Mr Hy Can v Venture DMG P/L

[2010] FWA 2408

Note: An appeal pursuant to s.604 (C2010/3457) was lodged against this decision.

[2010] FWA 2408

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment

Mr Hy Can
v
Venture DMG P/L
(U2009/4780)

COMMISSIONER CRIBB MELBOURNE, 25 MARCH 2010

Termination of employment –jurisdiction - extension of time.

[1] This matter concerns an application lodged by Mr Hy Can (the applicant) in relation to the termination of his employment by Venture DMG P/L (the respondent). Mr Can contends that the termination of his employment was harsh, unjust or unreasonable (section 643(1)(a) of the Workplace Relations Act 1996 (the Act)) and that there was a failure to provide notice of termination (section 661 of the Act). The termination of the applicant’s employment occurred on 2 April 2009 and the application was lodged on 24 June 2009. As the application has been lodged outside the 21 day time limit, contained in section 643(14) of the Act, it can only be accepted if the Tribunal extends the time period. The respondent objects to such an extension being granted.

[2] Section 647 of the Act allows extension of time applications to be dealt with without a hearing taking place.

[3] I decided to deal with the extension of time application without a hearing. Accordingly, on 31 August 2009 a letter was written to the parties regarding the filing of written material with respect to the application for an extension of time. The applicant submitted documentation on 8 September 2009. The respondent filed their submissions on 16 September 2009.

[4] This decision deals with whether or not an extension of time should be granted to the applicant.

SUBMISSIONS

APPLICANT

[5] Mr Dircks, on behalf of the applicant, stated that Mr Can had been employed by the respondent as a moulding machine operator from 2 March 1998 until his dismissal on 2 April 2009. It was explained that the applicant is a Vietnamese migrant with poor English language skills and a hearing problem which makes telephone communication difficult for him. 1

2 April 2009

[6] The relevant incident (on Thursday 2 April 2009 at approximately 9.00 pm) was recounted as having taken place as follows:

• The applicant was the sole operator of his machine and he was feeling tired and sick.



• At 9.00 pm, his supervisor (Lam) turned the machine off so the applicant could have his lunch break.



• The applicant went into the car park after his lunch.



• His supervisor (Lam) came out and said, in Vietnamese, that the Shift Manager (Hai Du) wanted to see him as he wanted him to do some cleaning.



• The applicant had said that he was not feeling well and that he wanted to go home. His supervisor had responded that, if he wanted to go home, he had to talk with the Shift Manager.



• The applicant went inside to his machine where Hai Du was standing.



• Hai Du said to the applicant, in English, that he wanted him to clean under the machine.



• The applicant was surprised and responded that it was not his job, that he was a machine operator and that he was not feeling well and wanted to go home.



• The applicant also thought that what he was being asked to do was dangerous and also, he did not have safety boots and gloves.



• Hai Du had told him that if he went home he would not come in the next day.



• The applicant said that he did not feel well.



• Hai Du said “too late”.



• The applicant went home at approximately 9 – 9.30 pm. 2

Friday 3 April 2009

[7] It was stated that the applicant did not understand that he had been dismissed on 2 April 2009. Mr Dircks recounted that the applicant went to the doctor and was given 1-2 days off work. The applicant put in the medical certificate and did not go to work that night. 3

Monday 6 April 2009

[8] The applicant presented at work at the normal time and clocked on. His supervisor told him to go to the office as Hai Du, the Shift Manager, wanted to see him.

• Hai Du told him that he had been dismissed but that he could talk to the General Manager.



• It was recounted that, as he could not speak English, the applicant went instead to the Springvale Monash Legal Service Inc.



• The Legal Service contacted the National Union of Workers (NUW) on the applicant’s behalf as he was not comfortable or confident talking on the telephone. He was then told to go home and not to worry. 4



• The NUW organiser was said to have made representations to a number of the relevant Managers to get the applicant’s job back.



• The applicant, through his nephew, requested that the NUW lodge an unfair dismissal claim. The organiser undertook to try and get the applicant’s job back through negotiation but would lodge an unfair dismissal claim if he was unsuccesfull.



• The NUW organiser had indicated that he would obtain some compensation for the applicant but nothing eventuated.



• By the time the applicant, through his nephew, raised lodging an unfair dismissal application with the NUW, he was told that the time had run out.



• The applicant sought the assistance of Centrelink and Legal Aid in lodging an application. This was done through the applicant’s representatives on 24 June 2009. 5

Acceptable Explanation

[9] With respect to the principles set out in Brodie Hanns v MTV Publishing Ltd 6 (Brodie Hanns), it was submitted that there was an acceptable explanation for the late lodgement of the application. Mr Dircks stated that, when the applicant was dismissed, he was told that he could dispute his dismissal. It was recounted that the applicant had sought assistance from a legal service and his union to dispute the termination. The applicant stated that the union had taken the matter up directly with the Company and had gone past the statutory time limit for lodging the application.

