Mr Kelvin Looi v Matunda Pty Ltd T/A Amani Bar & Kitchen

[2016] FWC 6236

[2016] FWC 6236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mr Kelvin Looi
v
Matunda Pty Ltd T/A Amani Bar & Kitchen
(C2016/1589)

COMMISSIONER SAUNDERS SYDNEY, 6 SEPTEMBER 2016

Application to deal with contraventions involving dismissal – application to extend time refused

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

The Jurisdictional Objections

[3] The respondent contends that (a) the applicant was not dismissed and (b) the Commission should not exercise its discretion to extend time for the Application to be made.

[4] On 31 August 2016, a hearing was conducted by telephone in relation to the respondent’s jurisdictional objections.

[5] The applicant gave evidence in support of his application for an extension of time. The respondent called evidence from its director, Ms Jacqueline Guilbert.

Legislative Scheme

[6] 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.”

[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. 3In 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. 4 A dismissal can be communicated orally.5

[9] There must be an acceptable reason for the delay in making the general protections application. 6

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 7

[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. 8 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:9

“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] The respondent contends that the applicant resigned with effect on 13 May 2016. The applicant submits, in effect, that he was dismissed by the respondent on 13 May 2016. In considering the reasons for delay under s.366(2)(a), I will take the applicant’s case at its highest on the issue of dismissal and proceed on the assumption that he was dismissed by the respondent on 13 May 2016.

[13] The 21 day time period for the applicant to make his Application expired on 3 June 2016. 10 Given that the applicant filed his Application on 10 July 2016, the Application was 37 days late.11

[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 June 2016 to 10 July 2016. However, the circumstances from the time of the dismissal (13 May 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] The relevant timeline of events may be summarised as follows:

(a) On 7 May 2016, the applicant sent the respondent a medical certificate for a period of absence of two weeks in relation to his gout and problems with his right leg;

(b) On about 7 May 2016, the applicant arranged for his knives to be collected from the respondent’s workplace;

(c) On 7 May 2016, the respondent sent the applicant a further warning letter;

(d) On 7 May 2016, after receiving the warning letter, the applicant sent a text message to the respondent in which he stated, inter alia, “We as professionals always stay professionals and never quit our job n passion.. We only quit bosses.”;

(e) On 11 May 2016, the applicant was admitted to the Royal Perth Hospital for a period of 15 days in relation to a “tumor of R medial foot”. A medical certificate dated 25 May 2016 and tendered by the applicant states that he attended the Royal Perth Hospital on 11 May 2016, was treated as an in-patient and was unfit for “one month”. The Discharge Summary prepared by the Royal Perth Hospital includes the following relevant information:

“…Principal Diagnosis Neoplasm [Right]	Small blue round cell tumour of right medial foot
Comorbidities Haematoma [Right]	Right foot hematoma
… Clinical interventions
Open biopsy [right]	Tumor of right foot
Dressing of wound [Right]	VAC dressing applied to right foot in Operating Theatre
Dressing change [Right]	Change of VAC dressing on ward
…Clinical findings
Vitals stable, afebrile
Right foot: large 15-18cm hematoma, broken through skin, tender, NVI, cap refill < 2secs, nil pain on ankle movements
Management/progress:
Right medial foot small blue round cell tumour
Analgesia given
Imagings arranged, results as below
Right medial foot biopsy done on 14/5/2016
IVAB given 24/24 post op
Application of VAC dressing onto right foot done on 17/5/2016”

(f) On 13 May 2016, the respondent sent an email to the applicant, the first paragraph of which was in the following terms:

“In regards to your employment as [sic] Amani Bar and Kitchen. I received your last text message on 7/5 in which you made some demands and threats in regards to final pay and wrote the words “we as professionals … Quit bosses”. I took this as your resignation from your post after receiving your third and final letter of warning. I am taking advice and sending this letter as confirming your resignation has been accepted that your employment has been terminated as of today’s date…”

(g) It is clear from the following email sent by the applicant to the respondent at 4:53pm on 13 May 2016 that the applicant became aware of what he asserted was his dismissal on 13 May 2016:

