Mrs Wanthana Jutilamtong Mr Ananda Jutilamtong Mr Vorapoj Jutilamtong v Rsocan Pty Ltd ATF Ronaldo Socan Trust T/A Peak Thai Restaurant
[2019] FWC 5566
•9 AUGUST 2019
| [2019] FWC 5566 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Wanthana Jutilamtong
Mr Ananda Jutilamtong
Mr Vorapoj Jutilamtong
v
Rsocan Pty Ltd ATF Ronaldo Socan Trust T/A Peak Thai Restaurant
(U2018/13512; U2018/13514; U2018/13515)
DEPUTY PRESIDENT ASBURY | BRISBANE, 9 AUGUST 2019 |
Application for an unfair dismissal remedy – Further period in which to make application sought – Section 394(3) – Consideration of whether there are exceptional circumstances – Commission not satisfied that there were exceptional circumstances taking into account matters in s. 394(3) – Grant of further period refused.
BACKGROUND
[1] This Decision concerns three separate applications for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) by Mrs Wanthana Jutilamtong, Mr Ananda Jutilamtong and Mr Vorapoj Jutilamtong (the Applicants) with respect to their dismissal by Rsocan Pty Ltd ATF Ronaldo Socan Trust t/a Peak Thai Restaurant (the Respondent). I refer to the applicants (with their permission) as Mrs Wanthana, Mr Ananda and Mr Vorapoj.
[2] Mrs Wanthana and Mr Vorapoj are married and Mr Ananda is their son. Mr Ananda is 21 years old. Mr Vorapoj was employed as head chef and Mrs Wanthana and Mr Ananda were employed as front of house/wait staff at the Peak Thai Restaurant from September 2016 until the termination of their employment on 6 December 2018.
[3] The Applicants were notified collectively of their dismissal via email on 6 December 2018. It is not in dispute that the dismissal took effect on that date. The Applications were made on 28 December 2018. By virtue of s. 394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 394(3). The applications were required to be made by 27 December 2018 and were made one day outside the time required.
[4] The Respondent objected to the applications on the basis that they were made outside the statutory time limit. The Respondent also objected to the applications on the ground that in dismissing the Applicants it complied with the Small Business Fair Dismissal Code. It is necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the applications to be made.
[5] The hearing of these matters was delayed significantly due to difficulties in securing a qualified Thai interpreter which was required by the Applicants necessitating cancellation of two listings.
EVIDENCE
[6] The Applicants travelled to Thailand for a holiday on Tuesday 27 November 2018. It is not in dispute that they were granted leave for this purpose. During the holiday they attended the wedding of the brother of Mr Vorapoj. On 6 December 2018 an email was forwarded by the General Manager of Peak Thai, Mr Socan, to Mr Vorapoj attaching a letter in the following terms:
“Please note you here by served this termination letter 1 week advance due to your failure to take direction and orders from the director and owners of Peak Thai.
You leave us with no choice but to terminate your employment effective immediately, Peak Thai will calculate all your entitlement and have you all update and paid in two week but you are to return all things belong to Peak Thai including the Motorcycle and Stock and freezer at your house.
It has been a pleasure working with you and we wish you the best in the near future.
Kind regards,
Ronaldo Socan
General Manager – Peak Thai”
[7] The covering email stated that the attached letter is a termination letter that also served as notice to Mrs Wanthana and Mr Ananda that their services were no longer needed.
[8] Immediately prior to the letter being sent to Mr Vorapoj there was an exchange of text messages between Mr Vorapoj (referred to as Woody) and Mr and Mrs Socan in relation to staffing at the Peak Thai Restaurant. The exchange (appended to the Form F3 Employer responses to the applications and tendered at the hearing) commenced on Saturday 2 December 2018. It includes a number of text messages where Mr Vorapoj states his view that his family is no longer required to work at Peak Thai Restaurant and that as a result he can stay longer on his holiday and concludes with an exchange in which Mr Socan advises that he has emailed a termination letter and thanks “Woody and family” and Mr Vorapoj responds stating “thank you I got it”.