[10] Mr Dircks argued that the failure of the union to lodge an unfair dismissal claim to protect the applicant’s rights, whilst still negotiating directly with the employer amounted to a failure by the industrial representative which resulted in the late lodgement of the application. 7

[11] Further, it was submitted that the applicant, as a member of the union, was entitled to have explained to him what his options were. Mr Dircks said that there were a number of decisions of the Tribunal where the failure of the union to provide correct advice to a member had been found to be an acceptable reason for the delay. 8

[12] Finally, Mr Dircks contended that the Tribunal should also take into account the difficulties the applicant experienced after his dismissal, in organising his thoughts and working out what he was going to do. A Full Bench decision was highlighted which was said to have taken into account the applicant’s state of mind and family responsibilities in granting an extension of time. 9

Contest the termination

[13] It was submitted that the applicant had contested the termination of his employment through the union, prior to lodging an application. 10

Prejudice to the employer

[14] Mr Dircks contended that the delay had not prejudiced the employer. 11

Merits of the application

[15] It was argued on behalf of the applicant that there was no absence of merit in this matter. The issue, at the time of dismissal, was said to be whether the applicant could be dismissed for seeking to go home sick and/or refusing to perform dangerous work which was not part of his job. Mr Dircks also contended that the applicant had been denied procedural fairness. It was said, further, that the termination of the applicant’s employment was harsh given its personal and financial consequences on the applicant. 12

Fairness with others

[16] Mr Dircks argued that the applicant had not been treated fairly in comparison with other persons in a like position. 13

RESPONDENT

[17] It was confirmed by the respondent that the applicant had been employed as a moulding machine operator from 2 March 1998 to 2 April 2009. 14

2 April 2009

[18] On behalf of the respondent, Mr Feldman recounted what had occurred during the applicant’s shift on 2 April 2009:

• Prior to his meal break, the applicant was asked by his Team Leader, Lam, to clean the machine he was working on after his break. The applicant’s meal break commenced at 7.30 pm.



• At about 8.30 pm, Lam approached the applicant who was in the car park and asked him why he had taken a longer break and, in Vietnamese, asked him to clean the machine after his break.



• The applicant had responded by saying that he did not want to clean the machine and would prefer to finish his shift early. Lam had then told him that he needed to discuss this with the Shift Manager, Hai Du. The applicant did not tell Lam that he was feeling unwell and wanted to go home early. He did not appear to be unwell.



• The applicant, together with Lam, approached Hai Du who again directed the applicant to clean beneath his machine. The applicant had replied, in English, that it was not part of his job to clean under the machine and that he would not do it. Hai Du told the applicant that it was part of his job and asked him again. The applicant had refused and said he would rather go home.



• Hai Du told the applicant that the Company would not have him back if he went home. This was said to have been informing the applicant that his job was in jeopardy for failing to follow a lawful and reasonable direction.



• The applicant then went home without doing the cleaning or finishing his shift. 15

[19] It was submitted that the applicant had chosen not to comply with a lawful and reasonable request to clean beneath the machine. Mr Feldman stated that the conversation between Hai Du and the applicant was in simple English. It was said that the applicant was able to communicate in English and that his responses meant that he had understood Hai Du’s instructions. The applicant had not asked Lam to translate for him.

[20] Further, it was contended that the applicant had not told Hai Du that he was unwell and that that was the reason he had refused to clean and had left early.

[21] The respondent’s position was that the request to clean under the machines was a normal request as oil collected at the base of machinery. If it was not cleaned, it was said that it would pose a safety hazard. It was stated that cleaning the oil beneath the machines was not unsafe work and that plastic coveralls and rubber gloves were available for this cleaning. 16

3 April 2009

[22] The respondent denied that the applicant provided a medical certificate on 3 April 2009. 17

6 April 2009

[23] It was confirmed that the applicant came to work on 6 April 2009 and that Lam directed him to Hai Du. The respondent stated that Hai Du told the applicant, and put it in writing, that his employment had been terminated for serious misconduct on 2 April 2009. The applicant was offered the opportunity to speak with more senior management which he did not take up. He then left the workplace. It was recalled that the applicant had not sought Lam’s assistance to translate. 18

[24] The respondent stated that the NUW had made representations on behalf of the applicant. It was indicated that, after discussions between the union and senior management, the respondent agreed to provide the applicant with eight weeks’ pay. This had been transferred, electronically, into the applicant’s bank account on 21 June 2009. 19

Acceptable explanation

[25] The respondent submitted that an acceptable explanation had not been provided for the lodgement of the application 83 days after the date of dismissal. It was pointed out that, as soon as the applicant became aware that he had been dismissed, he sought advice and assistance from a legal service and his union. The respondent contended that the applicant had had ample opportunity to lodge the application within the time limit.