“A resignation letter will be written formally if I am resigning .. i said we quit bosses as professionals means i quit? I didn’t sign or acknowledge any of your unreasonable so called warning letters and why Sam is still employed? You guys are that perfect? What a joke.. i will take that as termination during my medical leave.” [emphasis added]

(h) On 25 May 2016, the applicant was discharged from the Royal Perth Hospital. After being discharged, the applicant continued attending the Royal Perth Hospital to receive treatment as an out-patient;

(i) Within about a couple of days of being discharged from the Royal Perth Hospital on 25 May 2016, the applicant spoke to someone from Legal Aid and then made contact with the Commission;

(j) At some time in the period from about 3 to 10 July 2016, the applicant contacted the Commission again in relation to making an application in relation to his dismissal. At that time the applicant was informed that he had “already exceeded the 21 days grace period”;

(k) On 10 July 2016, the applicant filed his Application in the Commission; and

(l) On 11 July 2016, the applicant was admitted again to the Royal Perth Hospital to have his right leg amputated below the knee.

[16] The applicant relies on the following reasons for the late lodgment of his Application:

(a) First, the applicant was in hospital (on sick leave) at the time he received notification of his dismissal on 13 May 2016. He remained in hospital until 25 May 2016. The applicant was on strong painkillers while he was in hospital;

(b) Secondly, after the applicant was discharged from hospital on 25 May 2016, he remained on strong painkillers and still needed to go back to the out-patient clinic for follow-ups and changes to the dressing on his leg, as well as counseling. The applicant says he was “very lost and didn’t know who to turn to for help still being very sick and going through lots of pain”;

(c) Thirdly, the applicant was uncertain as to when his last day of work was;

(d) Fourthly, the applicant was informed that the biopsy results from his treatment in hospital showed he had a malignant tumor and a rare form of cancer, and the only way to save his life was to amputate his foot below the knee. The applicant says he was “going through depression about the entire situation why they did this to me and needed counseling in order to accept the fact of losing my foot because of working and neglecting my health”;

(e) Fifthly, the applicant is a non-resident and “all alone in Australia”. The applicant was not aware of the 21 day time period until the week prior to his Application being filed on 10 July 2016. By that time, the 21 day period had passed; and

(f) Sixthly, the applicant had his workers’ compensation claim rejected.

[17] As to the first and second reasons, I accept the applicant’s evidence that he was on strong pain killers while he was in hospital and after he was discharged from hospital and that such medication likely had an impact on his capacity to make a general protections application for at least some of the time in the period from 13 May 2016 until 10 July 2016. However, the evidence demonstrates that the applicant was able to, and did, send numerous text messages and emails to various people, including the respondent, while he was in hospital (from 11 to 25 May 2016) and after he was discharged from hospital on 25 May 2016. Further, the applicant accepts that he made a workers’ compensation claim against the respondent while he was in hospital in the period between 11 and 25 May 2016. The “paperwork” for the workers’ compensation claim was prepared for the applicant by the Overseas Liaison Officer or some other employee in the Accident and Emergency Department of the hospital, and the applicant signed the application form. It is also relevant to note that the applicant did not adduce any medical evidence from any of his treating doctors to attempt to explain the extent of his incapacity or to demonstrate that his illness, or the medication he was taking in relation to such illness, prevented him from lodging his Application for any particular period of time in the period from 13 May to 10 July 2016.

[18] As to the third reason, it is clear from the email sent by the applicant to the respondent on 13 May 2016 that he was aware, at the time he sent that email, that his employment with the respondent had come to an end.

[19] As to the fourth reason, I accept that the applicant was distressed after being informed that he had a rare form of cancer and the only way to save his life was to amputate his foot below the knee. However, no medical evidence was adduced to attempt to explain the extent of his incapacity by reason of depression or any similar condition or to demonstrate that his depression (or similar condition) prevented him from lodging his Application for any particular period of time in the period from 13 May to 10 July 2016.

