Mr Christian Atoche v Crown Sydney Pty Ltd
[2024] FWC 2156
•15 AUGUST 2024
| [2024] FWC 2156 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Christian Atoche
v
Crown Sydney Pty Ltd
(U2024/7136)
| DEPUTY PRESIDENT CROSS | SYDNEY, 15 AUGUST 2024 |
Application for an unfair dismissal remedy – representative error – misleading termination letter – 1 day late – acceptable reason for the delay – exceptional circumstance established – application to proceed.
On 20 June 2024, Mr Christian Atoche (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with Crown Sydney Gaming Pty Ltd (the Respondent) on 7 August 2023, and his employment was terminated by the Respondent on 29 May 2024.
Unfair Dismissal 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. As the dismissal took effect on 29 May 2024, an application for a remedy should have been lodged by no later than 19 June 2024. The Application was therefore lodged outside of the time prescribed and was lodged one (1) day after the last day on which such an application could have been made.
On 16 July 2024, I made the following Directions:
1. By no later than 4:00PM on 23 July 2024, Mr Christian Atoche (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
· The reason(s) for the delay;
· Whether Mr Christian Atoche first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between Mr Christian Atoche and any other persons in a similar position.
2. By no later than 4:00PM on 30 July 2024, Crown Sydney Pty Ltd (the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue.
3. By no later than 4:00PM on 6 August, the Applicant is directed to prepare a signed witness statement in reply to the Respondents material. Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.
The parties complied with the Directions for the filing of evidence. In particular:
(a) On 22 July 2024, the Applicant filed an Outline of Submissions (the Applicant’s Submission) and Statements from the Applicant and the Applicant’s representative, Mr. Sean Howe, Lead Industrial Officer with the UWU;
(b) On 1 August 2024, the Respondent filed an Outline of Submissions (the Respondent’s Submission) and a Statement from Ms Jodie Ringma; and
(c) On 8 August 2024, the Applicant filed an Outline of Submissions in Reply (the Applicant’s Reply Submission) and a second Statement from the Applicant.
The Hearing took place 10:00am on Wednesday, 14 August 2024.
Background Facts
The Applicant was employed by the Respondent from 31 May 2023 until 29 May 2024 as an Event Services Manager. It was accepted by the parties in the Hearing that English was not the first language of the Applicant, and that he is a foreign national.
On 24 May 2024, the Applicant attended a meeting with the Respondent to discuss his return to work after he had been absent from work for a period of time on workers compensation arising from an alleged a psychological injury sustained in the Respondent’s workplace.
On 29 May 2024, the Applicant attended a further meeting with the Respondent, which was a show cause meeting regarding why his employment with the Crown should not be terminated. At the conclusion of that meeting the Applicant was verbally advised that his employment with the Respondent was terminated effective immediately due to his inability to perform the inherent requirements of his role.
On 31 May 2024, the Applicant received a letter from the Respondent (the Termination Letter) in the following terms:
31 May 2024
Via email to …
Dear Christian,
Letter of Termination
We refer to our recent meeting which took place on Wednesday 29 May 2024 in relation to your employment in your role of Events Service Manager with Crown Sydney. It is noted that this meeting was a continuation of our outcome meeting which commenced on Friday 24 May 2024.
Crowns concerns
Further to your ongoing absence from the workplace, Crown requested further medical information and advice from the treating practitioner following your Certificate of Capacity dated 16 February 2024. The purpose of this request was to understand your capacity to perform the inherent requirements of your position in a safe and sustainable manner, as well as provide guidance regarding any recommendations which may be required to optimise your work capacity.
Following receipt of the medical report, Crown arranged to meet to address the advice provided by the treating practitioner. During both meetings on 24 May 2024 and 29 May 2024, you agreed and acknowledged the advice of the treating practitioner advising you would be unable to return to your pre-injury position as Events Service Manager. You were provided with multiple opportunities to share any additional information in relation to this advice, specifically why your employment should not be terminated on the basis of this report. Given these factors, including the treating practitioners assessment, Crown had serious concerns about your ability to return to work within a reasonable timeframe and subsequently your ability to perform the inherent requirements of your role as an Events Services Manager in the foreseeable future.
