Mr Michaele Gebremicheal v Brighten Services Pty Ltd
[2014] FWC 5151
•15 OCTOBER 2014
| [2014] FWC 5151 |
| FAIR WORK COMMISSION |
DECISION |
The Fair Work Act 2009
s.394—Unfair dismissal
Mr Michaele Gebremicheal
v
Brighten Services Pty Ltd
(U2013/15199)
COMMISSIONER GREGORY | MELBOURNE, 15 OCTOBER 2014 |
Application for extension of time to lodge an application for relief from unfair dismissal.
Introduction
[1] Mr Michaele Gebremicheal was employed by Brighten Services from January 2012 until he was dismissed in September last year. There is some disagreement as to when the dismissal took effect. Mr Gebremicheal submits it took effect on 23 September 2013, whereas Brighten Services submits it took effect from 13 September. Mr Gebremicheal then lodged an unfair dismissal application with the Fair Work Commission (“the Commission”) on 22 October 2013. However, regardless of which party is correct about the actual date of dismissal, Mr Gebremicheal’s application was nevertheless submitted after the 21 day period provided for in s.394 of the Fair Work Act 2009 (Cth) (“the Act”).
[2] However, section 394(3) of the Act allows an extension of time to be granted if the Commission believes there are “exceptional circumstances” to warrant an exercise of this discretion. It provides:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.” 1
[3] It is also noted that this matter has a long and convoluted history. The application was originally listed for hearing on 7 February 2014. However, it was subsequently adjourned after the Commission was advised Mr Gebremicheal had left Australia for an indefinite period.
[4] On 2 April 2014 the Commission wrote to Mr Gebremicheal asking whether he had returned to the country. A further letter was sent on 22 April after no response was received. On 24 April Mr Gebremicheal responded indicating he had returned to Australia and wanted to proceed with his application. The Commission accordingly listed the matter for hearing on 2 June in relation to the extension of time application, with directions issued to both parties concerning filing of evidence and submissions.
[5] Mr Gebremicheal filed a short handwritten submission in accordance with the directions, however, nothing was received from Brighten Services.
[6] The matter then proceeded to hearing on 2 June, however, there was no attendance by either party on that day. Contact was finally made with both parties by telephone and in the brief proceedings that followed, conducted by telephone, it was agreed new directions would be issued, giving both parties another opportunity to provide submissions in relation to the application for an extension of time.
[7] Detailed directions were then issued to the parties later that day in the following terms.
- the reason for the delay,
- when the person first became aware of the dismissal after it had taken effect,
- any action taken by the person to dispute their dismissal,
- any prejudice to the employer, including prejudice caused by the delay,
- the merits of the application, and
- fairness as between the person and other persons in a similar position.
“These directions are issued following the hearing in the Commission on 2 June 2014.
As indicated in those proceedings the application by Mr Gebremicheal was not lodged within the 21 day time period following his termination, as required by s.394 of the Fair Work Act2009. However, s.394(3) allows for additional time in which to make application if the Commission is satisfied there are exceptional circumstances for doing so.
In considering whether “exceptional circumstances” exist the Act requires that the Commission take into account –
The Applicant, Mr Gebremicheal, is accordingly required to provide a written submission to the Commission by close of business on 16 June 2014 in support of his application for an extension of time to be granted in which to make application. As indicated, that submission should have regard to the matters referred to above.
A copy of that submission will then be provided by the Commission to the Respondent. The Respondent will then have until close of business on 30 June 2014 to provide any written submissions in response to those provided by the Applicant.
The parties will then be provided with the opportunity to make further oral submissions if they wish. In the event that neither party wishes to take up this option the matter will be determined on the basis of the written submissions provided.
