Mr Chanhoon Kang v Kerr Engineering Pty Ltd

[2014] FWC 2108

[2014] FWC 2108

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Chanhoon Kang
v
Kerr Engineering Pty Ltd
(U2013/15686)

COMMISSIONER CLOGHAN PERTH, 1 APRIL 2014

Unfair dismissal.

[1] On 8 November 2013, Mr Chanhoon Kang (Mr Kang or Applicant”) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Kerr Engineering Pty Ltd (Employer).

[2] Mr Kang alleges that he was dismissed by Kerr Engineering Pty Ltd on 24 April 2013.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (“FW Act”).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect pursuant to paragraph 394(2)(a) of the FW Act.

[5] Mr Kang has not made the application within 21 days after the dismissal took effect. However, pursuant to s.394(2)(b) of the FW Act, the Commission can allow for a further period for the application to be made (that is, 8 November 2013), 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.

[6] I advised the parties that I intended to deal with the issue of whether there are exceptional circumstances to allow Mr Kang to file his application on 8 November 2013 by way of written submissions.

[7] On 7 February 2014, I issued procedural directions to enable the Applicant to make a submission pursuant to s.394(3) of the FW Act that exceptional circumstances existed for the Commission to be satisfied that the application be lodged on 8 November 2013.

[8] The Applicant was required to make a submission on 21 February 2014 and the Employer to provide a response by 10 March 2014. Should he wish, Mr Kang was able to provide a response to the Employer’s submission by 13 March 2014.

[9] The Applicant has addressed the criteria in s.394(3) of the FW Act in seriatim as follows.

Reason for the delay

[10] The reason for the delay was that Mr Kang was unaware of the Commission, how to make a complaint or whether he could gain assistance from other organisations.

[11] Mr Kang was also concerned that should he pursue an application for unfair dismissal, it would affect his co-workers who were also 457 Visa holders.

[12] Finally, when contacted by the Department of Immigration and Border Protection (Department) in November 2013 and relaying his circumstances, the Department advised him to make application to the Commission.

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

[13] The Applicant concedes he was made aware of his dismissal on 24 April 2013.

Any action taken by the person to dispute the dismissal

[14] For the reasons outlined in paragraphs [10-12] above, the Applicant did not take any action to pursue his dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[15] The Applicant is unaware of whether the delay prejudiced the Employer.

Merits of the application

[16] Mr Kang asserts that his dismissal was unfair.

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

[17] Mr Kang does not directly address this issue but contends that many other workers have been unfairly dismissed by the Employer.

EMPLOYER’S SUBMISSION

[18] The Employer submits that:

● the Applicant has worked in Australia for seven (7) years and finds it implausible that he was unaware of the Commission;

● it reported to the Department the same week Mr Kang failed to turn up for work and contends that the Applicant made the application because the Department has “made a case against Mr Kang”;

● Mr Kang was not dismissed but chose to leave; and

● Mr Kang’s co-workers ceased employment due to a lack of work.

CONSIDERATION

[19] The inescapable fact is that Mr Kang was dismissed on 24 April 2013 and did not make application to the Commission until approximately 6.5 months later.

[20] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“...a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[21] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[22] The vast majority of employees who do make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”. In my view, Parliament’s prescription of having applications filed within 21 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.

[23] The burden lies with Mr Kang to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[24] The Applicant’s reasons for the delay appear to be categorised into two aspects; unawareness of the Commission and concern for his co-workers who were also 457 Visa holders.

[25] The fact that the Applicant has made an application to the Commission alleging unfair dismissal presupposes that after the unfair dismissal he would make enquiries as to whether he can seek a remedy for that alleged unfair dismissal. Further, that Mr Kang would have taken action to contest that alleged unfair dismissal expeditiously. Mr Kang, on his written submissions, has done neither. Mr Kang claims that he acted only after receiving contact from the Department. Consequently, his action to contest the unfair dismissal was “triggered” by the actions of a third party to the employment relationship.

[26] Whether it was ignorance, apathy or some other reason for the delay, I am not satisfied that this is a valid reason in Mr Kang’s case. In my view, the longer delay in lodging an application, the more compelling and substantive the reasons for the delay need to be. The facts are that Mr Kang did nothing to pursue his alleged unfair dismissal and for over six months left it in the hands of chance.

[27] Mr Kang’s other reason is that if he pursued the application for unfair dismissal, it may have prejudiced other 457 Visa holders working for the Employer. This reason infers that he was aware that he could make an application for unfair dismissal but chose not to do so because it may have prejudiced his former work colleagues. This second reason is, in part, contrary to his primary explanation for the delay - lack of awareness - but is also mere speculation.

[28] For the above reasons, I am not satisfied that there is a satisfactory reason for the delay of approximately 6.5 months in filing the application.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[29] There is no dispute between the parties that Mr Kang’s employment ceased on 24 April 2013.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[30] The Applicant took no action to dispute his dismissal until making application to the Commission on 8 November 2013.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[31] While the Employer has not addressed this criterion, the passage of a relatively long period of time between the ending of the employment relationship and the matter being referred to the Commission, leads to a sound inference that recollection of events will be impaired (Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 at 300-301). “Long delays” give a “general presumption of prejudice” (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541). I am satisfied given the circumstances of the delay, that the general presumption of prejudice against the Employer should apply.

Paragraph 394(3)(e) - the merits of the application

[32] The plain fact is that I have insufficient material on which to make a determination in relation to this criterion. For this reason, I adopt a neutral view as to the merits of the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[33] This criterion is not relevant to the circumstances of this application.

CONCLUSION

[34] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed for the application to be filed beyond the statutory timeline of 21 days after the dismissal took effect. Accordingly, the application must be dismissed. An order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

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