Mr Samson Yohannis v Action Industrial Catering Pty Ltd

[2014] FWC 7619

[2014] FWC 7619

FAIR WORK COMMISSION

DECISION

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

Mr Samson Yohannis
v
Action Industrial Catering Pty Ltd
(U2014/11621)

COMMISSIONER CLOGHAN PERTH, 28 OCTOBER 2014

Unfair dismissal - jurisdictional objection - out of time.

[1] On 12 August 2014, Mr Samson Yohannis (Mr Yohannis or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Action Industrial Catering Pty Ltd (Employer).

[2] Mr Yohannis states in his application that his dismissal took effect on 4 June 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2) of the FW Act.

[5] Mr Yohannis has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 12 August 2014), if it is satisfied that there are exceptional circumstances.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 12 August 2014, I issued procedural directions to the parties on 9 September 2014 advising that the matter would be determined by written submissions.

[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the Applicant to file the application on 12 August 2014.

APPLICANT’S SUBMISSION

[9] In summary, the Applicant states that:

• he was dismissed on 4 June 2014;



• he made application to the Western Australian Industrial Relations Commission (WAIRC) alleging harsh, oppressive and unfair dismissal on 5 June 2014;



• “after a long wait they told me I am at wrong place”;



• English is not his native language;



• he is not assisted by an advisor;



• he has an injured back, with limited movement, strong pain and receiving a disabled pension; and



• the Employer had intentions of dismissing him in the three (3) years before his actual dismissal. The Union assisted him to solve his issues.

EMPLOYER’S SUBMISSION

[10] In summary, the Employer submits that:

• the Applicant has been in Australia since 2003;



• showed no signs of a lack of understanding of English in his employment for the past three (3) years. This understanding of English was demonstrated through the corporate induction, safety induction and “relevant paperwork” prior to attending a mine site. Further, a lack of understanding was not noticed during continual interaction with the Applicant’s work colleagues and when issued with warnings;



• Mr Yohannis claimed in his employment application that he holds a Bachelor’s Degree and Certificate IV in small business attained in Melbourne;



• it was unaware of any back injury or the disability pension, and in any event, this should not prevent him from completing a “form filling process”; and



• whether or not the Employer was trying to dismiss him previously has no relevant to consideration of an extension of time to file the application.

RELEVANT BACKGROUND

[11] On 5 June 2014, the Applicant filed an application in the WAIRC alleging unfair dismissal.

[12] The Employer responded to the application on 25 June 2014. The Employer’s response was extensive and the Employer requested the Applicant be given time to read and digest the comprehensive set of documents provided with the response.

[13] A conference of the parties in the WAIRC took place on 11 August 2014.

[14] While a settlement was not reached at the conference, it was adjourned for three (3) days to enable the Applicant to consider an offer by the Employer.

[15] On 13 August 2014, the Applicant advised the WAIRC that he had considered his position and had decided to proceed with the matter in another jurisdiction. Mr Yohannis discontinued his application in the WAIRC.

CONSIDERATION

[16] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[17] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[18] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[19] The burden lies with Mr Yohannis to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I shall now consider those circumstances as set out by the Applicant within the legislative provisions.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[20] The Applicant claims that the delay was due to his lack of understanding of the English language and he made a mistake in filing the application in the WAIRC. While the Employer has sound reasons to dispute the Applicant’s alleged lack of understanding of English, the process in the WAIRC ran its course and culminated in the Applicant rejecting an offer to resolve his application. It appears the Employer did not raise any jurisdictional objection to the matter being dealt with in the WAIRC.

[21] Shortly put, the Applicant did make a mistake in filing the application in the WAIRC. Notwithstanding this mistake, the parties were unable to reach agreement in the WAIRC and consequently, on the same day, Mr Yohannis discontinued his application in the WAIRC, he made application in the federal jurisdiction.

[22] Making the wrong choice is not out of the ordinary, exceptional, unique, unusual, rare or uncommon. Making the wrong choice is a familiar everyday occurrence.

[23] At the meeting on 7 May 2014, in which he was advised that his employment would cease on 4 June 2014, Mr Yohannis concluded the discussion with the words that he would speak to “his Union and Lawyers”. It appears he did neither, and consequently, filed an application in the wrong jurisdiction and beyond the standard timeline in this Commission.

[24] I note that Mr Yohannis on 14 September 2014, approximately nine (9) months before his dismissal, signed a document to confirm that he had received a “Fair Work Commission” approved enterprise agreement, and that he would be bound by the terms and conditions of that agreement. The first line of the accompanying memorandum with the enterprise agreement, which Mr Yohannis signed, specifically refers to the “Fair Work Commission”.

[25] I agree with the Employer that if the back injury is a relevant consideration for the delay in filing the application, it would not have prevented the Applicant from the “simple form filling process” in an application to the Commission. Further, an entitlement to a disability pension could not be achieved without a similar form filling process - one would expect it to be more extensive.

[26] In summary, for the reasons above, I am not satisfied that the reasons for the delay were exceptional. The circumstances indicate that the Applicant made a wrong choice of jurisdiction, waited until the WAIRC processes were completed, appears to have not sought union or legal advice and overlooked documents provided by the Employer which indicated the appropriate jurisdiction in which the application should have been lodged.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[27] The parties agree that Mr Yohannis was dismissed on 4 June 2014.

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

[28] I have detailed above in paragraph [11] to [15] what action the Applicant took to dispute the dismissal; it is not necessary to repeat the details.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[29] Both parties do not address this criterion in their submissions.

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

[30] The Applicant claims that the Employer has been trying to dismiss him for three (3) years prior to his actual dismissal.

[31] The Employer has provided a comprehensive documented history of Mr Yohannis’ performance approvals assessments, file notes and warnings.

[32] Irrespective of whether Mr Yohannis has signed the warnings, the documentation, in total, sets out a history of what appears to be unsatisfactory performance.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[33] It would appear that this criterion is not relevant. To the extent it is relevant, I adopt a neutral position with respect to this criterion.

CONCLUSION

[34] In conclusion, for the reasons set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Mr Yohannis filing his application. An Order to this effect will be issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 21 and 23 September 2014.

Respondent: 23 September 2014.

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