[26] Mr Feldman argued that the applicant could have lodged his application with the assistance of either the legal service or the union. The respondent could not understand as to why the applicant had not. It was submitted that the applicant’s inaction regarding the lodging of an application should be taken into account in deciding whether the union’s error is an acceptable explanation for the delay. Mr Feldman said that the applicant had left the matter with the union and had failed to follow up progress over the two months negotiation period. This could not be said to provide the basis for an acceptable explanation for the delay. 20

Action taken by the applicant

[27] The respondent indicated that the applicant had sought assistance from a legal service and the NUW. A negotiated settlement had been reached between the applicant’s representative and the respondent. 21

Prejudice to the employer

[28] Mr Feldman submitted that the respondent would suffer significant prejudice if the extension was granted. It had been negotiated and agreed between the NUW and the company that the applicant would receive eight weeks’ pay on lieu of notice. It was said that the collective agreement did not provide for payment of notice in cases of serious misconduct. Secondly, Mr Feldman stated that the agreed payment was twice the quantum applicable for a “normal” termination of employment.

[29] Further, the respondent stated that, had it been aware that the applicant was going to lodge an unfair dismissal claim, it would not have paid the eight weeks in lieu of notice. Mr Feldman submitted that the applicant should not be permitted to successfully negotiate a settlement through his union representative and then, shortly after, lodge an unfair dismissal claim.

[30] Finally, the respondent indicated that it will be forced to allocate further human and financial resources if the extension application was granted. This would impose a financial burden on the respondent. 22

Merits of the application

[31] The respondent submitted that the application is without sufficient merit to allow an extension of time to be granted. It was acknowledged that there were some discrepancies in the factual matrix.

[32] However, it was stated that the applicant was dismissed for refusing to carry out a lawful and reasonable direction and for leaving midway through his shift. The respondent said that the applicant was not dismissed because he was unwell. At no time did the applicant indicate to the respondent that he was not well and his behaviour had not indicated that he was sick.

[33] Further, it was argued that the applicant had been provided with procedural fairness in that he was told, on 2 April 2009, that he would be terminated if he did not perform the cleaning duties. Also, on 6 April 2009, the applicant was given the opportunity to speak to more senior managers.

[34] In the alternative, Mr Feldman submitted that, even if the circumstances did not give rise to the right to summarily dismiss, the respondent did have the right to terminate with notice. As a result of the settlement negotiated with the NUW, the applicant received eight weeks’ pay in lieu of notice. This was said to be more than adequate compensation which thereby reduced the merit of the claim. 23

Fairness with others

[35] It was contended that the respondent had treated the applicant as it would any other employee in the same circumstances. The respondent also stated that the applicant was not specifically disadvantaged compared with other employees. 24

[36] Finally, Mr Feldman submitted that the applicant had failed to make out a case for the granting of an extension of time. In addition, it was argued that the submissions were incomplete or vague and had not provided sufficient detail regarding a number of matters eg. the medical certificate, the negotiations which resulted in a settlement. 25

CONCLUSIONS

[37] The principles to be applied by the Tribunal in considering whether to grant an extension of time application are those set out in Brodie Hanns v MTV Publishing [1995 67 IR 298] (Brodie Hanns). They are as follows:

“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.

(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”

[38] I now turn to those principles and apply them to the submissions that have been provided to the Tribunal.

Acceptable explanation for the delay

[39] It was the applicant’s submission that the reason for the delay in lodging the application was that the union had failed to protect the applicant’s rights by lodging an application whilst negotiations were being conducted with the company. Further, it was argued that the applicant, through his nephew, had requested that the union lodge an unfair dismissal claim. By the time this request was made to the union, the statutory time limit had passed. It was said that the applicant’s request was made following the union organiser telling the applicant that he would be talking to the General Manager about getting the applicant’s job back but that an unfair dismissal claim would be lodged if that failed. Subsequently, the organiser had told the applicant that he would negotiate compensation for him. It was also argued that the applicant’s state of mind after his dismissal should be taken account of.

[40] On the respondent’s behalf, it was contended that an acceptable explanation had not been provided by the applicant. This was due to the applicant taking no action himself to follow up with the union whilst it was negotiating on his behalf. Secondly, it was inexplicable as to why the legal service or the union had not assisted the applicant lodge a claim particularly as he had been in contact with both around 6 April 2009 and there was ample opportunity for an application to have been lodged within time.

