Nicholas Kalikas v Transformer Services Pty Ltd
[2023] FWC 1315
•5 JUNE 2023
| [2023] FWC 1315 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Kalikas
v
Transformer Services Pty Ltd
(U2023/4035)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 5 JUNE 2023 |
Application for an unfair dismissal remedy – extension of time – failure to provide Employment Separation Certificate – forthcoming criminal trial – stress from personal circumstances – no exceptional circumstances – application dismissed
On 10 May 2023 Nicholas Kalikas (Mr Kalikas or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to a dismissal by Transformer Services Pty Ltd t/as Transformer Services[1] (Transformer Services, the respondent or the employer) which his application alleges took effect on 18 April 2023.
Transformer Services filed a response on 20 May 2023.
The application was made more than the twenty-one days after the dismissal took effect as required by the FW Act. There is a dispute over the day dismissal took effect. The application is either one day out of time or seven days out of time. I deal with the date dismissal took effect below.
Mr Kalikas seeks an extension of time.
The employer opposes the extension. It separately submits that it was a small business employer and in any event complied with the Small Business Fair Dismissal Code.
This decision deals solely with the out of time issue.
I issued directions on 29 May 2023.
Materials were filed by Mr Kalikas and Transformer Services.
I conducted a hearing by video on 1 June 2023.
Mr Kalikas gave evidence[2] as did Mr Johns, Managing Director.[3] Both parties made submissions.
Following the hearing I reserved my decision.
Facts
I make the following findings.
Transformer Services operates in the civil construction industry. It claims to be a small business for the purposes of the FW Act. It operates from Wingfield in suburban Adelaide.
Mr Kalikas was employed on 1 December 2021 as a casual general skilled worker. He was at that time on parole awaiting trial in the District Court of South Australia. He was employed in circumstances where the employer sought to assist him to rebuild his life.
Prior to Easter 2023, on 6 April 2023 Mr Kalikas sought permission to work on two days cleaning the yard during the four day easter break as he did not want to lose four days’ pay. The employer agreed on the basis that he work two days at ordinary time rates.
Mr Kalikas worked on 8 and 10 April 2023 (Easter Saturday and Easter Monday).
Mr Kalikas submitted a time sheet and sought to be paid at public holiday rates.
On 12 April 2023 Mr Kalikas was at work. Mr Johns spoke to him first by telephone and then in person about the time sheet he had submitted. During the second discussion Mr Johns told Mr Kalikas that he was dismissed for cause.
Mr Kalikas left the workplace.
The dismissal was only communicated verbally. No written notice was given.
Mr Kalikas was paid up to and including 12 April 2023. He did not work after 12 April 2023 nor was he paid in lieu of notice. The final payment made to Mr Kalikas was a payment for that single day (12 April). That payment was made on 20 April 2023 as part of the employer’s regular payroll run for the week 12 April to 18 April.[4]
Upon dismissal, Mr Kalikas was not provided an Employment Separation Certificate by the employer. This prevented Mr Kalikas from claiming unemployment benefits in the weeks that followed. In the first week of May 2023 Mr Kalikas requested an Employment Separation Certificate from the employer. As at the time of hearing, this had not been provided.
When requesting the Employment Separation Certificate Mr Kalikas did not specifically raise with the employer his views about the dismissal.
In the weeks following dismissal Mr Kalikas spoke to his general practitioner about his stress and anxiety.
On 9 May 2023 Mr Kalikas spoke to his parole officer about his still forthcoming trial which he says is listed before the District Court at the end of June 2023. He says he told his parole officer the circumstances surrounding his dismissal. He says the parole officer suggested that he do something about it.
The next day, 10 May 2023, Mr Kalikas went online and decided to make an unfair dismissal claim. He completed the application and sent it to the Commission electronically that afternoon. In his application Mr Kalikas says that he was unfairly dismissed for seeking to be paid public holiday rates for working on public holidays.
In his application, Mr Kalikas stated that his dismissal was both notified and took effect on 18 April 2023.
Transformer Services was not aware of the unfair dismissal claim until notified by the Commission after the application had been made. On 20 May 2023 the employer filed a response. The employer said that Mr Kalikas was dismissed for a pattern of submitting incorrect time sheets in circumstances where he had an earlier warning for unauthorised use of a company car. In its response the employer also stated that the dismissal was both notified and took effect on 18 April 2023.
