Musa Kamara v Auto Parts Group Pty Ltd
[2020] FWC 4860
•16 SEPTEMBER 2020
| [2020] FWC 4860 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Musa Kamara
v
Auto Parts Group Pty Ltd
(U2020/7140)
DEPUTY PRESIDENT DEAN | SYDNEY, 16 SEPTEMBER 2020 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application by Mr Musa Kamara (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant had been employed by Auto Parts Group Pty Ltd (the Respondent) as a Storeperson.
[2] There is a dispute as to when the termination of employment took effect and whether the Applicant resigned or was dismissed. The Applicant claims that he became aware of his dismissal on 27 April 2020. The Respondent contends that the Applicant resigned on 20 April 2020. The unfair dismissal application was lodged on 22 May 2020.
[3] Section 394(2) of the Act states that 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 pursuant to s 394(3).
[4] Whether the Applicant’s employment ended on 20 or 27 April 2020, the application was made outside the 21 day time limit allowed by the Act. Accordingly, I must decide whether an extension of time should be granted.
[5] At the hearing on 8 September 2020, Mr A Bangura, solicitor, appeared with permission for the Applicant. Ms A Reynolds (In House Counsel) appeared for the Respondent.
[6] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may 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 can be considered exceptional.2
[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.
Reason for the delay
[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.3
[10] The Applicant submitted the following reasons for the delay:
• He was initially unable to seek legal advice due to financial hardship, and by the time he could obtain legal assistance the 21 day time limit had expired.
• He was unable to complete the application by himself as he has limited knowledge and understanding about the Commission processes and procedures.
• Due to the COVID-19 pandemic and the restrictions requiring social distancing, he was unable to meet with his lawyers until 22 May 2020; the application was filed immediately on that day.
• His difficulties were exacerbated by health issues. As a result of the dismissal he had become depressed and felt traumatised.
[11] The Respondent submitted that none of these matters can be considered exceptional circumstances and are not unusual, special or uncommon. Further, they are not support by any evidence.
[12] Having considered the evidence and submissions made by the parties, I find that the reasons provided by the Applicant do not constitute an acceptable reason for the delay. I do not accept that the Applicant’s financial position prevented him from obtaining advice because he subsequently did obtain legal advice and representation during this hearing. As to the contention that the Applicant had limited knowledge of the Commissions’ procedures, this is not unusual or uncommon. Most applicants would not have knowledge of Commission procedures, but are not prevented from making an application for an unfair dismissal remedy because of their lack of knowledge in this regard. I do not accept that the COVID-19 pandemic and the social distancing restrictions meant that the Applicant was unable to be provided with advice from his lawyers. There is no reason this advice had to be provided in person rather than by telephone. I do not accept that the Applicant’s health issues were of such magnitude as to render him incapable of making his application within the statutory timeframe.
[13] Overall, this weighs against a finding that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[14] Notwithstanding the conflict as to whether the Applicant resigned or was dismissed, it is clear that he became aware by 27 April that his employment ended and had the full 21-day period to lodge his application. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
[15] The Applicant did not take any action to dispute his dismissal until this application was lodged. This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer
[16] The Respondent submitted that it will be prejudiced if the extension of time is granted as evidence from their surveillance systems, being the recording of the telephone conversation on 20 April 2020, could no longer be retrieved due to the delay.
[17] I do not consider that the Respondent would suffer any prejudice if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[18] The Act requires me to take into account the merits of the application in considering whether to extend time.
[19] The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed.
[20] The Applicant gave evidence as to his version of events leading to the alleged dismissal. In support of this evidence he provided screenshots of text message exchanges he had with his manager.
[21] It was the Applicant’s evidence that on Friday 17 April 2020, whilst being stood down due to Covid-19 from 6 April, he was advised by his manager that there was work available and that he would return to work the following Monday.
[22] On Sunday 19 April 2020, the Applicant sent a text message to his manager which reads: “Hi Gimmy I want to let you know I can’t make it on Monday after I spoke to you something comes up which I have to attend to am sorry about that How about Tuesday and on”. His manager responded about an hour later: “Hi Musa, ok I call you tomorrow.”
[23] The Applicant gave evidence that he attempted to telephone his manager on Monday 20 April 2020 to find out whether he should attend work the following day but could not make contact. He later received a text message from him which stated: “Hi Musa, I was calling to say that we have to cancel for the rest of the week. Sorry”
[24] The Applicant said that he telephoned his manager on 27 April 2020 to ask if there was any work. To his surprise he was told that his employment was terminated. Upon asking the reason for the dismissal, he was told to contact his supervisor (John) and later received the contact telephone number in a text message from his manager. The Applicant said that he then contacted John and made similar enquiry and was told to contact the HR department in Queensland. Failing to ascertain the reason for his dismissal, he was subsequently told that the termination letter would be mailed out to him.
[25] The Applicant referred to receiving a termination letter (Employment Separation Certificate dated 30 April 2020) on 14 May 2020. He testified that he was shocked to learn he was said to have resigned voluntarily.
[26] The Applicant claimed that he had never expressed any intention to resign. He pointed out that he was stood down during the height of the global health pandemic and it would be highly unusual for someone in his position to voluntarily relinquish their employment at that point in time. He said that he did not look for work elsewhere as he was led to believe that he was only stood down temporarily by the Respondent and that he would resume work when things returned to normal. He tendered an income statement issued by Centrelink which states that he has been in receipt of JobSeeker Payment since 23 March 2020.
[27] The Respondent on the other hand maintained that the Applicant was not dismissed but resigned during a telephone call on 20 April 2020.
[28] Ms Reynolds gave evidence that she undertook an investigation upon receiving the unfair dismissal claim and made enquiries with the relevant employees. She said her investigation established that the Applicant called the Respondent on 20 April 2020 to advise that he had found other work and that during this telephone conversation his resignation was verbally accepted. Relevantly she concluded that the following occurred on 20 April:
• the Respondent called the Applicant at 11.55am however the phone was not answered by the Applicant;
• the Respondent then texted the Applicant at 11.56am and said ‘was calling to say that we have to cancel for the rest of the week, sorry’;
• the Applicant called the Respondent at 12.03pm after receiving this text and advised that he had found other work, at which time the Respondent verbally accepted his resignation.
[29] The Respondent did not adduce evidence from any persons who had direct knowledge or involvement about the matter. Ms Reynolds contended that merit is only one of the factors to be considered in an extension of time application and detailed evidence on the issue was therefore not necessary for the purpose of these proceedings. She said that if the matter proceeded to a full hearing on the substantive application, evidence as to the phone call would be presented.
[30] It is evident 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, in particular whether the Applicant resigned or was dismissed.
[31] While it is not possible to make any firm or detailed assessment of the merits, I consider it is more likely than not that the Applicant would not have resigned in circumstances where he did not have alternative employment, and in the middle of a pandemic. I consider the merits to weigh in favour of a finding there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
[32] 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 an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I do not consider there being any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
[33] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
A Bangura for Musa Kamara.
A Reynolds for Auto Parts Group Pty Ltd.
Hearing details:
2020.
Sydney (By telephone):
September 8.
Printed by authority of the Commonwealth Government Printer
<PR722673>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
2 Ibid.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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