Ngu Phan v GJK Facility Services Pty Ltd T/A GJK Facility Services

[2017] FWC 60

[2017] FWC 60

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ngu Phan
v
GJK Facility Services Pty Ltd T/A GJK Facility Services
(U2016/8960)

COMMISSIONER LEE MELBOURNE, 31 JANUARY 2017

Application for relief from unfair dismissal - extension of time - representative error - time extended.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 4 November 2016. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy.

[2] The application was lodged by Mr Ngu Phan (the Applicant) against GJK Facility Services Pty Ltd t/a GJK Facility Services (the Respondent). The matter was listed for Extension of Time Conference/Hearing before me on 4 November 2016. Mr Ben Lyons of United Voice appeared on behalf of the Applicant. The Respondent was aware of the hearing but did not seek to appear and corresponded with the Fair Work Commission (the Commission) indicating that the Respondent does not object to the granting of an extension of time in this matter.

[3] The application was lodged by the Applicant on 19 August 2016. The effective date of dismissal is not clear on the evidence which has been submitted. I note that there is a dispute as to whether, indeed, there is a dismissal within the meaning of the Act at all and I make no finding as to whether or not there is a dismissal. However, for the purposes of determining the extension of time application, it is necessary to accept the contention of the Applicant that he was in fact dismissed.

[4] The question is what is the date of effect of the dismissal? This is important to understand in order to determine the time period in which the application should have been made.

[5] There is in evidence the witness statement of Ngu Phan. Attached to that statement is an employment separation certificate 1 which provides that the date the Applicant’s employment ceased was 1 July 2016. However, also attached to the Applicant’s statement is the purported letter of resignation dated 4 July 2016.2

[6] The Applicant’s evidence is that on 1 July 2016 he went to a new site to discover what the new job required. He then had an interaction with various bosses, some of whom he had not met. There was then alleged conversations set out at paragraph 7 of the Applicant’s statement and on 4 July 2016 the Applicant says that his manager, Lenny, asked him to come to the office at Napier Street and he was given what he now knows was the notice of termination, that had been filled out by hand. The Applicant’s evidence is that it is at that point that he understood that his employment had been terminated. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 3

[7] The state of the evidence, in my view, is that if there is a dismissal, the termination of employment can have only taken effect on 4 July 2016 because that was the date upon which it became known to the Applicant that his employment was terminated.

[8] That being the case, the application should have been lodged by 25 July 2016 and it has therefore been lodged 25 days outside of the statutory time period. I note that on this point I do not agree with the submissions of the Applicant as to when the date of effect of dismissal is, as the facts as presented do not support the proposition advanced by the Applicant as to when the dismissal took effect.

[9] Evidence was provided by the Applicant and Mr Ben Lyons, Mr Matthew Coggin and Mr Pedro De Matos from United Voice (the union). The evidence clearly establishes the following: that the Applicant having certainly formed the view that he was dismissed on 4 July 2016, well within the relevant time period of 21 days, attended the United Voice office (his union) on 11 July 2016 and instructed them to lodge an unfair dismissal application on his behalf. When he attended the union offices he dealt with Mr Coggin.

[10] Mr Coggin has given evidence that is consistent with that of the Applicant, that the Applicant did, indeed, attend the union offices and instruct him to make an unfair dismissal application. Mr Coggin created a file for the Applicant and attached copies of the documents to the file. The Applicant came back later in the day and gave him a copy of the letter that he said he was asked to sign, which purports to be the resignation letter which he attached to the file. Mr Coggin’s evidence is that he then assigned the file to the Industrial Officer, Mr Lyons and did not have any further responsibility for the Applicant’s file.

[11] Mr Lyons gave evidence and confirmed that the file was assigned to him, however, that he did not take any action on the file until 19 August 2016. On 20 July 2016, nine days after the Applicant first attended the union office; the Applicant’s evidence is to the effect that he became concerned that he had not heard anything about his application, so he attended the union offices again to make enquiries regarding his application. When he visited the office on 20 July 2016 he met with Mr De Matos and Mr De Matos has given corroborating evidence that, indeed, the Applicant did attend the union offices on 20 July 2016.

