Mr Cedric Kato v Protecht Group

[2020] FWC 3511

[2020] FWC 3511

FAIR WORK COMMISSION

DECISION

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

Mr Cedric Kato
v
Protecht Group
(C2020/2796)

DEPUTY PRESIDENT CROSS SYDNEY, 3 JULY 2020

Application to deal with contraventions involving dismissal.

[1] At 00.00am on 24 April 2020, Mr Cedric Moses Kato (the “Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant was employed, by Protecht Group Pty Ltd (the “Respondent”). The Applicant commenced his employment with the Respondent on 6 January 2020. His dismissal took effect on 2 April 2020, and he was notified of his dismissal on that date.

[2] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 23 April 2020. The Application was signed and dated 23 April 2020, however it was received a matter of seconds late on 24 April 2020. The application was therefore lodged outside of the time prescribed and was lodged one day after the last day on which such an application could have been made.

[3] The Respondent originally objected to the application on the basis that it was out of time. However, on 1 June 2020, the Respondent’s Legal Representatives sent correspondence to my Chambers that included the following:

“Although our client denies the factual allegations made against it in the Applicant’s correspondence of 7 May 2020, we are instructed to withdraw its objection to the extension of time. “

Relevant Facts

[4] Although the Respondent’s objection to an extension of time was withdrawn, it is necessary for me to consider whether exceptional circumstances exist to warrant the granting of an extension of time. The Applicant provided a number of submissions on 7 May 2020, approximately three weeks prior to the Respondent withdrawing their objection to an extension of time.

[5] The first reason for the delay that was advanced by the Applicant involved significant and impactful emotional and psychological issues in relation to his relationship breakdown. These issues occurred tangentially to the termination, or the perceived threat of termination, of the Applicant’s employment.

[6] The Applicant attended a number of meetings with an employee of the Respondent; “Soe”. On the 24 February 2020, during a meeting with Soe the Applicant was allegedly notified of the Respondent’s decision to terminate his employment.

[7] As the “primary breadwinner of the family” the Applicant noted that the prospect of losing his job whilst his wife was pregnant during the COVID-19 pandemic was too much stress too bear.

[8] During meetings conducted on both the 9 and 11 March 2020, the Applicant was advised by Soe that his employment was not terminated, and that his performance had in fact been “very good”.

[9] The Applicant’s employment was ultimately terminated by the Respondent on 2 April 2020.

[10] A number of other reasons were included in the Applicant’s submissions as to why his application was lodged late:

“Financial Hardship

•  I commenced my Financial Hardship Application, this included dealing with Centrelink for assistance, ATO and Colonial First State for access to some funds in my Super. Speaking to Real Estate Agent to negotiate a decrease in rent and speaking with every company we have ongoing expenses with, while also navigating what separation looks like with my family.

•  Like many other individuals, I have registered with Recruitment Agencies and have actively been looking since the termination. 

Professional advice and tech issues

•  Received advice with employment relations legal consultant and based on their review made the decision to commence this general protections application while making sure I had enough funds to pay for the application as well.

•  While looking to lodge the application on the 23rd of April (within 21 days since dismissal) I had a few tech issues submitting on the website which resulted it being submitted after midnight clicking over to the 24th April.

I have not formally reached out to Protecht to resolve as I do have reservations on their ability to be fair in this instance given the above Leadership issues not being addressed and her reason to terminate my employment was taken without any hesitation and commencing any formal complaint with Protecht directly without an external mediator will not be in my best interest.

Once again, I greatly appreciate you taking the time and would strongly hope you will give my above listed reasons strong consideration for my application to continue.”

Consideration

[11] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) of the Act provides:

“366 Time for application

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).”

[12] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[13] It is clear from the structure of s.366(2) of the Act that 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 show exceptional circumstances.

[14] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[15] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd 1:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[16] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd 2:

“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.” (Emphasis added)

[17] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[18] The application was seconds late. Not even a minute had passed since the time for lodging an application had expired. Even if the Applicant’s explanation was limited to technological issues I would have had no difficulty accepting that he had an entirely acceptable reason for the delay. However when the other explanations are considered, the acceptability of the reason for the delay is overwhelming.

[19] I consider the Applicant has advanced an acceptable explanation for the period of the delay, being under one minute. Accordingly, this factor weighs in the Applicant’s favour.

(b) Action taken by the person to dispute the dismissal

[20] The Applicant stated that he did not formally reach out to the Respondent “to resolve as I do have reservations on their ability to be fair in this instance given the above Leadership issues not being addressed and her reason to terminate my employment was taken without any hesitation”. While that may have been a reasonable approach in the circumstances of the matter, no weight can be given to this consideration.

(c) Prejudice to the employer

[21] Neither party made any material submissions on this issue, and the Respondent has withdrawn their objection to an extension of time. In the circumstances of this matter, I consider this factor weighs in the Applicant’s favour.

(d) Merits of application

[22] This is a General Protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and that this action took place because of a prohibited reason.

[23] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd 3:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[24] As these matters are contested, I am unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(e) Fairness between the person and other persons in a similar position

[25] Neither party made any material submissions on this issue. Consequently, no weight can be given to this consideration.

Conclusion

[26] As is evident from the analysis above, of the matters that were the subject of submission, consideration and apportionment of any significant weight, being acceptable reason for delay and prejudice to the employer, both fell in the Applicant’s favour. I consider that as the balance weighs in the Applicant’s favour, exceptional circumstances exist.

[27] Having been persuaded that, in the overall balance, exceptional circumstances exist, I extend the period of time for the filing of the Applicant’s Form F8 Application to 24 April 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720732>

 1  [2014] FWC 479 at [30].

 2   [2018] FWCFB 901 noted at [39].

 3 Unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000. Print T2421 stated at [14].