Mr Tafese Bizuneh v Australian Electoral Commission
[2023] FWC 2748
•6 NOVEMBER 2023
| [2023] FWC 2748 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Tafese Bizuneh
v
Australian Electoral Commission
(C2022/8116)
| DEPUTY PRESIDENT CROSS | SYDNEY, 6 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal
Mr Tafese Bizuneh (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that he had been dismissed from his employment with the Australian Electoral Commission (the Respondent) in contravention of Part 3-1 of the FW Act.
In the Application, the Applicant claimed that he was notified of his dismissal on 6 December 2021, and that the dismissal took effect on that date. It is a matter of record that the Application was made on 7 December 2022.
In response to the Application, the Respondent raised the jurisdictional objection that the Application was filed out of time. Pursuant to s.366(1) of the Act, General Protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Commission may allow.
If the alleged dismissal took effect on 6 December 2021, the Application has been made outside of the time prescribed, and 345 days after the last day on which such an application could have been made, being 28 December 2021.
Directions were issued for the filing of materials for the determination of whether the Applicant would be allowed an additional period within which to lodge the Application. Pursuant to the Directions the parties filed materials. In particular:
(a) On 16 January 2023, the Applicant filed an Outline of Submissions (the Applicant’s Submission) with attachments;
(b) On 27 January 2023, the Respondent filed an Outline of Submissions (the Respondent’s Submission) together with a tender bundle; and
(c) On 26 September 2023, the Applicant filed a Submission in Reply (the Applicant’s Reply).
On 26 September 2023, the Applicant consented to the determination of whether the Applicant would be allowed an additional period within which to lodge the Application to be heard “on the papers”.
Background Facts
The Applicant was engaged as a casual employee by the Respondent in the role of Temporary Office Assistant, under a written employment agreement signed on 26 October 2021 (the Contract). Pursuant to the terms of the Contract, the Applicant was a non-ongoing, casual, employee engaged for irregular or intermittent duties with no guaranteed hours.
The Contract included a proposed start date of 8 November 2021. The Applicant was engaged to perform work on three days, being 11 and 30 November, and 3 December 2021.
The Respondent claimed that the Applicant’s conduct in the workplace during his final shift on 3 December 2021 was not appropriate and did not display the values of the Australian Public Service, and so the Respondent exercised its right to summarily terminate the Applicants’ casual employment. The termination took effect on 6 December 2021.
On 10 December 2021, four days after his employment was terminated, the Applicant Contacted Mr Tom Rogers, Commissioner Australian Electoral Commission (‘AEC’) by email, attaching a detailed complaint letter. Mr Rogers referred this email to Ms Terrianne Dwyer, Director, Employee Relations and Wellbeing.
At 6.45PM on 10 December 2021, under the title “Unjust and unlawful termination of employment and stolen wage”, Ms Dwyer wrote to the Applicant as follows:
Dear Mr Bizuneh,
I am responding in relation to your letter to the Commissioner, Tom Rogers of earlier today. Your letter has been referred to me for review and action. I will be your point of contact for these concerns going forward. I will be reviewing the material you have provided and will be in touch with you again next week.
If there is further information you wish to supply in relation to the matters you have raised, please send them directly through to me.
Kind Regards
Terrianne Dwyer
At 3.50PM on 20 January 2022, Ms Dwyer wrote to the Applicant as follows:
Subject: RE: Unjust and unlawful termination of employment and stolen wage
Good afternoon Tafese
My apologies for not getting back to you sooner. I have nearly finished my assessment and just working through a few last areas for further information from the work area. Unfortunately due to the AEC shut down period from 24 Dec to 4 Jan and staff leave following this period, this has delayed my progress.I hope to have the outcome to you soon.
Thank you for your patience in this matter
Kind regards
At 10.08AM on 7 February 2022, under the title “Unjust and unlawful termination of employment and stolen wage”, Ms Dwyer wrote to the Applicant as follows:
Good morning Tafese
I am continuing to work on your complaint and am waiting on the submission of some final documents from the work area. I understand this has taken considerable time, but it is important that I have all the relevant information.