[12] Mr De Matos’ evidence is that he created a file note in the union’s electronic system and that he advised the Applicant that he would let Mr Lyons, the Industrial Officer with responsibility for his file, know of his concerns. Mr De Matos confirmed that he did not recall if he personally spoke to Mr Lyons but he was of the view that the electronic system should have notified Mr Lyons of the file note/further visit by the Applicant. Mr Lyons, when asked about that system, indicated that he has no recollection of being reminded, despite his failure to log the Applicant’s application on his Outlook calendar; he does not recall getting any further prompting of the Applicant’s further visit on 20 July 2016.

[13] In attending the office on 20 July 2016 technically for the third time, given he had returned with the notice, the Applicant certainly attended the office of the union on three separate occasions all of which were within the 21 day period for filing an application with the Commission.

[14] Section 394(3) of the Act sets out the power of the Commission to allow a further period for an application to be made under section 394(1) if the Commission is satisfied that there are exceptional circumstances. In determining exceptional circumstances we are required to take into account the various factors in section 394 (3) which are as follows:

(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.

[15] In relation to the reason for the delay the Applicant submits that the reason for the delay is “wholly the fault of the applicant’s representative”. I have dealt with above the evidence as to the circumstances surrounding why the union failed to lodge the application on time. My finding on that is that the failure to do so reflects very badly on the organisation, United Voice. My other finding is that the Applicant is blameless in the failure for the application to be lodged within the statutory time period.

[16] In determining this matter one has to consider the correct interpretation of what is meant by “exceptional circumstances”. The leading authority on that point is Nulty v Blue Star Group Pty Ltd 4 and I will apply that authority to my consideration of “exceptional circumstances”.

[17] It is also appropriate to consider, given the submissions by the Applicant’s representative that the reason for the delay is squarely put as a representative error. The authorities on that, at least two of which the Applicant took me to are Clark v Ringwood Private Hospital (Clark) 5; Davidson v Aboriginal and Islander Child Care Agency and McConnell v A & PM Fornataro t/as Tony’s Plumbing Service.6

[18] Relevantly, what Clark indicates is that late lodgement of an application due or representative error may be grounds for an extension of time, however, there is a distinction between the delay caused by the representative where the employee is blameless and other circumstances where there may have been representative error but in fact the employee has contributed to the delay.

[19] It is also clear on the authorities that representative error includes inactivity or a failure to act promptly on the part of the representative. To extend on that point and to be clear, the actions of the employee are the central consideration in deciding whether or not the explanation of representative error is acceptable. For example, in that context if an application was delayed simply because the employee left it in the hands of their representative and simply taken no action to follow up their claim then an application might still be refused.

[20] However, where an employee has given clear instructions to lodge an application and the representative has failed to do so then an extension may be granted. Of course, representative error is only one of a number of factors that we must consider and it is not the only factor: all the factors have to be considered properly under section 394(3)(a) to (f) of the Act. It is not simply one of determining whether there is representative error before the discretion is exercised to grant an extension of time.

[21] The Applicant’s submissions set out the circumstances surrounding the delay and the reasons for the delay, which have dealt with above. I have given consideration in particular to the actions of the employee which are a central consideration. It is evident that the Applicant took quite quick action to attend on the union office within seven days of him becoming aware of the dismissal on 11 July 2016 and then to follow up, when he did not receive contact from the union on 20 July 2016, only nine days later. If the union had have acted either on 11 or 20 July 2016 they would have still filed the application within the 21 day time period.

[22] There is then a further period from 20 July until 19 August 2016 when the union eventually lodged the application, and as it would turn out on the evidence of Mr Lyons, by some chance having stumbled across this application. I have considered the actions of the Applicant in not attending further at the union office in that intervening period of 20 July to 19 August. While that is a significant period of time, I am satisfied that the Applicant in attending the union office on two occasions and having been assured by two different union officers that his application would be lodged as he instructed he was entitled to assume that the application would be lodged.

[23] I am satisfied that the Applicant is blameless in the delay; the blame is entirely in the hands of the union. The Applicant has done all that he could have reasonably expected to do to effect an application being made within the relevant time period. The Applicant’s representative has failed to act upon the repeated instruction of the Applicant and I hold the Applicant blameless for their inactivity and disorganisation.

[24] For those reasons I am satisfied that there is an acceptable reason for the delay.