[9] The exchange also includes a number of text messages in which Mr Vorapoj questioned the superannuation entitlements of himself and his family and the basis upon which they were employed. The text messages conclude with arrangements being made for the return of property as a result of the termination of the Applicants’ employment. The exchange of text messages occurred on the wedding day of Mr Vorapoj’s brother.
[10] It is apparent from the information set out in the applications and the evidence before the Commission that all three of the Applicants accepted that the letter of 6 December 2018 terminated their employment with effect from that date. Mr Vorapoj and Mrs Wanthana returned to Australia from their holiday on 11 December 2018. Mr Ananda returned to Australia on 14 January 2019. Mrs Wanthana and Mr Vorapoj acted on behalf of Mr Ananda who stated in his evidence that he took no action on his own behalf to dispute the termination of his employment, but placed the matter in the hands of his parents.
[11] The evidence of Mr Vorapoj and Mrs Wanthana is that they attended the Office of the Fair Work Ombudsman (FWO) at some time between 17 and 21 December 2018. They state that this was likely on 19 December 2018, although the exact date could not be verified. Mr Vorapoj and Ms Wanthana state that at a meeting with staff of the FWO they were advised of the following:
• They could make applications with the FWO regarding unpaid wages and superannuation;
• They could not make claims regarding unfair dismissal with the FWO;
• A claim for unfair dismissal would need to be lodged with the Fair Work Commission (the Commission);
• Such an application could be lodged online through the Commission’s website;
• There is a 21 day statutory time limit for lodging an application for unfair dismissal with the Commission, starting on the day that the dismissal takes effect.
[12] Following receipt of this information from the FWO neither Mr Vorapoj nor Mrs Wanthana took any substantive action in the following days to lodge the unfair dismissal applications with the Commission. Mr Vorapoj stated that he was busy during this time going to Centrelink and applying for other jobs. Mr Vorapoj and Mrs Wanthana also stated that they sought the advice of a friend in the days following the meeting with the FWO and that they received an explanation about what a claim for unfair dismissal required and entailed. They also viewed an application form for unfair dismissal online on or around 18 or 19 December 2018. Mr Vorapoj said that he did not understand the unfair dismissal application form and required the assistance of a friend to explain it. At the hearing, Mr Vorapoj and Mrs Wanthana agreed with the proposition that they were aware an unfair dismissal application had to be filed by 27 December 2018.
[13] Mr Vorapoj and Mrs Wanthana again attended the FWO Offices at approximately 3pm on 27 December 2018 and state that at this meeting they attempted to lodge an application. Other than stating that they had downloaded an application from the internet, the Applicants were unable to provide information about the type of application they attempted to lodge with the FWO on 27 December 2018. It appears that Mr Vorapoj and Mrs Wanthana also submitted some documentation to the FWO in relation to their wages and superannuation entitlements either on 27 December 2019 or during their earlier visit to the office of the FWO. I provided an opportunity for the Applicants to tender a copy of the application they attempted to lodge on 27 December 2019 and after the hearing they forwarded the cover sheet of a Form F8 General Protections Application involving Dismissal. The Applicants were only able to produce the cover sheet for the application and could not provide a copy of what they had attempted to lodge.
[14] Mrs Wanthana and Mr Vorapoj also stated that at the meeting on 27 December 2018 FWO staff advised that the Office of the FWO was not the correct institution for lodging an unfair dismissal application and directed them to the Commission. Mr Vorapoj stated that he did not believe there would be enough time to go to the Registry of the Commission to lodge an application as it was already between 3pm and 4pm in the afternoon of 27 December 2018 when they left the Office of the FWO. In response to a question from me about why if the Applicants were aware that the application had to be filed by 27 December 2018 they did not lodge the forms by email, Mr Vorapoj said he was unsure whether he had the correct form, and wanted to see an “officer” at the Fair Work Commission first.