If the Commission decides that there are “exceptional circumstances” that justify additional time being granted to make application the matter will then be set down for further hearing to deal with the merits of the application. In the event that written submissions are not received from the Applicant within the timeframe indicated above the Commission will also give consideration to whether the application should be dismissed.” 2
[8] On 16 June Mr Gebremicheal filed a further brief submission addressing the extension of time application. On 23 and 24 June three emails were received from Brighten Services containing various submissions. On 24 June the Commission made contact with the Company to again reiterate the nature of the directions issued, and the various matters to be taken into account in an extension of time application. However, no further submissions were received.
[9] On 30 July the Commission again wrote to both parties asking whether they wished to make further oral submissions and, if not, then the matter would be determined based on the submissions now before the Commission. On 5 August Mr Marc Tourneur of Brighten Services advised it did not wish to make further submissions and relied upon the materials previously submitted. A handwritten note was also received from Mr Gebremicheal on 5 August responding to some of the matters raised by Brighten Services. However, he did not seek to make further submissions.
The Issue to Be Determined
[10] Are there “exceptional circumstances” existing under s.394(3) to warrant the Commission exercising its discretion to grant Mr Gebremicheal additional time in which to make his unfair dismissal application?
The evidence and submissions
[11] As indicated, the parties only provided brief submissions with limited evidence in support. It is referred to in the context of each of the considerations in s.394(3) that the Commission is required to take into account.
(a) the reason for the delay
[12] Ms Gebremicheal provided the following reasons for the delay in filing his application in the submissions received on 16 June 2014.
“1. My comprehension of both written and spoken English is extremely poor;
2. I had no understanding of laws regarding employment, e.g. termination;
3. My lack of available resources to pursue the matter in a timely manner, and
4. I was only notified by an SMS (txt message) that I was not to arrive at work, and as such I had no idea that my employment had been terminated at that date.” 3
[13] Mr Doug Williams, a Director of Brighten Services, submitted in response that Mr Gebremicheal was not simply contacted by text message. 4 Brighten Services submits instead that after many warnings Mr Gebremicheal was told he could no longer work at the particular site he was at because of problems with his work performance, but it would endeavour to find him work at another location. Mr Williams says he called Mr Gebremicheal and told him to continue working at ‘the Restaurant,’ (another site he was working at), however, he did not attend that location, and provided no reason for his non attendance. As a result the contract with the client was lost.
[14] Further submissions were received from Mr Marc Tourneur, the Operations Manager for Brighten Services. He said Mr Gebremicheal was not notified of his dismissal by text message and was, in fact, given “numerous verbal warnings.” 5 He continued to state that Mr Gebremicheal did not respond to “many phone calls and text messages” in relation to his work performance, and this “clearly led me to believe that he wasn’t interested in the job anymore.”6
(b) whether the person first became aware of the dismissal after it had taken effect
[15] On the basis of the limited submissions received from the parties it is difficult to determine when Mr Gebremicheal first became aware of his dismissal. His application indicates he was notified of his dismissal on 13 September, and it took effect on 23 September. However, the Form F3 submitted in response by Brighten Services, indicates Mr Gebremicheal was notified of the dismissal on 13 September, and this is the date on which it took effect. Neither party made submissions about this issue, however, a number of text messages were submitted by Mr Tourneur that had been sent from 13 September onwards, accompanied by a request that Mr Gebremicheal call Mr Tourneur urgently. However, there is no evidence of any telephone conversation on that date or subsequently.
[16] The following comments are also made about the text messages received. It appears what has been provided are printed photos that are screen shots of the text messages between the parties. There is no evidence of whose phone these shots were taken from, other than the covering email which states they came from Marc Tourneur. In addition, the name of the contact in the phone is “Michael Burwood.” This is presumed to refer to Mr Gebremicheal. The time and dates also do indicate a year, but only provide the day and month. Finally, there is no way of knowing whether other messages were sent or received during this period, and have been deleted. However, this evidence was not disputed by the Applicant, and appears to be a true and correct version of the text messages exchanged between the parties.
(c) any action taken by the person to dispute the dismissal
[17] It is unclear what other action Mr Gebremicheal took to dispute his dismissal. However, there is nothing to indicate he took any action, other than lodging his unfair dismissal claim.