[20] As to the fifth reason, ignorance of the 21 day timeframe is not an exceptional circumstance 12, nor is having a lack of support. It is also relevant to note that the applicant had made three prior applications to the Commission in relation to other matters. He therefore knew that the Commission was the appropriate institution to contact in relation to workplace issues. Indeed, that is why he first contacted the Commission in relation to his dismissal with the respondent on about 27 May 2016. At that time the applicant was still within the 21 day time period. In my view, the evidence does not adequately explain the applicant’s delay in filing the Application for the whole of the period of delay between 3 June 2016 and 10 July 2016.

[21] As to the sixth reason, the fact that the applicant was able to make a workers’ compensation claim, albeit with assistance, in the period from 11 to 25 May 2016 demonstrates that he was capable of making his Application in that period of time. That the applicant’s workers’ compensation claim was rejected is not an exceptional circumstance.

[22] On the basis of the matters set out in paragraphs [16] to [21] above and the timeline of events summarised in paragraph [15] above, I find that this factor (s.366(2)(a)) weighs 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. 13

[24] The applicant sent a number of text messages and emails to the respondent in the period between 13 May 2016 and 10 July 2016. In those communications he challenged the fairness of, and reasons for, his dismissal. By doing so, he took action to dispute his dismissal.

[25] 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. 14 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.15

[27] A long delay gives rise “to a general presumption of prejudice”. 16

[28] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 17 No such evidence was adduced by the respondent in this case.

[29] The period of the delay in this matter was 37 days. I consider that to be 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] In my view, the applicant has reasonable prospects of establishing that he was dismissed by the respondent. When the applicant’s text message concerning “quitting” is read in whole and in the context of the other communications between the applicant and the respondent at about that time, it is reasonably clear, in my view, that the applicant’s communication to the respondent did not constitute notice of a resignation by him. Further, the other aspects of the applicant’s conduct to which the respondent points, including having his knives taken away from the workplace when he was in hospital, sending abusive emails and text messages to the respondent, training up other staff, wanting his overtime and annual leave paid, the kitchen being cleaned by another employee for a new head chef and the applicant indicating back in November 2015 an intention to resign in May 2016, is unlikely, in my view, to establish a resignation by the applicant. The applicant provided the respondent with a medical certificate for a period of two weeks from 7 May 2016. He had good reason to want to continue his employment during this period and thereafter.

[32] The applicant contends that his employment as a Head Chef was terminated because he was temporarily absent from work because of illness or injury within the meaning of s.352 of the Act. He also contends that the respondent took adverse action against him in contravention of s.340 of the Act. The respondent denies the applicant’s allegations.

[33] I am satisfied on the evidence before me that the substantive application is not without merit. However, the resolution of the contested factual question concerning the reasons for the respondent’s actions 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] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 18considered this criterion and said (at [29]) “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been 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] Although I have sympathy for the applicant’s circumstances, he has not provided an adequate explanation for the whole of the delay. In addition, his conduct in the period between 13 May 2016 and 10 July 2016 (as summarised in paragraphs [15] to [21] above) demonstrates, in my view, that he was in a position where he could have made his Application within the 21 day period, and certainly well before 10 July 2016. This factor weighs against granting the extension. Save for action taken by the applicant to dispute the dismissal, which weighs in favour of granting the extension, the other factors are neutral considerations. On balance, having taken into account the matters referred to in paragraphs [8] to [35] above, I am not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made.

[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. It is therefore not necessary for me to make any final determination as to whether the applicant was dismissed by the respondent.

COMMISSIONER

Appearances:

Mr K. Looi on his own behalf;

Ms M. Lalli, solicitor from HWL Ebsworth Lawyers,for the respondent.

Hearing details:

2016.

Newcastle:

August, 31.

 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 [2011] 203 IR 1

 4   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C,

21 November 2000) Print T3496 at [24].

 5   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.

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

 7   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 8   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]

 9   [2016] FWCFB 349 at [31]

 10   That is, 21 days from 13 May 2016 (not including 13 May) is 3 June 2016.

 11   That is, 10 July 2016 is 37 days after 3 June 2016.

 12   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

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

 14   Ibid.

 15   Ibid.

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

 17   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 18   [2015] FWC 8885

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