Mr Guilherme Raymundo Souza v The Trustee for the Cuisine Kitchens Unit Trust
[2024] FWC 1612
•24 JUNE 2024
| [2024] FWC 1612 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Guilherme Raymundo Souza
v
The Trustee for The Cuisine Kitchens Unit Trust
(C2024/2788)
| COMMISSIONER LEE | MELBOURNE, 24 JUNE 2024 |
Application to deal with contraventions involving dismissal
Introduction
Mr Souza (the Applicant) commenced employment with The Trustee for the Cuisine Kitchens Unit Trust (the Respondent) on or about 22 November 2023. He was employed in the position of a cabinet maker.
The reason given by the Respondent for the decision to terminate the Applicant’s employment, according to the letter of termination, was that there was a “mutually agreed departure’. The Applicant disputes that there was a mutual agreement to end the employment relationship and maintains that he was terminated at the initiative of the Respondent[1].
The Applicant has applied for an application to deal with a general protections dispute involving dismissal pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act). That application was lodged on 1 May 2024.
A hearing was conducted on 18 June 2024. The Applicant represented himself and gave evidence on his own behalf. Mr and Mrs Linscott appeared as representatives of the Respondent. Mr. Field, a legal consultant, sought permission to appear on behalf of the Respondent on the basis that the matter was complex and allowing permission would enable to the matter to proceed more efficiently. I was not satisfied that the matter was complex and did not grant permission for the Respondent’s representative to appear.[2]
Application was filed outside the statutory timeframe
Applications to deal with a general protections dispute must be made within 21 days after the dismissal took effect.
According to the Form F8, the Applicant’s employment was terminated by the Respondent with effect from 20 March 2024. The Respondent agrees with this date in their Form F8A.
Based on a termination date taking effect on 20 March 2024, the application to deal with a general protections dispute involving dismissal should have been lodged by no later than 10 April 2024.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 21 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for general protections involving dismissal may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 366(2) of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
the reason for the delay,
any action taken by the Applicant to dispute the dismissal,
prejudice to the Respondent including prejudice caused by the delay,
the merits of the application; and
fairness as between the Applicant and other persons in a similar position.
Each of these matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances[3].
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare[4]. I must be satisfied that, taking into account section 366(2) that there are exceptional circumstances.
I now consider these matters in the context of the Application.
a) Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant’s favour, however all of the circumstances must be considered[5].
The reason for the delay offered by the Applicant was that he “tried to contact the company the day after [he] was fired, but [he] needed to find a new job, collect the amount due, and recover physically and psychologically. [He] is also a foreigner and didn’t know how to make the request or where to look for help.” [6]
The Applicant further stated that this was the first time he had completed this procedure, he didn’t know about Fair Work before this, and he sent an email to the Fair Work Ombudsman asking for information on 14 April but did not understand how to formalise the application. The applicant stated that the Fair Work Ombudsman told him the date was late for the application and to look at the other part of Fair Work.[7] The Applicant submits that he made countless contacts to the company, but they have made him a fool[8].
I have considered these explanations for the delay. It is apparent that the Applicant comes from a non-English speaking background, and I accept that this can be a contributing factor to a delay in some circumstances. However, the Applicant did not make enquiries to the Fair Work Ombudsman until the 14 April, which was already outside of the 21-day time limit. A further two weeks or so then passed before the application was lodged. This is quite a significant delay. While the Applicant was unaware of the statutory requirements, ignorance of the timeframe for lodgement is not of itself an acceptable reason for an extension of time. While the Applicant refers to needing to recover physically and psychologically this claim is vague and there is no evidence to support this proposition. While the Applicant may well have been also looking for work and seeking claimed underpayments from the Respondent, this did not preclude him from also lodging an application within the statutory time period.
The Applicant also said that he fainted and crashed his car on 20 March 2024 and needed to go to hospital where they treated and discharged him within about six hours after which his friend took him to see his General Practitioner. The Applicant did not have anything else to add about the reason for the delay[9]. However, these circumstances do not explain why the Applicant was unable to lodge his application until 1 May 2024.
In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
b) Action taken by the Applicant to dispute his dismissal
Turning next to the question of the action taken by the Applicant to dispute his dismissal.
It is apparent that after the dismissal, the Applicant engaged with the Respondent vigorously in pursuit of alleged underpayments[10].
However, this does not appear to be action that was taken to dispute the dismissal. Rather it was action taken to recover alleged unpaid wages and allowances.
I am not satisfied there was any action taken to dispute the dismissal other than lodging this application. In the circumstances, that is a matter that is neutral.
c) Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.
The Respondent made submissions to the effect that there was prejudice.
In the circumstances, that is a matter that is neutral.
d) Merits of the application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Applicant submits that he was dismissed because he made inquiries about his workplace rights, including rights to overtime payments, paid meal breaks and other matters such as the provision of tools and replacement parts and rights to be reimbursed or paid an allowance for these things.
The Respondent denies it convened the general protections provision of the Act but, rather unhelpfully in its response which seems to have been prepared by its representative, provided no information about what its response to the alleged contraventions was. At the hearing Mr Linscott said that the Applicant had exhibited signs of discontent with the business and had turned up late one day and not turned up at all the next day[11]. Mr Linscott said he spoke to the Applicant following this and the Applicant had told him that he’d applied for two other jobs and was looking to leave the Respondent. Mr Linscott submitted that he was under the impression that the termination of the employment relationship was by mutual agreement as they had shaken hands on it at the end[12]. The Applicant disputes this version of events. The Applicant did say he indicated that he was considering leaving the Respondent because his pay had been reduced by $4.00 per hour. Mr Linscott accepts that is what occurred, but states that the pay reduction was made in error.[13]
Ultimately, the position is that the Applicant has an apparent case to which there is an apparent defence. It seems to me therefore, that his claim is, on a preliminary assessment basis, not without merit. That is not to suggest that it will succeed, but I am satisfied that there is at least some merit which would give the Applicant a justifiable reason to pursue his general protections claim. However, I’m not able to assess the merits as being so strong as to weigh in favour of the Applicant.
In the circumstances, that is a matter that is neutral.
e) Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, 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 Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring a general protection application involving dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from a general protection’s application involving dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
As I have indicated, I am not satisfied that there is an acceptable reason for the delay. That factor weighs against the Applicant. All other factors are neutral considerations. There are no factors weighing in favour of the Applicant.
In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application to deal with a general protections dispute made by the Applicant is dismissed. An order[14] to that effect will be issued separately.
COMMISSIONER
Appearances:
Mr Guilherme Souza, Applicant
Mr Marcius Bispo, Applicant support person
Mr Duncan Linscott, for the Respondent
Mrs Susie Linscott, for the Respondent
Hearing details:
18 June 2024.
Video using Microsoft Teams.
[1] PN54-55.
[2] PN7.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Digital Court Book at page 2.
[7] PN64-65.
[8] Question 1.5 of the Form F8.
[9] PN74-80.
[10] Digital Court Book at pages 2-4.
[11] PN119.
[12] PN119-120.
[13] PN124.
[14] PR776343.
Printed by authority of the Commonwealth Government Printer
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