[15] On the morning of 28 December 2018 Mr Vorapoj attended the Registry of the Commission and received several hard copies of the Form F2 Unfair Dismissal Application. Mr Vorapoj returned home with these documents. He then sought and received assistance from a friend who helped to explain the process of completing the application and assisted Mr Vorapoj to complete the forms. Mr Vorapoj said that Mrs Wanthana completed a form on Mr Ananda’s behalf. Mr Vorapoj then returned to the Commission office on the afternoon of 28 December 2018 to lodge the three completed Form F2 Unfair Dismissal applications.
CONSIDERATION
The approach to determining whether a further period should be granted
[16] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:
“(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.”
[17] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:
• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.1
[18] 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.2
[19] The assessment of whether “exceptional circumstances” exist requires consideration of all of the relevant circumstances. No one factor, such as the reason for the delay need be found to be exceptional in order to enliven the discretion to extend time. However an absence of any explanation for any part of the delay will usually weigh against an extension while an acceptable explanation for all of the delay will usually weigh in favour of an extension. It is necessary to take each factor into account by considering and giving appropriate weight to it. 3
[20] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application and does not include the period from the date of the dismissal to the end of the 21 day period. 4 It is not a pre-condition to the grant of an extension of time that an applicant provide a credible explanation for the entire period of a delay and an extension may be granted where an applicant has not provided any explanation for any part of the delay.5 Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.6 Events and circumstances prior to the dismissal and in the period from the dismissal to the date the prescribed 21 day period expired may also be relevant to explaining a delay or to considering other matters in s. 394(3) to determine whether there are exceptional circumstances justifying the grant of a further period in which to make an unfair dismissal application. As the majority in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank observed:
“The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. 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.” 7
[21] I turn now to consider each of the matters in s.394(3) of the Act.
Reasons for the delay – s.394(3)(a)
[22] The 21 day period for making the applications in the present case expired on 27 December 2018. The applications were filed one day outside that period on 28 December 2018. The reasons for delay provided by the Applicants are that they were in Thailand at the time they were notified of their dismissal by email on 6 December 2018 and sought assistance from the FWO after their return from Thailand on 11 December 2019. It is also appears from the evidence that the Applicants were confused about the kind of application they should file. The Applicants also stated that their poor English led to confusion distinguishing between the Commission and the FWO.
[23] As previously noted the circumstances at or from the time of a dismissal may be relevant to consideration of the reason for the delay in filing the application and whether that reason constitutes exceptional circumstances. I accept that the Applicants were dismissed by email while they were in Thailand on holiday attending a family wedding. I also accept that an email with no apparent reasons is not a desirable method to effect termination of employment. I further accept that the approach of using a single email to effect the dismissal of three employees is not appropriate. However, in the present case, I do not accept that the timing or the method of dismissal provides a reason for the failure of the applicants to lodge their applications within the required 21 day period such that the reason constitutes exceptional circumstances.
[24] Mr Vorapoj and Mrs Wanthana (who were also acting on behalf of Mr Ananda) returned to Australia before the 21 day period in which to lodge their unfair dismissal application had expired. It is also the case that by at least 21 December 2018, the Applicants were informed by the FWO that there was a 21 day time limit for lodging an unfair dismissal application with the Commission and that they could lodge the application on line. Further, Mr Vorapoj and Mrs Wanthana attended the office of the FWO on the afternoon of 27 December 2018 and were informed that the application they sought to file was not an unfair dismissal application and that such an application needed to be filed with the Commission. Mr Vorapoj and Mrs Wanthana had previously viewed forms relevant to contesting their dismissal on line and no explanation was provided as to why they could not have done this having been informed by the FWO of the need to make an unfair dismissal application within 21 days of their dismissals taking effect.
[25] Mr Vorapoj and Mrs Wanthana also stated that they did not attempt to attend the Commission on 27 December 2019 as it was already 3pm or 4pm in the afternoon, and they did not attempt to email an application as they wanted assistance completing the form first. There was no explanation as to why they could not have sought an explanation about the form and how to complete it in a timely manner, given that they had previously viewed the form on line.
