 2018 that detailed the reasons for her dismissal as follows:
“Pursuant to Clause-44, your employers have immediately terminated you without notice due to:
a. Negligence in carrying out your duties by arriving late on several occasions without any valid explanation;
b. Negligence in carrying out your duties by not reporting for work on several occasions without any valid explanation;
c. Committing an act of misconduct by speaking on your mobile phone on several occasions while on duty”.
The Applicant claims that there was no formal discussion with her regarding the alleged performance issues and further claims that she was dismissed following her raising wages underpayment issues with the Respondent on 26 June 2018.[14]
The Respondent states that Applicant had been verbally warned on a number of occasions regarding her attendance and mobile telephone use at work. The Respondent also states that during a conversation with the Applicant on 27 May 2018, it was agreed that the Applicant that could take a period of two months off at the Applicant’s request, such request according to the Respondent, being due to a need expressed by the Applicant to take leave for exams.
The Applicant disagrees with the Respondent’s evidence and claims that the period of leave sought was only two weeks. In any case, the Applicant did not work in the Respondent’s business in the four week period following the discussion of 27 May 2018. The Applicant concedes that she did however work in her second job on a casual basis during that four week period. The Respondent claims that it became aware that the Applicant was continuing to work in a second job and that this awareness caused Mr Attiah to distrust the Applicant’s honesty. The Respondent decided to then terminate the Applicant’s employment on 28 June 2018.
The Respondent’s version of events cannot be easily reconciled with the stated reasons for the Applicant’s dismissal as contained in the email of 28 June 2018, which referred to the Applicant’s poor attendance and use of her mobile telephone while at work as the reasons for her dismissal. The Applicant did not attend work from the 27 May 2018, by agreement of the Respondent, up until the date of her dismissal on 28 June 2018. If her dismissal was justified on the grounds relied on in the termination letter, it is difficult to understand why the Respondent waited four weeks from the date when the Applicant last worked before acting on their concerns.
The only further contact between the Applicant and Respondent between 27 May 2018 and the date of her dismissal was via the email sent by the Applicant to the Respondent on 26 June 2018 in which she raised concerns over underpayment of her wages. The Respondent denied the claim of underpayment of wages raised by the Applicant motivated the decision to dismiss her.
While I am not able to make a final assessment of the merits, as clearly there are factual disputes between the parties that have not been tested, it cannot be said that the Applicant’s case has no merit. An adverse inference may be drawn from the timing of the underpayment of wages issue being raised with the Respondent by the Applicant and the termination of her employment two days later.
I am satisfied on the limited material before me that the Applicant’s case is of sufficient merit to weigh in favour of a finding of exceptional circumstances.
Section 394(3)(f): fairness as between the person and other persons in a similar position.
In Wilson v Woolworths,[15] it was said of this consideration:
“It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically.”[16]
More recently the question of fairness as between the Applicant and other persons in a similar position has been considered in Morphett v Pearcedale Egg Farm,[17] as follows:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
No submissions were made by either part on this issue and on that basis I consider this factor to be a neutral consideration.
Conclusion
Having taken into account the matters specified at s 394(3)(a) to (f) of the Act, insofar as they are relevant in the circumstances, I am not satisfied that there are exceptional circumstances such as to allow a further period for the substantive application to be made. In reaching this conclusion, I have found that while the merits of the case may weigh in favour of granting the application, all other factors either weigh against or are neutral considerations.
The application for an extension of time is refused and therefore the unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
M Saha on her own behalf.
A Massoud on behalf of the Respondent.
Hearing details:
2018.
Melbourne.
September 21.
<PR700702>
[1] (2011) 203 IR 1.
[2] [2018] FWCFB 901.
[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v
Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood
Organic [2016] FWCFB 349 at [29]-[31].
[5] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].
[6] Exhibit A1, Witness Statement of Ms Moumita Saha, dated 20 September 2018 at paragraphs [12] – [13] and Exhibit A3.
[7] Exhibit A8.
[8] Exhibit A1 at paragraphs [16] – [18].
[9] Form F2 – Unfair Dismissal Application of Ms Moumita Saha, dated 24 July 2018, Annexure 1.
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
24 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
26 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
27 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[14] Exhibit A5.
28 Wilson v Woolworths[2010] FWA 2480.
29 Wilson v Woolworths[2010] FWA 2480 at [29].
30 Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29].
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