Submissions
Mr Kalikas
Although his application says that he was notified of dismissal on 18 April 2023 and that it took effect that day, Mr Kalikas on reflection said in his evidence that he was in fact notified on 12 April 2023 and that it took effect that day. He says that he nominated 18 April in his application as this was the last day of the pay week before his final payment.
He says that he is sorry that his application was filed late and submits that time should be extended for three reasons:
he did not receive an Employment Separation Certificate;
he was suffering stress and anxiety caused by the dismissal, his parenting responsibilities and his upcoming criminal trial; and
he did not know of the 21-day rule until he read the online application form on 10 May.
Transformer Services
Transformer Services submit that the dismissal was notified on 12 April 2023 and that it took effect that day. It says that the employer incorrectly nominated 18 April in its response as this was the last day of the pay week before a final payment was made to Mr Kalikas.
The employer submits that none of the reasons advanced constitute exceptional circumstances individually or collectively.
Consideration
Unfair dismissal applications must be made within twenty-one days of a dismissal taking effect unless time is extended.
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
Being out of time, Mr Kalikas’ application can only proceed if he establishes that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[5]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[6] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[7]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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.”[8]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[9]
Status of the application
I am well satisfied that the application is out of time.
I find that the dismissal took effect on 12 April 2023. That was the date Mr Kalikas was told that he was dismissed and the date that he left the workplace. It was also his last day of work with the employer. As a casual employee, he was paid up to and including work on that day and not beyond.
Whilst final payment was not made until 20 April 2023, the employment relationship had ceased eight days earlier. Nor did dismissal take effect on 18 April at the end of that payroll week. Mr Kalikas was not employed on 18 April meaning that he could not have been dismissed on 18 April. His dismissal took effect on the first day of that payroll week (12 April).
Accordingly, the application is seven days out of time. The delay period is the seven day period 4 to 10 May 2023 (inclusive).
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[10] The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.[11]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[12] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[13]
I now deal with the reasons advanced by Mr Kalikas.
Employment Separation Certificate
Upon dismissal, Mr Kalikas did not receive an Employment Separation Certificate. Although such a certificate includes a declaration by an employer stating the date employment ceased and its reason, there is no evidence that Mr Kalikas was waiting for the certificate or needed it in order to make an unfair dismissal claim. Dismissal had been clearly notified on 12 April.
The failure by Transformer Services to provide an Employment Separation Certificate is not an explanation for the delay let alone a reasonable explanation.
That said, it is a matter of concern that the employer did not provide an Employment Separation Certificate to Mr Kalikas after it was requested. A failures by an employer to provide a dismissed employee an Employment Separation Certificate when requested reflects poorly on the business and may be an offence.[14] From a practical perspective it has the effect of making it difficult if not impossible for a dismissed employee to obtain unemployment benefits. It can add to economic hardship and also incentivise an unfair dismissal claim. Why an employer would allow that to be so is difficult to fathom.
To his credit, after I drew this to Mr Johns’ attention during the hearing, he undertook to provide the Certificate forthwith.
Stress and anxiety
Mr Kalikas stated that he has post-traumatic stress syndrome, takes medication and that he suffered stress and anxiety after being dismissed.
No evidence was led of the condition let alone how the condition impacted, if at all, his capacity to file an unfair dismissal claim within time.
Mr Kalikas submits that his condition was exacerbated by the dismissal, by parenting responsibilities and by his upcoming criminal trial.
It is not unusual for dismissal to cause a heightened level of stress and anxiety. Nor is it unusual that parenting responsibilities, in this instance apparent difficulties that Mr Kalikas has had in getting his son to attend school, create anxiety. None of these point to exceptional circumstances.
That a dismissed employee is facing a criminal trial is unusual. It is understandable that the upcoming trial was and remains a cause of stress and anxiety to Mr Kalikas. However, the impending trial is not a new development it would seem. Mr Kalikas was employed with that potential in play. His evidence was that the issue on which he is being tried has been live for a number of years. Whilst one’s anxiety is likely to heighten as a criminal trial approaches, there is no evidence before me that draws a connection between stress on account of the upcoming trial and a material incapacity on Mr Kalikas’ part to advance his industrial interests by filing an unfair dismissal claim within time.
That Mr Kalikas was experiencing stress and anxiety due to a variety of personal circumstances in the weeks after dismissal and during the delay period does not reasonably explain the delay.
Ignorance of the 21-day rule
Mr Kalikas did not know of the 21-day rule for the filing of unfair dismissal claims until he read the application form on 10 May.