[26] While Mr Ananda was in Thailand for the whole of the 21 day time period, returning to Australia on 14 January 2019, this did not prevent an application being filed on his behalf one day outside the required time. This indicates that Mr Ananda’s absence overseas did not have a bearing on his ability to submit an application, whether in or outside the statutory time limit and his absence is also not an exceptional circumstance.
[27] There may be cases where the fact that a dismissal is effected while an employee is on holiday (whether overseas or not) provides an explanation for delay in making an unfair dismissal application. This circumstance, alone or in combination with other circumstances may be exceptional given that generally employers do not dismiss employees while they are taking pre-arranged and agreed leave. However, this is not a case where a dismissal during an absence on leave provides an acceptable explanation for the delay in filing an application.
[28] In all of the circumstances, I am not satisfied that the Applicants have provided an acceptable explanation for the delay in making their unfair dismissal application. The fact that the Applicants were on holiday in Thailand when they were dismissed or that they had difficulty understanding English or were confused in relation to the difference between the FWO and the Commission or that they had to seek other employment does not explain the delay in making the application. None of these matters – either individually or in combination – are exceptional circumstances. This weighs against the grant of a further period in which to make the applications.
Whether the person first became aware of the dismissal after it had taken effect – s.
394(3)(b)
[29] The Applicants became aware of the dismissal on the date that it took effect on 6 December 2018. While I accept that they were on holidays in Thailand at the time, this did not create any confusion or lack of clarity about the date they were dismissed or when the dismissal took effect. This is a neutral factor in determining whether a further period in which to make the applications should be granted.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
[30] Other than seeking information from the FWO in relation to the dismissals and their entitlements there is no evidence that the Applicants attempted to dispute the dismissal with their employer. The text message exchange between the Applicants and the Respondent on the day of the termination, 6 December 2018, appeared to end in a civil manner:
Lina: “I didn’t get email yet! Ray”
Mr Vorapoj: “Also your wife said to Peakthai staff she kicked me and my wife out Already last night. Should be fine I heard someone tell me before I’m holiday.”
Mr Vorapoj: “Thank you so much (smiling emoji) for everything. After I get back Someone will contact You Guys and Company. Thank you so much again for everything.”
Ray Socan: “I email you termination letter thank you Woody and Family!”
Mr Vorapoj: “Thank you I got it.”
[31] I have weighed this consideration as being neutral.
Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)
[32] There is no evidence that the employer will suffer any prejudice from the delay in the application being made, other than the usual prejudice of having to defend an unfair dismissal application. This is a factor that weighs in favour of a further period being granted.
The merits of the application – s.394(3)(e)
[33] In the matter of Kornicki v Telstra-Network Technology Group 8 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 9
[34] There are significant factual discrepancies in the Applicants’ and Respondent’s views regarding the merits of the applications. The Respondent contends that the Applicants were dismissed for serious misconduct and that the dismissals were consistent with the Small Business Fair Dismissal Code. The Applicants contend that they were dismissed because they had made enquiries about their superannuation and/or paid leave entitlements.
[35] These are disputed facts which could only be resolved by evidence. In these circumstances I have considered the merits as a neutral factor in my determination.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[36] The outcome for each Applicant was the same in these cases, and there are no other employees in a similar position that they have brought to the Commission’s attention. This is a neutral factor. If this consideration requires fairness to be considered on a broader scale, then a refusal to grant a further period in the circumstances of this case will not be inconsistent with other cases where employees have been refused a further period when the reasons for the delay have been similar or the same as those provided in the present case.
CONCLUSION
[37] After weighing each of the matters I am required to consider, I am not satisfied that when they are considered individually or collectively, there are exceptional circumstances taking into account the matters in s. 394(3) of the Act such that the discretion to grant a further period in which to make the applications should be exercised in favour of the Applicants. Accordingly, the applications must be dismissed and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR711199>
1 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
2 Nulty v Blue Star Group [2011] FWAFB 975.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] – [39].
4 Stogianniadis op. cit. at [22].
5 Stogianniadis op. cit. at [40].
6 Ibid at [15].
7 [2015] FWCFB 287 at [12].
8 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
9 Ibid
0
4
0