Mr Pankaj Solanki v M-Power Community Services Inc
[2016] FWC 8126
•11 NOVEMBER 2016
| [2016] FWC 8126 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Pankaj Solanki
v
M-Power Community Services Inc
(C2016/5996)
COMMISSIONER SAUNDERS | NEWCASTLE, 11 NOVEMBER 2016 |
Application to deal with contraventions involving dismissal – application for extension of time refused – application dismissed.
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 Pankaj Solanki (the applicant) a further period for his general protections application (the Application) to be made.
The Hearing
[3] On 7 November 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.
[4] The applicant gave evidence in support of his application for an extension of time. The respondent relied on its F8A Response to General Protections Application.
Legislative Scheme
[5] 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.”
[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3
[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. 4In 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. 5 A dismissal can be communicated orally.6
[9] There must be an acceptable reason for the delay in making the general protections application. 7
[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9
[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. 10 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:11
“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 applicant gave evidence that his last day of employment with the respondent was on 13 September 2016, however the applicant submits that his dismissal did not take effect until the following day, 14 September 2016, because this was the first day that he was not employed and something the applicant read led him to believe that the day after his final day of work was the date of his dismissal. In answer to question 1c in his Outline of Argument, the applicant stated:
“My dismissal was effective from 14th September 2016. That is, I was notified of my immediate dismissal by email received at 3:44pm on 13th September 2016…”
[13] The email received by the applicant from Ms Temi Ajayi at 3:44pm on 13 September 2016 stated “…you will be finishing with us until your assistance is required in the nearest future.” The applicant also gave evidence, which I accept, that at about 3:50pm on 13 September 2016 he was told “to leave” by one of the respondent’s managers and he did so. The applicant has not undertaken any work for the respondent since 13 September 2016.
[14] On the basis of the evidence summarised in the previous two paragraphs, I am satisfied that the applicant’s dismissal was communicated to him in writing and orally on 13 September 2016. It follows that the applicant’s employment with the respondent came to an end on 13 September 2016.
[15] The 21 day time period for the applicant to make his Application expired on 4 October 2016. 12 Given that the applicant filed his Application on 5 October 2016, the Application was one day late.13
[16] 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 October to 5 October 2016. However, the circumstances from the time of the dismissal (13 September 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.
[17] In his outline of argument, the applicant explained the reasons for his delay as follows:
“1. I made an application to the Fair Work Commission against Unfair Dismissal on 26th September 2016 (Matter Number U 2016/11964). The automatic reply received pursuant to that application is attached herewith.
2. I received an email on 29th September 2016 stating that my application ‘is taken to have been lodged in accordance with FWC Rules 2013’. A PDF copy of that email is attached herewith.
3. I saw a missed call that was made at 3:22 pm on 4th October 2016. (I do not remember why I missed the call.) I have attached an extract of my phone call log showing phone calls to/from the Fair Work Commission on relevant dates.
4. I received an email on 4th of October 2016 at 3:56 pm regarding Matter Number U 2016/11964. A PDF copy of this email is attached herewith. Within the PDF is embedded an MS Word file attached which states, “…based on the information you have provided, you do not appear to have satisfied the minimum employment period. In these circumstances the Fair Work Commission (‘the Commission’) has no jurisdiction to deal with your application.
5. On 5th October 2016 at 11:37 am, I again received a call from the same phone number that had called me the previous day. I was told by the lady at the other end of the line that my application could not be accepted for reasons mentioned in point 4 above. I asked her if there was no way out. She let me know that I could file a General Protections Application. She asked me when I was terminated. I let her know the date my termination was effective 14th September 2016. My belief is that she misunderstood 14th of September to be the date on which I was terminated and, informed me that I could file my General Protections Application by midnight 5th October 2016. I believe this happened due to a communication misunderstanding between me and the lady at the other end of the line. She asked me to use Form F-8 which she was kind enough to send me by email. I have attached a copy of that email here.
I did not seek any further clarification, as I presumed at that time that, may be, my interpretation of the 21-day rule was incorrect.