[25] As to whether the person first became aware of the dismissal after it had taken effect, I note that there is a dispute which I am not resolving on the facts about whether there is a dismissal at all. If there is a dismissal, as is asserted by the Applicant, then I am of the view that, at least on the uncontested evidence, he was only made aware of the dismissal on 4 July 2016 and, based on the authority I cannot see that the dismissal could have taken effect prior to the Applicant becoming aware of it. That is, the fact that he was made aware of the dismissal on 4 July 2016 is a neutral consideration because that is the time from which one would calculate the number of days before the application needed to be lodged.

[26] As to whether any action taken by the person to dispute the dismissal, the evidence from the Applicant is that on 7 July 2016 he went to the office of the Respondent and asked the Payroll Officer Mr James Wang, for an Employment Separation Certificate and asked about redundancy and was told then that there was none because he had chosen to resign. 7 I would not characterise this exchange as disputing the dismissal, however, I note that on 10 July 2016, the Applicant again visited the office of the Respondent. The Applicant’s submissions assert that the Applicant met with his former manager and protested that he had not wished to resign on 10 July 2016; however, I am unable to see where the Applicant has given evidence to that effect.

[27] Overall, I am not satisfied that there was any particular action taken to dispute the dismissal and I consider that to be a neutral consideration.

[28] In terms of prejudice to the employer, the Applicant submits there is no prejudice to the employer, other than the usual prejudice to the company by any grant of an extension of time. It is well established on the authorities that generally the employer must produce evidence to demonstrate that there is some prejudice in this matter and there is no such evidence. The Respondent’s position is that it doesn’t object to the extension of time. That is a neutral consideration.

[29] In terms of the merits of the matter, there is clearly a dispute on the facts. The first point being that there is a dispute as to whether there was a dismissal at all, but certainly there is an arguable case for the Applicant that there was a dismissal. If the Applicant is successful on that point, as to the broader merits of the matter, as Vice President Lawler said in Johnson v Joy Manufacturing Co Pty Ltd “the authorities make it clear that it is not appropriate to embark on a fact-finding exercise in relation to the merits of the dismissal for the purposes of determining an extension of time”. 8

[30] Overall, considering the material in the matter, I find that the application is not without merit and I treat this as a neutral factor in determining whether exceptional circumstances exist.

[31] As to the fairness as between this person and persons in a similar position, I consider it is consistent with fairness as set out by Senior Deputy President Richards in Wilson v Woolworths. 9 The consideration of this factor may relate to fairness in matters of a similar kind that are either currently before the Commission or have been decided in the past.

[32] There have been a number of matters decided in the past where representative error has been held to be a relevant factor, again depending on the circumstances of that representative error, and it would be consistent with maintaining fairness between this Applicant and other persons in a similar position to have regard to that.

[33] In conclusion, having regard to all of the criteria to which I am to have regard, I am satisfied in particular that the reason for the delay was entirely a representative error on behalf of United Voice.

[34] I am satisfied the Applicant was blameless in that regard and that that is an acceptable reason for the delay.

[35] I am not satisfied the Applicant took any action to directly dispute the dismissal with his employer but he certainly took action to dispute the dismissal by way of instructing the union to lodge an application for unfair dismissal remedy on his behalf.

[36] I am not satisfied there is any prejudice to the employer arising from the delay.

[37] As indicated above, the merits are a neutral consideration.

[38] I am satisfied that it would be consistent with the criterion of section 394(3)(f) that the Applicant was treated consistently to the extent that this matter deals with representative error and other cases that deal with representative error.

[39] Taking all of those considerations into account, I have determined that I am satisfied there are exceptional circumstances such that I am satisfied that a further period for the lodging the application should be allowed, as sought by the Applicant.

[40] I conclude by urging United Voice to take action as alluded to by Mr Lyons to ensure that the organisation does not repeat such an error.

[41] An order giving effect to this decision has previously been published in PR587256.

COMMISSIONER

Appearances:

B Lyons on behalf of the Applicant.

Hearing details:

2016.

Melbourne:

4 November.

Final written submissions:

28 October 2016.

 1   Exhibit A1, Witness Statement of Mr Ngu Phan, annexure NP3

 2   Exhibit A1, Witness Statement of Mr Ngu Phan, annexure NP2

 3   Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496

 4   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1

 5   Clark v Ringwood Private Hospital (1997) 74 IR 413

 6   Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 [35].

 7   Exhibit A1, Witness Statement of Mr Ngu Phan [10]

 8   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[2010] FWA 1394 [20]

 9   Markos Wilson v Woolworths[2010] FWA 2480

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