Mr Andy Tan v Pormpur Paanthu Aboriginal Corporation

[2017] FWC 501

[2017] FWC 501

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Andy Tan
v
Pormpur Paanthu Aboriginal Corporation
(C2016/7678)

COMMISSIONER SAUNDERS NEWCASTLE, 27 JANUARY 2017

Application to deal with contraventions involving dismissal – extension of time refused

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Andy Tan (the applicant) a further period for his general protections application (the Application) to be made.

The Hearing

[3] On 24 January 2017, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant, together with his housemate, Ms Laura Ramirez, gave evidence in support of his application for an extension of time. The respondent called evidence from its Chief Executive Officer, Ms Ganthi Kuppusamy, and Senior Clinical Psychologist, Mr Marcin Ohl.

Legislative Scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”

Consideration

Paragraph 366(2)(a) – reasons for delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] There must be an acceptable reason for the delay in making the general protections application. 7

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[11] The delay required to be considered is the period beyond the prescribed 21 day period for making 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. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“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.”

Relevant chronology of events and reasons for delay

[12] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 10 August 2016.

[13] The 21 day time period for the applicant to make his Application expired on 31 August 2016. 12 Given that the applicant filed his Application on 30 December 2016, the Application was 121 days late.13

[14] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 31 August 2016 to 30 December 2016. However, the circumstances from the time of the dismissal (10 August 2016) 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.

[15] The applicant relies on the following reasons for failing to file his Application within 21 days from when his dismissal took effect:

(a) First, the applicant alleges that the respondent threatened him on the date of his dismissal and he was told by the CEO, Ms Kuppusamy, that if he lodged a complaint with the Commission the respondent would withdraw his visa application; and

(b) Secondly, it took some time for the applicant to seek advice regarding his dismissal due to being forced to wait for appointments with Legal Aid, the Caxton Legal Centre and the Refugee and Immigration Legal Service (RAILS) and he was subsequently advised that there was nothing he could do.

[16] As to the first reason relied on by the applicant, he further explained his delay in making his Application in the following way in his outline of argument:

“I was coerced by my boss that if I report to fair work commission, she would inform the immigration to cancel my visa. This is coercion and a clear violation of guideline 343. I have reported it to legal aid in January 2017 and had inform me to report this matter once it has proceed to court case. Secondly, when I was an uber driver, I picked up a lawyer in November 16 and was advised by them to report this matter asap as my employer was dodgy and I should report this incident so that other victim would not fall into their trap. I was about to report this matter early December when I received call from immigration that my visa was refused. I had to talk to Refugee and Immigration Legal Service to sort out my visa so that I can be granted some extension to resolve this fair work matter. I have attached my immigration paper work to show that my visa has been refused. Therefore, I would like the commission and the public to be aware of this incident.”

[17] The applicant gave evidence to the effect that during the termination meeting on 10 August 2016 the respondent did not explain the reasons for his dismissal and, when questioned, the respondent threatened to cancel the applicant’s visa should he report his dismissal to the Commission. The applicant contends that the respondent was holding his visa as a “ransom” to keep him quiet and was using “delaying tactics” to prevent the applicant from filing a claim with the Commission. The applicant gave evidence to the effect that this psychological threat concerning his visa caused him to “live in the shadows” and gave him a lot of anxiety.

[18] The respondent denies these allegations. Ms Kuppusamy gave evidence to the effect that, during the meeting on 10 August 2016, she advised the applicant his employment contract would not be extended after the conclusion of his probationary period as “things were not working out”. Ms Kuppusamy claims that the applicant asked her not to disclose to the Department of Immigration that he had been terminated. Ms Kuppusamy gave evidence that she informed the applicant that she could not lie about his employment status if she was questioned by the Department of Immigration.

[19] I prefer Ms Kuppusamy’s evidence in relation to this conversation on 10 August 2016 over the evidence given by the applicant, for the following reasons:

(a) Ms Kuppusamy’s version of events is consistent with what happened on 17 November 2016. That is, on 10 August 2016 Ms Kuppusamy says she told the applicant that she could not lie about his employment status if she was questioned by the Department of Immigration. On 17 November 2016, Ms Kuppusamy says she was contacted by the Department of Immigration and was asked whether the applicant was still employed by the respondent and she told the truth by confirming he was no longer employed by the applicant. Ms Kuppusamy says she then contacted the applicant by telephone as a matter of courtesy to tell him what she had told the Department of Immigration. On about 5 December 2016, the applicant received a letter dated 2 December 2016 from the Department of Immigration and Border Protection advising him that his visa application had been refused. This timing of events is consistent with the Department of Immigration being told by Ms Kuppusamy on 17 November 2016 that the applicant was no longer employed by the respondent;

(b) If the applicant was holding back filing his Application on the basis of a threat from the respondent that they would cancel his visa application if he contacted the Commission, there was no reason for him to delay filing his Application once he was told by Ms Kuppusamy on 17 November 2016 that the Department of Immigration knew he was no longer working with the respondent. Yet the Application was not filed by the applicant until 30 December 2016, which was about 6 weeks after 17 November 2016 and about 25 days after the applicant received the letter from the Department of Immigration on 5 December 2016;

(c) The accusation that the respondent’s CEO threatened to cancel the applicant’s visa should he report his dismissal to the Commission is a serious one. I consider it unlikely that a CEO would make such a threat to the applicant for two reasons. First, the CEO had no power to cancel the applicant’s visa; the most she could do would be to inform the Department of Immigration that the applicant was no longer employed by the respondent. Secondly, the CEO had little to gain and a lot to lose by making such a threat. In particular, the applicant had only been employed by the respondent for less than six months. He was dismissed during his probationary period. The risk to the respondent in connection with a claim by the applicant in those circumstances was not high. However, if the CEO of a not for profit organisation such as the respondent was found to have made such a threat to the applicant, she would lose her job and her reputation would be damaged to a significant extent; and

