Mr Ikimata Sau v TNT Australia Pty Ltd t/as TNT Express

[2010] FWA 8796

[2010] FWA 8796

FAIR WORK AUSTRALIA

DECISION

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

Mr Ikimata Sau
v
TNT Australia Pty Ltd t/as TNT Express
(U2010/11369)

COMMISSIONER CAMBRIDGE SYDNEY, 16 NOVEMBER 2010

Unfair dismissal – request for FWA to allow extension of time for lodgement of application.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 9 August 2010. The application was made by Ikimata Sau, (the applicant) and the respondent employer is TNT Australia Pty Ltd, (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 28 May 2010. Consequently the application was made 59 days after the standard time limit prescribed by subsection 394 (2) of the Act. The employer made a jurisdictional objection to the application on the basis that the application had not been made within 14 days of the dismissal. The employer made further jurisdictional objection on the basis that the applicant had resigned from his employment on 28 May 2010.

[3] On 26 October 2010, Fair Work Australia (FWA) conducted a Hearing to deal with the question of extension of time. At the Hearing the applicant appeared unrepresented and was assisted by the services of a Tongan language interpreter. The employer was represented by Mr M Brennan an “in-house” lawyer, who appeared together with Mr R Mackenzie the employer’s General Manager, Industrial Relations.

[4] During the Hearing the applicant provided some verbal submissions to supplement the material which had been filed on his behalf. The employer relied upon material that it had filed in preparation for the Hearing on the question of extension of time, and, in addition, made supplementary verbal submissions.

Factual Background

[5] The applicant had worked for the employer for more than 17 years. On 27 May 2010 the employer convened a meeting that included the applicant together with representatives from the Transport Workers’ Union of Australia, (the TWU). The meeting was held as part of an investigation into the applicant's alleged unacceptable workplace behaviour.

[6] The TWU representatives apparently advised the applicant that he should resign from his employment rather than be dismissed. The meeting was adjourned to allow the applicant to consider the proposition advanced by the TWU.

[7] On the following day, 28 May 2010, the applicant provided the employer with his written resignation which purported to be effective from the previous day, 27 May 2010.

[8] The applicant took no steps to challenge the circumstances of his apparent resignation provided on 28 May, until he was advised by a friend to pursue the matter further. Apparently, as a consequence of this advice the applicant made application for unfair dismissal remedy some 59 days after the expiry of the 14 day lodgement period.

The Applicant’s Case

[9] The applicant submitted that at the time that he was advised by the TWU to resign he was not provided with any language interpreter services. The applicant said that he did not fully understand the circumstances surrounding his apparent resignation on 28 May. This misunderstanding primarily arose from his difficulties understanding English language.

[10] The applicant submitted that the reason he was late with the lodgement of the application was that he was not aware of the services available to him and he received advice from a friend who suggested that he pursue the matter further.

[11] The applicant said that he had resolved the matters that were involved with the alleged unacceptable workplace behaviour and that the other individual was a good friend for many years who was happy to be contacted at any time regarding the matter. The applicant urged FWA to grant an extension of time.

The Respondent’s Case

[12] Mr Brennan who appeared for the employer submitted that the applicant had not provided any adequate reason for the delay in the lodgement of the application. Mr Brennan said that the material provided by the applicant did not actually disclose any reason for the delay with the lodgement.

[13] Mr Brennan made further submissions which addressed the various matters contained within subsection 394 (3) of the Act. In summary, Mr Brennan said that there was no reason established for the delay in lodgement, the applicant was obviously aware of the alleged dismissal at the time of his resignation, he had taken no other action to dispute the circumstances of the resignation, and there was little merit in the application particularly as the employer had received the applicant’s written resignation.

[14] Mr Brennan also referred to a Full Bench Decision of FWA in the case of Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers 1which he said supported the proposition that the applicant had not established that exceptional circumstances existed so as to provide any basis for the extension of time that was sought. Consequently Mr Brennan submitted that FWA should reject the application for extension of time.

Consideration

[15] Subsection 394 (3) of the Act provides FWA with a discretion to extend the time limit of 14 days as fixed by subsection 394 (2). Subsection 394 (3) is in the following terms:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

[16] As can be seen from subsection 394 (3), FWA must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which FWA is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a prescribed time.

[17] Importantly the onus rests with an applicant to convince FWA to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[18] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years must be assessed differently to a delay of 21 days where the time limit was 14 days. Consequently I believe that the length of the delay should be assessed as a percentage of the legislative time limit.

