Mr Enrique Goyeneche v Corporate Cleaning Solutions (Qld) Pty Ltd

[2016] FWC 8387

[2016] FWC 8387

FAIR WORK COMMISSION

DECISION

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

Mr Enrique Goyeneche
v
Corporate Cleaning Solutions (Qld) Pty Ltd
(C2016/6317)

COMMISSIONER SAUNDERS NEWCASTLE, 25 NOVEMBER 2016

Application to deal with contraventions involving dismissal - application for extension of time refused – application dismissed.

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 Enrique Goyeneche (the applicant) a further period for his general protections application (the Application) to be made.

The Hearing

[3] On 23 and 25 November 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant, together with his wife, Ms Elsa Goyeneche, gave evidence through a Spanish interpreter in support of his application for an extension of time. Mr Tim Murray, solicitor from Caxton Legal Centre, also gave evidence in support of the applicant. The respondent called evidence from Mr Justin Ranson, Owner/Manager of the respondent.

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 12 September 2016.

[13] The 21 day time period for the applicant to make his Application was to expire on 3 October 2016. 12 However, 3 October 2016 was a public holiday in Queensland. When the final day of the 21 day period falls on a weekend or a public holiday the timeframe is extended to the next business day.13 Therefore, the time period for the applicant to make his Application expired on 4 October 2016. Given that the applicant filed his Application on 23 October 2016, the Application was 19 days late.14

[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 4 October 2016 to 23 October 2016. However, the circumstances from the time of the dismissal (12 September 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] In his outline of argument, the applicant described the chronology of events and reasons for his delay in filing his Application as follows:

“1. I was dismissed by the Respondent on 12 September 2016.

2. Because the Respondent treated me as a subcontractor I thought that I did not have any rights so I did not think of getting help with my situation straight away.

3. At the time I was dismissed I was also in a lot of pain from my neck and back, as I indicate to the Respondent prior to my dismissal, which affected my ability to concentrate and get help with my legal situation.

4. On 30 August 2016 I had attended a medical specialist on referral by my general practitioner for my neck and back pain (Attachment A).

5. After a time I decided to get advice about my situation so on or about 23 September 2016 I made contact with the Refugee and Immigration Legal Service (RAILS) in West End to seek legal advice in relation to my dismissal.

6. I spoke with a RAILS staff member who told me to that a lawyer would call me the following Monday but I did not receive any call.

7. I called RAILS the following week and was against told to wait for a call from a lawyer, and then the following week, on or about 10 October 2016, I spoke with a Spanish speaking staff member for the first time, who told me to contact Caxton Legal Centre.

8. I then called Caxton Legal Centre and made an appointment to see a lawyer there on 12 October 2016 which was the next available appointment.

9. On 12 October 2016 I called Caxton Legal Centre to confirm my appointment but was told my appointment had to be cancelled and that I should contact Legal Aid.

10. I called what I thought was Legal Aid and spoke to someone but was told, or understood, that I would have to pay to see a lawyer at Legal Aid which I could not afford.

11. I then called Caxton Legal Centre again to rebook and was given an appointment to see a lawyer on 19 October 2016 which was the next available appointment.

12. On 19 October 2016 I attended Caxton Legal Centre and after speaking with a solicitor and interpreter became aware that I could make this application.

13. On 21 October 2016 I again attended Caxton Legal Centre for a further appointment with a solicitor and interpreter for the purpose of preparing the application to the Fair Work Commission.

14. At no time prior to my receiving legal advice on 19 October 2016 was I made aware that

i. according to law, I might be an employee as opposed to subcontractor; or

ii. or the possibility that I could make an application in relation to my dismissal; or

iii. that a time limit of 21 days applies to make an application to the Fair Work Commission with respect to dismissal.”

[16] The applicant also gave oral evidence in relation to the difficulties he encountered in seeking information and free legal advice from a range of sources (including the Refuge and Immigration Legal Service (RAILS), Legal Aid, and the Caxton Legal Centre) in relation to his dismissal by the respondent. Evidence given by the applicant’s wife and Mr Murray corroborated the applicant’s evidence in relation to these matters, as do the mobile telephone records tendered by the applicant. I accept that the evidence given by the applicant, his wife and Mr Murray was truthful and reliable.

[17] In summary, the applicant relies on a combination of the following matters in relation to the delay in filing his Application:

(a) the applicant and his wife come from a non-English speaking background and they have a low level understanding of the English language. The applicant’s poor English resulted in him having a high ignorance of the law (including timeframes for making applications) and caused him to have a significant amount of difficulty obtaining information and free legal advice following his dismissal. Until he received legal advice from the Caxton Legal Centre on 19 October 2016 (with the assistance of an interpreter), the applicant was not aware of the existence of the Commission or the Fair Work Ombudsman, nor was he aware of any time limits in relation to any application that may be available to him or that he may have been engaged by the respondent as an employee rather than as an independent contractor;

(b) the applicant was of the understanding that he was a contractor, as opposed to an employee, and therefore believed he had no rights to pursue a claim against his former employer in relation to the termination of his employment. The applicant delayed seeking legal advice because of this belief. The applicant also contends that the respondent contributed to his mistaken belief concerning his status as an employee because the respondent told him he was a contractor;

(c) the applicant was suffering from a medical condition which deteriorated in the week following his dismissal. In particular, the applicant suffered from headaches, had difficulty concentrating, and could not lift his arms. A specialist report was submitted as evidence in support of the applicant’s medical condition. The applicant says his medical condition contributed to his delay in making his Application, particularly in the period from 12 September 2016 to late September 2016; and

(d) the applicant’s appointment with Caxton Legal Centre, scheduled for 12 October 2016, was cancelled by Caxton Legal Centre, at no fault of the applicant.