[41] I have considered carefully both parties’ submissions. It would appear that the applicant contacted the NUW (via the legal service) on 6 April 2009 and that the union made representations to the respondent on behalf of the applicant. It also appears that negotiations between the union and the company had concluded by 21 June 2009 which is the date the company says that an electronic funds transfer was made to the applicant’s account. The applicant was said to have contacted his current representative on 22 June 2009 with the application lodged on 24 June 2009.

[42] Therefore, it seems that on-going discussions between the union and the company occurred over an approximately two month period from 6 April 2009. Accordingly, the period of delay except for some days at the end, covered the period when discussions were occurring between the union and the company regarding the applicant. During this period, the applicant says that, through his nephew, he was told that the union would lodge an unfair dismissal claim if negotiations with the company were unsuccessful. Secondly, the applicant’s submissions indicated that, through the nephew also, the applicant requested that the union lodge an unfair dismissal claim.

[43] On the basis that the period of delay covered, generally, the period of negotiations between the union and the company, together with the union telling the applicant that they would lodge an unfair dismissal claim if negotiations were unsuccessful and the applicant, himself, later requesting that the union lodge a claim, I am satisfied, on balance, that an acceptable explanation has been provided for the delay.

Action taken by employee to contest the termination

[44] It was common ground that the NUW, acting on the applicant’s behalf, had made representations to the respondent resulting in a negotiated settlement. It would also appear that, on 6 April 2009, when his dismissal was confirmed, the applicant went to a legal service for assistance.

[45] On the basis of the material before me, I find that the applicant did contest his dismissal other than by lodging an unfair dismissal claim.

Prejudice to the respondent

[46] The applicant contended that there was no prejudice to the respondent as a result of the delay.

[47] On the other hand, the respondent held the very clear view that they would be significantly prejudiced if the extension of time was granted. This was principally due to the fact that a negotiated settlement had been reached with the union regarding the applicant. This settlement was stated to be contrary to the requirements of the collective agreement and double the applicable terms of the agreement if the termination had not been for serious misconduct. Further, it was said that a settlement would not have been reached if the respondent had known that the applicant was going to lodge an unfair dismissal claim.

[48] The applicant did not directly address the issue of the negotiated settlement except to say that, at the time of lodgement, “the promised compensation” had not been paid. 26

[49] On the basis of the material before me, I find that a settlement was most probably reached between the NUW and the company regarding the applicant’s dismissal. Given that the company had already negotiated a settlement regarding the applicant, I accept their contention that they would be prejudiced if the extension of time was granted. Therefore, I find that there would be prejudice to the respondent if the time limit was extended.

Merits of the application

[50] On the basis of the material before me, there is a conflict between the parties regarding the facts of this matter.

[51] Given this situation and the absence of sworn evidence, it is not possible to say that the application is without merit.

Fairness as between the applicant and other persons in a like position

[52] Given the circumstances of this matter, this principle is not relevant.

[53] Having considered all of the material put to me by both parties, in light of the principles enunciated in the Brodie Hanns decision, I have concluded, on fine balance, that I am prepared to exercise my discretion to extend the time to allow for the proper lodgement of the application.

[54] It should be noted that the application before me is for an extension of time and, in determining the application, I am required to follow the principles set out in the Brodie Hanns decision. If other criteria were applicable, the conclusion reached may have been different.

[55] An order 27 giving effect to this decision will be issued separately.

[56] The matter will be set down for conciliation on a date to be advised.

COMMISSIONER

 1   Applicant’s submissions dated 8 September 2009 at paragraphs 3-5

 2   Ibid at paragraphs 10 – 26 and 29

 3   Ibid at paragraphs 30 - 34

 4   Ibid at paragraphs 35 - 42

 5   Ibid at paragraphs 43 - 47

 6 (1995) 67 IR 298

 7   Applicant’s submissions dated 8 September 2009 at paragraphs 4 - 7

 8   Ibid at paragraphs 8 - 9

 9   Ibid at paragraphs 10 -13

 10   Ibid at paragraph 16

 11   Ibid at paragraphs 17 - 19

 12   Ibid at paragraphs 21 - 24

 13   Ibid at paragraph 25

 14   Respondent’s submissions dated 16 September 2009 at paragraph 3

 15   Ibid at paragraphs 3 - 11

 16   Ibid at paragraphs 12 - 16

 17   Ibid at paragraph 20

 18   Ibid at paragraphs 21 - 22

 19   Ibid at paragraph 25

 20   Ibid at paragraphs 29 - 37

 21   Ibid at paragraphs 38 - 39

 22   Ibid at paragraphs 40 - 47

 23   Ibid at paragraphs 49 - 56

 24   Ibid at paragraphs 57 - 61

 25   Ibid at paragraphs 62 - 64

 26   Applicant’s submissions dated 8 September 2009 at paragraph 45

 27   PR995415

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