Outcome
In consideration of all the circumstances and factors above, including your responses during recent meetings, the business has made the decision to terminate your employment due to your inability to perform the inherent requirements of your role as an Events Service Manager.
You are required to return any of Crowns property as soon as practicable. We also take this opportunity to remind you of your ongoing obligations to Crown, including (without limitation) in respect of its confidential information and intellectual property.
Your final day of employment is 29 May 2024. Following the termination of your employment, you will be paid any unpaid salary owing to you, as well as any accrued but unused annual and long service leave to which you may be entitled. You are reminded that you are not permitted to undertake any gambling activities at Crown Resorts Group for a period of six months following the termination of your employment.
[Various emphasis added]
On 4 June 2023, the Applicant contacted his Union, the United Workers Union (the UWU), for advice about the effect that his termination would have on his workers compensation payments. The UWU referred the Applicant to a workers compensation solicitor for advice.
On 13 June 2024, the Applicant again contacted the UWU for advice about the termination of his employment. In the Hearing the Applicant accepted this was the first time he took steps regarding any unfair dismissal. He spoke to someone from the UWU who told him that his case would be referred to an industrial officer, who would assist him. The Applicant was told he needed to provide further information.
On 17 June 2024, the Applicant provided materials to the UWU including the Termination Letter.
On 18 June 2024, Mr Howe received a written referral from Shimi Witkop, who is Lead member Rights Officer of UWU regarding the Applicant. The referral form identified on the first page the “deadline” to be 21/6/24, the termination date as being 31 May 2024, and that the was “dismissed” on 31 May 2024.
Mr Howe read the referral at the time it was provided to him, and formed the view that an application pursuant to either s.365 or s.394 of the Act should be filed by no later than 21 June 2024. Mr Howe did not read the materials provided by the Applicant to the UWU.
On 20 June 2024, Mr Howe opened a file in respect of the Applicant’s dismissal and allocated it to an industrial officer in his team. While opening the file he reviewed the Termination Letter. On reading that letter, Mr Howe realised that while the Termination Letter was dated 31 May 2024, it confirmed a dismissal that had been effective on 29 May 2024.
Mr Howe stated that it is not common, but not completely rare, for referrals to identify an incorrect date of dismissal, and that it is his general practice not to form a view on the date of dismissal, before he has read any letter of termination issued by an employer. He did not do so in respect of the Application, and that was his error.
On 20 June 2024, Mr Howe advised industrial officer in his team about his error, and she filed the Application, seeking an extension of time, that afternoon.
On 20 June 2024, the Applicant was contacted by an industrial officer who confirmed that the UWU would assist him with filing an unfair dismissal case, but that the Application was one day out of time.
Consideration
Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:
“(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).”
As the Application was lodged outside of the 21-day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:
“(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 structure of s.394(3) 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.
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.394(3) of the Act, there are exceptional circumstances.
(a) Reason for the delay
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 [2014] FWC 479 stated at [30]:
“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.”
A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:
“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.”
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.
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.
The Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.
On 31 May 2024, the Respondent issued the Termination Letter to the Applicant. The Termination Letter was, to any reasonable person, let alone one without English as their first language, confusing. On its face it indicated it was a letter of termination of employment dated 31 May 2024. It was only on the second page that it indicated a termination date of 29 May 2024.
Whilst the UWU submits it is entirely responsible for the delayed filing of the Application, I find that an inescapable factor for the delay is the text and content of the Termination Letter. The Termination Letter is misleading and needs to be viewed as a live factor for consideration when assessing the late filing of the Application. That incorrect termination date was first relied upon in the written referral within the UWU dated 18 June 2024.
The Applicant’s primary submission was that the sole cause of the error was representative error, being a miscalculation of the final date for filing the Applicant’s unfair dismissal application based on a misreading of the date on which the Applicant’s termination of employment by the Respondent took effect in the Termination Letter.