[18] While I do have sympathy for the applicant, I am not satisfied on the evidence before me that the applicant’s circumstances were out of the ordinary course, unusual, special or uncommon. The applicant’s lack of capacity from his medical condition provides an adequate explanation for his inaction in the period from 12 September 2016 to his first contact with RAILS on about 23 September 2016. However, the difficulties and delays the applicant encountered in searching for information and obtaining free legal advice in relation to his dismissal were not, in my view, out of the ordinary course, unusual, special or uncommon, even when regard is had to the fact that the applicant speaks very little English and requires an interpreter to understand information and advice given to him about legal matters. As a result of his financial position at the time of his dismissal, the applicant elected to seek free legal advice, rather than the services of a private lawyer as he had in the past on two occasions. That was a reasonable decision for the applicant to make, but it gave rise to not uncommon delays in obtaining free legal advice, including the cancellation of an appointment with the Caxton Legal Centre at no fault of the applicant.

[19] A significant reason for the applicant’s 19 day delay in making his Application was his ignorance of the law, including the timeframes imposed by the Act. Ignorance of the law is not, of itself, an exceptional circumstance. I do not accept the applicant’s argument that a combination of the fact that he speaks and understands very little English and, as a result, he has a very high level of ignorance of the law, together with the other matters relied on by the applicant, demonstrates the existence of exceptional circumstances.

[20] As to the fact that the respondent told the applicant he was a contractor, I accept Mr Ranson’s evidence that he genuinely believes the applicant was not engaged by the respondent as an employee, for reasons that include the fact that the applicant undertook work for the benefit of the respondent through the applicant’s company, Enrique Cleaning Services Pty Ltd. After having received legal advice on about 19 October 2016, the applicant now believes he may have been employed by the respondent. His ignorance of that possibility was part of the reason for the delay in seeking advice and making his Application. However, it is not out of the ordinary course, unusual, special or uncommon for workers to be classified as a contractor and not to realise until they have received legal advice at some later time that they may in fact have been employed by the entity for which they performed work, and for that mistaken belief to cause a delay in any action they may subsequently take.

[21] In circumstances where I do not have the jurisdiction in these proceedings to make a determination as to whether the applicant was employed by the respondent, 15 there is a genuine contest about that matter, and the respondent genuinely believed that it did not employ the respondent at the time it informed him he was a contractor, I am satisfied that the respondent has not set out to deliberately mislead the applicant and that these circumstances, whether considered alone or in combination with other factors on which the applicant relies, were not exceptional.

[22] Accordingly, the reasons for the delay weigh against granting the applicant an extension of time.

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

[23] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 16

[24] After being advised of his dismissal, the applicant sent a number of text messages to the respondent in relation to his dismissal, including the following text message sent at 8:11pm on 12 September 2016:

“Justin, you can’t sack me out from my job with out notice no less than two weeks, until I looking another job [sic] … ”.

[25] By doing so, the applicant took action to dispute his dismissal. Accordingly, 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)

[26] Prejudice to the employer will weigh against granting an extension of time. 17 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.18

[27] A long delay gives rise “to a general presumption of prejudice”. 19

[28] The employer must produce evidence to demonstrate prejudice. No such evidence was adduced in this case.

[29] The period of the delay in this matter was 19 days. That is a medium period of delay.

[30] In all the circumstances of this case, prejudice to the respondent is a neutral consideration.

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

[31] The applicant contends that his employment was terminated because he had, and exercised, workplace rights. In particular, the applicant contends he had workplace rights in relation to paid personal leave, the ability to initiate workers compensation proceedings, the ability to make a complaint or inquiry in relation to his employment, and the right to be paid, in full, for the performance of work at least monthly. The applicant also contends that he exercised his workplace rights by making inquiries or complaints in relation to payment of his wages at least monthly and the payment of Sunday penalty rates. The applicant also contends that he was dismissed because he had a disability in connection with his neck pain.

[32] The respondent denies these assertions and contends that it dismissed the applicant for failing to provide a cleaning service to an acceptable standard and failing to invoice correctly.

[33] The resolution of the contested factual and legal questions concerning the applicant’s status as an employee or contractor and the reasons for the applicant’s dismissal 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 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

[34] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 20 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.”

[35] 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

[36] Having taken into account the matters referred to in paragraphs [12] to [35] 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.

[37] 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:

Mr T Murray, Solicitor from Caxton Legal Centre, on behalf of the applicant;

Mr M Lynch, Solicitor Director from Gorval Lynch, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

November, 23 & 25.

 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 12 September 2016 (not including 12 September) is 3 October 2016.

 13   Acts Interpretation Act 1901 (Cth) ss.36(2)-(3)

 14   That is, 23 October 2016 is 19 days after 4 October 2016.

 15   Hewitt v Torpero Nominees Pty Ltd[2013] FWCFB 6321

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

 17   Ibid.

 18   Ibid.

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

 20   [2016] FWCFB 6963

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