I will write again once I have further information
regards
On 15 February 2022, 71 days after his dismissal took effect, the Applicant commenced proceedings against the Respondent in the Federal Court (the Federal Court Claim). The Federal Court Claim generally alleged breaches of the unfair dismissal and general protections provisions of the Act, and breaches of federal anti-discrimination laws.
On 3 March 2022, the Respondent made an interlocutory application to dismiss the Federal Court Claim. Following the initial case management hearing on 7 March 2022, the Applicant was given leave to replead his case. The Applicant subsequently abandoned allegations of breaches of the unfair dismissal and general protections provisions of the Act, and breaches of federal anti-discrimination laws, but made allegations of breach of the Public Service Act1999 (the PS Act).
In his submissions dated 4 April 2022, resisting the Respondent’s interlocutory application, the Applicant made submissions that acknowledged the existence of the Commission, but sought to provide basis for his preference to proceed in the Federal Court. Those submissions included the following:
10. The FWC has no jurisdiction to deal with my General Protections application and make compensation order in the amount I claimed in my Statement of Claim. Section 392(6) of the Act:
The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal
11. Unlike the Federal Court of Australia, the FWC has no power to order compensation
for reasons such as pain and suffering, shock, distress, hurt or humiliation which my
Statement of Claim is based on.
The Respondent maintained its application to have the Federal Court Claim dismissed, and on 7 October 2022, was successful in having all but the part of the Federal Court Claim regarding the PS Act struck out. In her decision,[1] Justice Raper noted that the Applicant had abandoned his claims under the Act and federal anti-discrimination laws.
The Applicant was given another chance to replead his case regarding the PS Act, but on 13 October 2022, chose to discontinue the Federal Court Claim.
The Application was filed on 7 December 2022, 55 days after the discontinuance of the Federal Court Claim.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 366 provides a time limit for the filing of applications under s 365:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
(a) Reason for the delay
In the Applicant’s Submission, the sole reason proffered for delay related to the two month period within which Ms Dwyer was finalising his complaints regarding the termination. In the Applicant’s Reply, after repeating his previous submission, the Applicant added further assertions that he was “left in a state of distress and uncertainty”, and:
However, as my complaint lingered in limbo, I found myself in a dire financial situation, left without compensation and struggling to meet even my basic needs- that include food and medication. This prolonged period of uncertainty has not only taken a toll on my livelihood but has also placed an undue burden on my well-being. I implore that my situation be addressed promptly and justly, ensuring that my rights as an employee are upheld and that I am not left to endure further suffering.
In relation to the reason for the delay, the Respondent submitted, prior to the additional submissions of the Applicant’s Reply:
The Applicant's explanation for the delay in bringing his application is based, in part, on the internal complaint he made to the Respondent about his dismissal. The Respondent does not deny that the Applicant made an internal complaint but says that the internal complaint should not have prevented the Applicant from making an application to FWC within the time period, and in fact it did not prevent the Applicant from filing proceedings in the Federal Court.
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2], the Full Bench of the Commission held:
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
[Emphasis added]
Both the Applicant and the Respondent sought to rely on Merlino v Coles Supermarkets Australia Pty Ltd[3](Merlino). In Merlino, the applicant argued that exceptional circumstances existed to warrant a 25-day extension of time because he alleged, he was misled by his employer to believe that his dismissal was stayed while allegations he made about a manager who was involved in the dismissal investigation were being reviewed. The Commission, finding that exceptional circumstances did exist and that an extension of time should be granted, held:
[43] In the present case, it is established on the evidence, and accepted by Ms Lauder, that she did advise Mr Merlino to the effect that a decision to dismiss an employee could be overturned if sufficient evidence was provided. Ms Lauder then proceeded to advise Mr Merlino of how to formalise his concerns.
[45] I do not find that Coles’ representatives in this matter deliberately set about to mislead Mr Merlino to delay the lodgement of his unfair dismissal application and I do not understand that Mr Merlino asserts this. I do find however, that Ms Lauder’s statements to Mr Merlino after the termination meeting had finished led him to believe that had he put in enough evidence regarding the matter, his dismissal could be overturned, and that this belief was reasonable. Ms Stevenson and Mr Scates, who both knew Mr Merlino had been dismissed and that he was unhappy about this, did nothing to disabuse him of this belief.