(d) prejudice to the employer (including prejudice caused by the delay)
[18] No submissions were made about this matter.
(e) the merits of the application
[19] There was only limited evidence provided by the parties about the respective merits of the matter. Mr Gebremicheal submits Brighten Services did not follow appropriate processes in carrying out his termination, whereas Brighten Services submits he was dismissed after repeated issues to do with his work performance.
(f) fairness as between the person and other persons in a similar position
[20] Neither party made submissions going to this matter.
Consideration
[21] There is an issue between the parties as to Mr Gebremicheal’s actual date of termination. However, regardless of the precise date of his dismissal there is no dispute that the application was not filed within the requisite time period, having been lodged at least eight days after that time.
[22] In considering an application for an extension of time the Commission must have regard to each of the considerations set out in s.394(3) of the Act. A number of decisions of this Tribunal and its predecessors have considered what is required to find that “exceptional circumstances” exist to justify an extension of time being granted. I refer, in particular, to the decision of the Full Bench in Nulty v Blue Star Group 7 (“Nulty”). It was made in the context of a general protections application, however, the principles have been held to be of broader application. Relevant extracts from the Full Bench decision are contained at [13] to [14] in the following terms:
“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.
Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 8
[23] The decision makes clear “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.394 (3) I must take account of.
(a) the reason for the delay
[24] Mr Gebremicheal’s submissions dealt primarily with this matter. The reasons put forward in his submissions for the delay in lodging are his poor command of the English language, his lack of understanding of the relevant legislation, and his lack of resources “to pursue the matter in a timely manner.” He did not explain how he was eventually able to deal with these issues and proceed to lodge his application. The submissions provided in response by Brighten Services did not deal with these matters.
[25] The decision in Nulty makes clear that the legislative framework is predicated on the basis that Applicants will generally take action in a timely manner to discover what remedy, if any, they might have in response to their dismissal. It also makes clear that ignorance of the statutory timeframe in which to make application is not, of itself, an “exceptional circumstance.” As the decision indicates, “Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy ....” 9
[26] Other recent decisions of the Tribunal have come to similar conclusions. For example, Commissioner Roe stated in the matter of Ms Susan Rose v BMD Constructions Pty Ltd, 10 “Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.”11
[27] I also make reference to the decision of Commissioner Williams in the matter of Mr Robert Lim v Downer EDI Mining. 12 In that matter the Applicant was an overseas resident who was engaged on a 457 visa, and unaware of his right to make an unfair dismissal application until he sought assistance from his Consulate. In addition, he was not a member of a Union, and did not seek legal representation until after he had lodged his application. The application was not lodged within the requisite time period.
[28] Commissioner Williams stated in response:
“[28] The explanation given by the applicant for the delay is in effect that he was unaware of his rights and made this application only after he became aware of his rights the day before the application was lodged.
[29] This is not unusual situation regardless of an applicant’s place of birth. Many applicants are unaware of their rights or become aware of them only after the statutory time period for lodging applications is passed. In many previous decisions of the former Australian Industrial Relations Commission it has been held that an applicant being ignorant of his legal rights is not an acceptable explanation for a late application having been made, and so it is in this case.
[30] Similarly the fact that the applicant did not seek legal representation nor was a member of a trade union and had not previously worked anywhere where such similar remedies exist do not in my view provided an acceptable explanation for the delayed lodgement. These circumstances are far from unusual.” 13
[29] I also note the decision of a Full Bench of Fair Work Australia in Doctor Bing Du v University of Ballarat 14 when it concluded:
“[31] In respect of Doctor Du’s reasons for the delay in making his unfair dismissal remedy application, we consider that it is not out of the ordinary course, unusual, special or uncommon for employees whose employment has ceased to not be aware of the law and to be unable to pay for advice or afford legal costs. Moreover, free advice is available from a number of sources, including the FWA website, about the grounds for an unfair dismissal remedy application and about making such applications to FWA by completing the appropriate form and paying the filing fee or obtaining a waiver of the filing fee.” 15
[30] It is emphasised again that the Commission was only provided with very brief submissions about the matters relied upon by Mr Gebremicheal. In addition, they were not supported by any evidence. However, I am satisfied that the decisions referred to make clear that his limited English language skills, lack of knowledge about the relevant legislation, and limited resources are not circumstances that constitute the “exceptional circumstances” to warrant the Commission exercising its discretion to extend time in which to make application.