The relevant principles of representative error were established in Clark v Ringwood Private Hospital (Clark).[1] In Davidson v Aboriginal & Islander Child Care Agency (Davidson);[2] a Full Bench of the Australian Industrial Relations Commission summarised the principles of representative error as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i)Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii)A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii)The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv)Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.”[3]
It is clear from the principles of representative error that an assessment of the conduct of the Applicant will be a central consideration, particularly whether the Applicant is blameless for the delay occasioned. I consider the delay in this matter can be wholly attributed to the Applicant’s representative, and the misleading nature of the Termination Letter that resulted in a miscalculation of the final date for filing the Applicant’s unfair dismissal application based on a misreading of the date on which the Applicant’s termination of employment by the Respondent took effect.
The Respondent submitted that the Applicant acted slowly, and did not act promptly as he did nothing regarding any allegation of unfair dismissal for “over two weeks”. I reject that submission. There can be no criticism for acting only within the last week of a three week period. Any such action is within time, and ordinarily not a period requiring explanation. Were there not the confusion regarding the termination date I consider the Application would have been made within time.
The Respondent also submitted that by 20 June 2024, the UWU still did not have instructions to file the Application, and whatever instructions were received were after the expiry of the 21 day period. That state of affairs can also be attributed to the confusion regarding the termination date. I consider it to be of particular note, and in the Applicant’s favour, that once the representative error was identified it was promptly remedied that same day, prior to 21 June 2024, which was the date the UWU had understood was the last day for filing.
Having regard to the above, I am satisfied that the Applicant has provided an acceptable explanation for the delay, and that is a factor that weighs in favour the Applicant in this matter.
(b) Whether the person first became aware of the dismissal after it had taken effect
This is not a relevant factor in this matter.
(c) Action taken to dispute the dismissal
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application.
In all the circumstances, I do not find that the Applicant took any action with the Respondent to dispute the dismissal after it occurred. I consider this factor is a neutral consideration.
(d) Prejudice to the employer
A delay of one (1) day would not be likely prejudice the employer, and in the Hearing the Respondent accepted this was a neutral consideration. In the circumstances, I consider this consideration to be essentially neutral.
(e) Merits of application
This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.
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 (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:
“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.”
In the matter of Kornicki v Telstra-Network Technology Group[4] a predecessor of the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. 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.”[5]
I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.
(f) Fairness as between the Applicant and other persons in a similar position
In Dean- Villalobos v QGC Limited T/a QGC,[6] Commissioner Asbury (as she then was) considered circumstances in which the Applicant provided instructions to their legal representative to file within the allowable time. The Commissioner noted at [146]:
“As a general rule, persons who provide clear instructions to legal representatives and execute necessary documents in a reasonable time frame to allow them to be filed within time limits under the Act should not be prejudiced because of failure on the part of those legal representatives to comply. It is not unfair to other persons in the same position as the Applicant in this case, to extend the time limit for filing the application.”
The Applicant is such a person. No part of the mistake as to termination dated can be attributed to the Applicant. He acted promptly within the 21 day time period.
In relation to this factor, I find that fairness between the Applicant and others in a similar position is a factor weighing in favour of a finding of exceptional circumstances.
Conclusion
As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight, being acceptable reason for delay, and fairness between similar persons, both weigh in favour of a conclusion there are exceptional circumstances. None of the factors weigh against such a conclusion.
I am persuaded therefore that there are exceptional circumstances. The Respondent did not raise any issue which might persuade me not to exercise my discretion notwithstanding that I have concluded there are exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant that conclusion.
The Application for extension of time is granted, and the time by which the Application may be filed is extended to 11.59pm on 21 June 2024. An Order to this effect will be issued.
DEPUTY PRESIDENT
Appearances:
Ms A van Gent on behalf of the Applicant.
Mr D Fawcett of Counsel, on behalf of the Respondent.
Hearing details:
Microsoft Teams.
10:00AM.
14 August 2024.
[1] Clark v Ringwood Private Hospital (1997) 74 IR 413.
[2] Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1.
[3] Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1, 6.
[4] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[5] Ibid.
[6] [2013] FWC 1537.
Printed by authority of the Commonwealth Government Printer
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