(d) One of the arguments made by the applicant in support of his contention that Ms Kuppusamy is lying about the 10 August 2016 is that Ms Kuppusamy stated in her witness statement that she did not communicate with the applicant by any means after 10 August 2016 until 17 November 2016. The applicant produced telephone records to show that he had been in communication with Ms Kuppusamy in October 2016. During her oral evidence Ms Kuppusamy stated that, in light of the telephone records, she would need to amend her earlier statement to say that she could not recall any communications with the applicant in the period from 10 August 2016 until 17 November 2016, but she may have spoken to him in that time. I accept Ms Kuppusamy’s evidence in that regard. She readily made the concession and it would be a simple matter to not recall a few short telephone conversations over a period of about three months.

[20] As to the second reason relied on by the applicant, the applicant gave oral evidence to the effect that he had to “research into all situations” and, because he could not afford a lawyer, he attempted to seek advice from RAILS, the Caxton Legal Centre and his union, the Australian Workers’ Union. The applicant made oral submissions to the effect that he had to make appointments with these organisations and was forced to wait some time in order to seek advice from them. The applicant was subsequently advised that there was nothing he could about the termination of his employment.

[21] The applicant became an Uber driver following the termination of his employment with the respondent, and gave evidence to the effect that in November 2016 he picked up a passenger who was a lawyer. The applicant submitted that this passenger advised him that it was illegal for an employer to coerce an employee to not report a claim to the Commission.

[22] The applicant further submitted that he was about to report the matter to the Commission in early December 2016 but he then received news that his visa application had been refused. Following this the applicant sought further advice from RAILS to extend his visa so that he could report this matter to the Commission. It took some time to get that advice. In mid to late December 2016 the applicant contacted the Commission to seek further information and advice about his dismissal, at which time he was informed that he could file a general protections application and apply for an extension of time. He did so on 30 December 2016.

[23] Notwithstanding the delays the applicant says were incurred by him seeking advice from various organisations, in October 2016 he spoke to two former employees of the respondent. One of the matters he discussed with them was taking the respondent to the Commission. Accordingly, the applicant was aware from at least October 2016 of the possibility that he might be able to take some action against the respondent in the Commission.

[24] The matters the applicant relies on for the delay in filing his Application, as summarised in paragraphs [15] to [23] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon. Further, the applicant has not provided an adequate explanation for the whole period of his delay in filing his Application. I find that this factor (s.366(2)(a)) weighs against granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[25] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 14

[26] During the termination meeting on 10 August 2016, the applicant questioned the dismissal and asked for a reason as to why he was being terminated. By doing so the applicant took action to dispute his dismissal.

[27] This factor weighs in favour of granting the applicant an extension of time.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[28] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16

[29] A long delay gives rise “to a general presumption of prejudice”. 17 The period of the delay in this matter was 121 days. That is a long period of delay.

[30] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 18 No such evidence was adduced by the respondent in this case. The respondent contends that it has been prejudiced, and will continue to be prejudiced if time is extended, by reason of the costs it has incurred, and may continue to incur, in defending the Application.

[31] In all the circumstances of this case, I am satisfied that prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[32] The applicant contends that his employment was terminated as a result of him exercising a workplace right and contends that the respondent has contravened sections 340, 343, 344, 351 and 358 of the Act in various ways.

[33] The Application does not reveal the conduct said to constitute the basis of his claim under s.358 of the Act, nor was any such information revealed in the applicant’s outline of argument or his evidence. The applicant has explained the alleged contraventions of sections 340, 343, 344 and 351 of the Act as follows:

(a) First, the applicant contends that he had a back injury, and due to this injury, the applicant advised the respondent that he was no longer able to carry heavy loads. The applicant claims he was dismissed in contravention of s.351 of the Act as a result of being discriminated against due to his physical disability;

(b) Secondly, the applicant contends that the respondent failed to provide a protection to him in contravention of s.340 of the Act, insofar as he claims he was a whistle-blower and informed the respondent that one of his colleagues was consistently late for work and took longer lunch breaks in breach of company policy. After reporting this to the respondent, the applicant claims that he was victimised and people started to gossip about him;

(c) Thirdly, the applicant contends that the respondent forced him to sign a new employment contract under duress, in breach of s.344 of the Act. The applicant claims the respondent warned they would review his work sponsorship visa if the applicant did not sign the new contract; and

(d) Fourthly, the applicant contends that the respondent contravened s.343 of the Act by threatening to inform the Department of Immigration to cancel his visa if the applicant was to report the respondent to the Commission.

[34] The respondent denies the applicant’s contention that it has contravened any provision in the Act and submits that the applicant was dismissed during his probation period for reasons of poor performance and misconduct.

[35] The resolution of the contested factual questions concerning the reason(s) for the respondent’s actions, including its decision to dismiss the applicant’s employment, will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application insofar as it relies on an alleged contravention of sections 340, 343, 344 and 351 of the Act is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[36] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 19 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[37] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[38] Having taken into account the matters referred to in paragraphs [12] to [37] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[39] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

2017.

Newcastle:

January, 24.

Hearing details:

Mr A Tan on his own behalf;

Ms A Curtis, Employment Relations Claims Adviser from Employsure, on behalf of the respondent.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Secction 366(2) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   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]

 11   [2016] FWCFB 349 at [31]

 12   That is, 21 days from 10 August (not including 10 August) is 31 August 2016.

 13   That is, 30 December 2016 is 121 days after 31 August 2016.

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 15   Ibid.

 16   Ibid.

 17   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 18   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 19   [2016] FWCFB 6963

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