(b) whether the person first became aware of the dismissal after it had taken effect
[31] As indicated, there is some dispute between the parties about the actual date of dismissal, and when Mr Gebremicheal became aware it had taken effect. However, I am satisfied any such doubt is not relevant in determining this application. Mr Gebremicheal believed his dismissal took effect on 23 September 2013, and he was aware of this situation prior to that date. His application was lodged more than a week after the 21 day period from that date.
(c) any action taken by the person to dispute the dismissal
[32] It appears the principal action taken by Mr Gebremicheal to dispute his dismissal was to lodge his unfair dismissal application.
(d) prejudice to the employer (including prejudice caused by the delay)
[33] Neither party made submissions about this matter. However, it is now more than 12 months since Mr Gebremicheal was dismissed. There would clearly be significant inconvenience and likely prejudice to his former Employer if it were now required to have to respond to an unfair dismissal application.
(e) the merits of the application
[34] Both parties provided limited submissions about this matter, with little or no evidence in support. It is clear the respective merits will only become apparent after a full hearing of the matter.
[35] I also note the relevance of the issue of “merit”, when determining an application for an extension of time, was considered by a Full Bench of the Australian Industrial Relations Commission in Kyvelos v. Champion Socks Pty Limited 16 (“Kyvelos”) when dealing with similar legislative provisions to those contained in the Fair Work Act. The Full Bench held:
“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 17
It continued:
“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 18
[36] As indicated, I am in no position to form a concluded view about the respective merits of this matter. However, Kyvelos makes clear it is not necessary to do so at this point. I therefore consider this factor to be a neutral consideration in deciding whether a further period to make application should be allowed.
(f) fairness as between the person and other persons in a similar position
[37] This does not appear to be a relevant consideration in the present matter.
Conclusion
[37] It is expected that an Applicant will generally comply with the statutory timeframes for making an application. In circumstances where an application is not made within those timeframes it is for the Applicant to establish that a further period should be allowed in which to make application. I am not satisfied this has been established in the present matter, based on the limited submissions and evidence provided to the Commission. There appears to be nothing that actually prevented Mr Gebremicheal from making application within the requisite time period. The authorities I have referred to provide support for the conclusion that the circumstances he describes are not unusual, but are instead commonly encountered and do not constitute the “exceptional circumstances” that justify an exercise of the discretion to grant additional time in which to make application. The application is therefore dismissed.
COMMISSIONER
Hearing details:
2014
Melbourne
2 June
Final written submissions:
The Applicant filed final submissions on 16 June 2014.
The Respondent filed final submissions on 24 June 2014.
1 Fair Work Act 2009 (Cth) at s.394(3).
2 Directions issued on 2 June 2014.
3 Letter from M. Gebremichael to the Fair Work Commission dated 13 June 2013 and received on 16 June 2014.
4 Email from M Tourneur to the Fair Work Commission received on 24 June 2014.
5 Ibid.
6 Ibid.
7 [2011] FWAFB 975.
8 Ibid at para 13 to 15.
9 Ibid at para 13.
10 [2011] FWA 673.
11 Ibid at para 11.
12 [2009] FWA 457
13 Ibid at para 28 to para 30.
14 [2011] FWAFB 5225.
15 Ibid at para 31.
16 Dec 1294/00 M Print T2421.
17 Ibid at [14].
18 Ibid.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR553719>
0
2
0