It is well established that ignorance of the time limit is not an acceptable reason for a failure to make an application within time. Further, the evidence is that Mr Kalikas was not motivated to make an unfair dismissal claim until the day prior and only after speaking to his parole officer. By then he was already beyond the time limit.
Considered overall, the explanations for the delay advanced by Mr Kalikas considered both individually and collectively do not weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
I have found that Mr Kalikas was told of his dismissal on 12 April 2023 and knew that it took effect that day.
This a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
Mr Kalikas requested an Employment Separation Certificate in the weeks following dismissal but took no action to dispute the dismissal other than making this application.
The employer was not aware that the dismissal was being disputed until contacted by the Commission.
This is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[15]
However, there is no material prejudice to Transformer Services by having to defend a late claim.
A claim would have to be responded to, involving time and cost. That impact may be disruptive on the respondent. In this matter, that is not something unique or unusual.
This notwithstanding, the absence of prejudice would not of itself be a reason to grant an extension.[16]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would concern whether Transformer Services is in fact a small business (as defined) and, if so, whether the Small Business Fair Dismissal Code was complied with. If the employer is not a small business, general merit considerations would apply.
Whilst the core proposition on merit advanced by Mr Kalikas (that a dismissal for seeking payment at public holiday rates for public holidays worked) has intrinsic merit, that proposition involves three assumptions: that that was in fact the reason for dismissal; that no other valid reason existed; and that Mr Kalikas was not paid what he was lawfully owed for the days he worked over Easter 2023.
As I have not fully heard evidence relating to these matters it is not possible to express a firm view on the merits. However, Mr Kalikas appears to have been paid at ordinary time rates only for the two days he worked over Easter 2023. On the material before me, I have doubt whether Mr Kalikas was in fact paid correctly for those days. I make the general observation that an arrangement to contract out of an obligation to pay public holiday rates that the law may require, no matter how well intentioned, is not recognised at law. Also as a general observation and without concluding whether that occurred in this matter or that no other valid reason existed, dismissal for asserting a right to be paid what is lawfully required would likely be unfair as well as unlawful.
For the purposes of the extension of time issue, this consideration weighs somewhat in favour of an granting an extension.
Fairness between persons in similar position (s 394(f))
It is not submitted that the application for an extension of time gives rise to issues of fairness between Mr Kalikas and other persons in similar positions.
This is not a relevant factor.
Conclusion
The period of delay being seven days is not insignificant in the context of a 21-day time limit.
The explanations for the delay do not weigh in favour of a finding of exceptional circumstances.
The merits weigh somewhat in favour. Other factors are neutral.
Considered overall, I am unable to conclude that the circumstances giving rise to the late filing were exceptional.
Disposition
There being no exceptional circumstances, the time for lodgement cannot be extended.
Before concluding, I repeat a final observation I made during the hearing. An unfair dismissal claim is not the only avenue an employee has to dispute payments it says are owed that relate to a dismissal. Indeed, agencies such as the Fair Work Ombudsman have the capacity to investigate alleged underpayments whether associated with a dismissal or not. Whilst this unfair dismissal application has been dismissed as it is out of time, it is self-evident that the underlying dispute over the correctness of what was paid to Mr Kalikas for work during Easter 2023 remains. I would encourage the parties, and in particular the employer, to obtain independent advice on whether an outstanding sum is owed particularly in light of my general observations above.
I note by way of post-script that on the afternoon of the hearing day, and following this decision being reserved, the employer provided a copy of an Employment Separation Certificate dated 1 June 2023, consistent with its undertaking to do so.
As Mr Kalikas’ application is out of time, it is unable to proceed. The application is dismissed. An order[17] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr N Kalikas, on his own behalf
Mr C Johns of and behalf of Transformers Services Pty Ltd
Hearing details:
2023
Adelaide (by video)
1 June
[1] Respondent name amended by consent, 1 June 2023
[2] A1 Statement 29 May 2023
[3] R1 Statement by email 27 May 2023
[4] R2 Pay Advice Nicholas Kalikas
[5] Smith v Canning Division of General Practice[2009] AIRC 959
[6] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[7] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[8] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[9] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[10] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[12] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[13] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[14] Skurrie v TS Scaffolding Pty Ltd[2022] FWC 2072, [9]
[15] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[17] PR762784
Printed by authority of the Commonwealth Government Printer
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