[19] In this instance the delay was 59 days relevant to the 14 day time limit. Consequently the delay has represented a little over 4.2 times the prescribed time limit. This represents a substantial delay relative to the prescribed time limit and therefore the applicant would face a significant, but not insurmountable, onus to establish the existence of exceptional circumstances.

Subsection 394 (3) (a) - the reason for the delay

[20] In this instance it was difficult to comprehend the reason for the delay. It appeared that the lodgement of the application was prompted by advice from a friend and that this advice enlightened the applicant to language interpreter services that were available to him. There was no further information provided about these services. It appeared that the applicant had obtained assistance from Kingsford Legal Service particularly relating to Tongan language interpreter services.

[21] The applicant’s language difficulties were clearly a matter of some concern. The applicant complained that at the time of his resignation he was at a considerable disadvantage because of his limited English language skills. However, the explanation about how his language difficulties manifest as a reason for the delay in the lodgement of the application was not satisfactory. The applicant offered the following explanation as providing linkage between his language difficulties and the late lodgement of the application :

“I couldn't understand that I can call interpreter to help.  That's why I miss 14 days' notice.  I think this is the only reason that I'm not satisfied and I've been unwilling to hold this result that I make myself resign from a good job and long service with the company.  That's why I require the Fair Australia today.  I think that's all I have for now.” 2

[22] Unfortunately there was no evidence before FWA to establish why the applicant's ignorance of interpreter services prohibited him or someone acting on his behalf, from lodging the application within the 14 day limit or at some time earlier than 9 August 2010. It is relevant to note that the documentary material provided on behalf of the applicant in support of an extension of time, was typed by the applicant's wife, Debra Sau. Presumably therefore, the applicant's wife, acting on behalf of the applicant, would have been able to make an application considerably earlier in time. Consequently I have not been persuaded that ignorance of interpreter services represented a valid reason for the delay in the lodgement of the application.

Subsection 394 (3) (b) - whether the person first became aware of the dismissal after it had taken effect

[23] The applicant first became aware of the dismissal at the time at which he tendered his resignation. Consequently this factor does not provide any assistance to the applicant.

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

[24] There was no evidence that the applicant had taken any other action to dispute the alleged dismissal. In this regard it is relevant to recognise that the applicant had been represented by the TWU. The TWU had apparently advised the applicant to resign. If the applicant had subsequent complaint about this advice it would have been logical to have provided evidence of subsequent contact with the TWU. In the absence of such evidence or any other indication of more recent complaint about the alleged dismissal, this factor does not assist the applicant.

Subsection 394 (3) (d) - prejudice to the employer (including prejudice caused by the delay)

[25] The employer provided no basis upon which to establish that there was any prejudice that could be identified in this instance. Consequently this factor could be considered to provide potential assistance to the applicant.

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

[26] This factor, described in the Act as “the merits of the application”, is directed towards some elementary assessment of the potential prospects of the matter at Hearing if the extension was granted. The employer submitted that as this was a case involving the written resignation of the applicant any question of the merits of the application must be negatively impacted as compared with a “usual” dismissal.

[27] There is some fundamental logic attached to the proposition that the prospects for success of an alleged constructive dismissal are lessened by those circumstances when compared to clear employer initiated dismissal. Consequently the most beneficial consideration of this factor would have FWA treat it as neutral.

Subsection 394 (3) (f) - fairness as between the person and other persons in a similar position

[28] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.

Exceptional Circumstances

[29] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  3. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

Conclusion

[30] In this instance the exercise of the discretion to extend time has been required in respect to a considerable delay of more than four times the prescribed time limit. In this context the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been the subject of careful consideration.

[31] The reason offered for the delay was simply unsatisfactory and not supported by any evidence. Further, there was some obvious difficulty associated with the potential prospects for success of a claim for unfair dismissal in circumstances where the applicant provided a written resignation. The other factors under consideration either did not significantly assist the applicant's claim for FWA to exercise the discretion to extend time, or were of neutral impact. Importantly none of these factors had any unusual characteristic that might provide basis for a finding that exceptional circumstances existed.

[32] Consequently in the absence of exceptional circumstances FWA is unable to exercise the discretion to extend time. The application has been made beyond the time limit set by subsection 394 (2) of the Act. Consequently the application is dismissed.

COMMISSIONER

Appearances:

Applicant in person.

Mr M Brennan, solicitor, with Mr R Mackenzie for the respondent.

Hearing details:

Sydney 26 October 2010

 1   Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers[2010] FWAFB 7251

 2   Transcript of proceedings (26 October 2010) @ PN154

 3   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

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