Unlike the facts in Merlino, there is no evidence that the Respondent, formally or informally, communicated or conveyed to the Applicant that the internal complaint process could lead to his dismissal being overturned. The Respondent did not discourage the Applicant from filing the general protections claim, nor did it in any way mislead the Applicant into waiting for the outcome of the investigation prior to filing a general protections claim.
However, even if it was accepted that the two month period within which Ms Dwyer was finalising his complaints regarding termination constituted a credible explanation for that two month period, it goes no way to explaining the delay for the balance of the period being approximately nine and a half months. In relation to that latter period, it is apparent that, while the Applicant was clearly aware of the Commission’s jurisdiction and powers, he chose to agitate his claim in the Federal Court.
Even after the discontinuance of the Federal Court Claim, the Applicant displayed a distinct lack of urgency in making the Application, such Application not being filed for a further 55 days from that discontinuance. On its own, that delay is simply inexplicable, and weighs heavily against the Applicant.
Finally, insofar as the Applicant claims in the Applicant’s Reply that he was he was left in a state of distress and uncertainty for an unexplained period of time, I reject that represented a credible explanation for any period of the delay. The detailed participation of the Applicant in the Federal Court Claim discloses that the Applicant was not in any way precluded from advancing his interests promptly and completely.
I find that none of the reasons for the delay advanced by the Applicant constitute credible explanations for all, or part, of such delay, and that is a factor that weighs against the Applicant in this matter.
(b) Any action taken by the person to dispute the dismissal
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. The Applicant clearly sought to agitate his claims promptly and directly with the Respondent through Ms Dwyer. I consider those steps to constitute action to dispute the dismissal.
The Federal Court Claim however, while also disputing the dismissal, stands in contrast to the communications with Ms Dwyer. Far from forewarning the Respondent of the Application, the Federal Court Claim clearly eschewed the Application.
In all the circumstances, I find that the Applicant took action to dispute the dismissal after it occurred by his communications with Ms Dwyer, however that action ceased with the commencement of the Federal Court Claim. This circumstance weighs only slightly in favour of the Applicant and a conclusion that there are exceptional circumstances due to the period of delay in total, and the period between the last correspondence between the parties and the commencement of the Application.
(c) Prejudice to the employer (including prejudice caused by the delay)
The Respondent submitted that it had already spent a considerable amount of time and legal costs responding to the Federal Court Claim, which was ultimately lacking in merit and largely dismissed, and otherwise discontinued. The Respondent submitted there is significant prejudice to the Respondent in having to incur further time and legal costs in dealing with the Application.
The delay in this matter is considerable, and I accept it presents prejudice to the Respondent in again having to resist a claim of the Applicant relating to his dismissal. I find that in the circumstances there would be prejudice to the Respondent if an extension of time were to be granted. However, the mere presence of prejudice, significant or otherwise, is not necessarily a factor which weighs in favour of the Respondent against an extension of time. I consider this factor is a neutral consideration.
(d) The merits of the application
The Act requires me to take into account the merits of the Application in considering whether to extend time. It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
(e) Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protection’s application.
Regarding fairness as between the Applicant and other persons in a similar position, neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant and the Respondent, I am not satisfied that there are exceptional circumstances.
My conclusions in this matter have been that the factor that weighs in favour of the Respondent and against the Applicant was the absence of any acceptable reason for what is a significant delay. While action taken to dispute the dismissal weighed slightly in the Applicant’s favour, my overall assessment of the relevant factors leads to a conclusion that I am not satisfied that there are exceptional circumstances. In those circumstances, there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the Application.
An extension of time is therefore refused and the Application for a general protections remedy made by the Applicant is dismissed. An order to that effect will be separately issued.
DEPUTY PRESIDENT
Hearing details:
Determined on the papers.
[1] Bizuneh v Commissioner, Australian Electoral Commissioner [2022] FCA 1198.
[2] [2018] FWCFB 901.
[3] [2015] FWC 1185.
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