6. I filed my application on the evening of 5th October 2016 for which I received an automatic reply that very same day and which is attached here. I received a reply on the 10th October 2016 acknowledging my application to be within FWC Rules 2013. That email is attached here.
7. My contention is that I have made all attempts possible to follow the rules. However, if I receive a notification of my first application not being accepted, towards close of business on 4th October 2016, by email, which was the last day for filing, I think it is only reasonable to be given at least 24 hours’ time to file a revised application. Also, I was able to talk with the Fair Work Commission representative only on the 5th of October 2016 following which I filed the revised application on the same day. As can be seen I did file a revised application within 24 hours of being informed that my first application was unacceptable due to lack of jurisdiction.”
[18] In summary, the applicant contends that there were two main reasons for the delay in filing his Application:
(a) First, the applicant incorrectly filed an unfair dismissal application with the Commission within the 21 day time frame and was subsequently advised by the Commission that he was not eligible to make such an application. The applicant gave evidence, which I accept, to the effect that the Commission then advised the applicant that he could file a general protections application; and
(b) Secondly, the applicant gave evidence that the Commission advised him on 5 October 2016 that the 21 day time period would expire at midnight on 5 October 2016. The applicant subsequently filed his Application at 6:04pm on 5 October 2016 and later learned that the calculation of the 21 day time limit was incorrect.
[19] Notwithstanding that the applicant made a genuine and concerted effort to file his Application within the 21 day period, the primary reason he did not do so was his ignorance of the law insofar as he did not know that he was ineligible to make an unfair dismissal claim. However, ignorance of the legislation is not an exceptional circumstance.
[20] As to the communications the applicant had with the Commission on 5 October 2016, he was already outside the 21 day time period at the time he had those discussions. Further, the information the Commission gave to the applicant about the 21 day time period expiring on 5 October 2016 was based on the (mistaken) information the applicant gave the Commission concerning his date of dismissal. The applicant had time after he received the email from the Commission at 3:56pm on 4 October 2016 to file his Application before midnight on that day.
[21] Although I have some sympathy for the applicant, the matters he relies on, as summarised in paragraphs [17] to [18] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon.
[22] This factor 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. 14
[24] The applicant filed an unfair dismissal application with the Commission on 26 September 2016, within the 21 day period allowed for such applications. The Commission made contact with the respondent in relation to the unfair dismissal application. By lodging his unfair dismissal application within time, he put the employer on notice that he was contesting his dismissal and 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. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16
[27] A long delay gives rise “to a general presumption of prejudice”. 17
[28] The employer must produce evidence to demonstrate prejudice. No such evidence was adduced in this case.
[29] The period of the delay in this matter was one day. That is obviously a very short period of delay.
[30] Noting that the delay was one day, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.
Paragraph 366(2)(d) - merits of the application
[31] The applicant contends that his employment was terminated as a result of him exercising a workplace right, namely the applicant made complaints and inquires about not being paid correctly and having payments deducted from his wages.
[32] At the time of dismissal, the respondent advised the applicant that his contract had come to an end as there was a shortage of work. In its employer’s response, the respondent contends that the applicant was unreliable, did not have regular attendance, did not keep accurate time sheets, used company intellectual property for personal use and the applicant had an aggressive nature.
[33] The resolution of the contested factual question concerning the reason(s) for the termination of the applicant’s employment 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] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 18 considered this criterion and said (at [41]):
“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 Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters 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] Having taken into account the matters referred to in paragraphs [12] to [35] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.
[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.
COMMISSIONER
Appearances:
Mr P Solanki on his own behalf;
Ms T Ajayi, President, on behalf of the respondent.
Hearing details:
2016.
Newcastle:
November, 7.
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 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
4 [2011] 203 IR 1
5 Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
6 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.
7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
8 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9
9 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
10 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]
11 [2016] FWCFB 349 at [31]
12 That is, 21 days from 13 September 2016 (not including 13 September) is 4 October 2016.
13 That is, 5 October 2016 is 1 day after 4 October 2016.
14 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
15 Ibid.
16 Ibid.
17 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
18 [2016] FWCFB 6963
Printed by authority of the Commonwealth Government Printer
<Price code C, PR587435>
0
12
0