Nikola Taras v IFM Services Pty Ltd T/A Sodexo

[2019] FWC 4974

[2019] FWC 4974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nikola Taras
v
IFM Services Pty Ltd T/A Sodexo
(U2019/1091)

DEPUTY PRESIDENT BEAUMONT PERTH, 1 AUGUST 2019

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – application dismissed.

[1] Mr Taras applied for an unfair dismissal remedy having resigned from IFM Services Pty Ltd T/A Sodexo (Sodexo) on 6 December 2019. Sodexo objected to the application on the basis that Mr Taras was not dismissed, and the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the objection that the application was made outside of the 21-day period.

[2] Mr Taras had worked for Sodexo since May 2016. On 23 November 2017, he commenced in the position of a Tavern Manger. On 7 November 2018, he saw an advertisement for a position as a service attendant in the Oil and Gas Division of Sodexo (the new position). Mr Taras applied for the new position and, in doing so, acknowledges that on 22 November 2018, he resigned from his old position, effective 6 December 2018. Mr Taras, however, submitted that his Manager informed him he was required to resign from his old position to take up the new position. Mr Taras said that due to issues with Sodexo’s recruitment process he was not appointed to the new position, and it was not until 29 January 2019, that he secured some temporary work with Sodexo. He claims he was unfairly dismissed, and that there are exceptional circumstances concerning the late filing of his application.

[3] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[4] It is not contested that Mr Taras’ application was made out of time. However, in order for Mr Taras’ unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. 1

[5] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.

[6] Mr Taras advanced several reasons why I should find that there were exceptional circumstances. In short, however, I am unpersuaded that such circumstances are exceptional, and I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed. My reasons follow.

BACKGROUND

[7] Mr Taras gave evidence that having applied for the new position, he received an email from Ms Kwok in recruitment, asking whether he had informed his Manager that he had made the application. 2 He said that he went that same day and saw Ms Wooding, his Manager, who purportedly congratulated him on the new position and told Mr Taras that she had spoken to Mr Dinh, Talent Acquisition Consultant in recruitment, and he was required to resign from his old position.3 Mr Taras did so.4 Ms Wooding was not called to give evidence by either party.

[8] On 5 December 2018, Mr Taras said that he received a text message from Jobfit to confirm his availability for a medical, which he attended on 10 December 2018. 5

[9] Mr Taras understood that mobilisation for the new position would take place either on 18 December 2018, or 20 December 2018. By 17 December 2018, he had not heard anything from Sodexo regarding the position and so he sent an email to Mr Dinh enquiring about the medical and his employment. 6

[10] Having received no response to his email, Mr Taras called Mr Dinh on 20 December 2018, and Mr Dinh confirmed he would follow the matter up. 7 Mr Taras called Mr Dinh the next day, having not heard back from him.8 Mr Dinh explained to Mr Taras that the doctor who had conducted the medical assessment was away and he would have to wait for the results.9 Mr Taras thereafter obtained the contact details for Jobfit from Mr Dinh, contacted jobfit himself, and arranged for the medical results to be sent to Sodexo.

[11] In his conversation with Mr Dinh on 21 December 2018, Mr Taras said Mr Dinh explained that the scheduler involved with the Prelude (where Mr Taras thought he would be assigned) was away until 7 January 2019, but that he would meet with Mr Taras on 2 January 2019.

[12] A meeting took place between Mr Dinh and Mr Taras on 2 January 2019. Mr Taras says that Mr Dinh informed him his contract was delayed because his previous Manager should have asked for a variation to his contract, not a resignation. 10 Mr Taras said he asked Mr Dinh if he could have a temporary position as he was running out of money.11

[13] On 7 January 2019, Mr Taras sent Mr Dinh an email as he had not heard back from him. 12 The following day Mr Dinh requested further documentation from Mr Taras.13 Mr Taras said he sent an email to Mr Dinh on 11 January 2019 asking for a meeting with someone in the company who could explain why he was still unemployed.14

[14] On 14 January 2019, Mr Taras sent an email to several recipients in the Sodexo business, including Mr Dinh. It was a rather lengthy email. Relevantly, toward the end of the email Mr Taras stated:

Now I beg someone from Human Resources in Sodexo to read this text again and try to put himself/herself in my situation and give me an answer what would you do if you are in my shoes???

I’ve had a secure job, now I am unemployed, and last few weeks I’m borrowing money to pay my rent and bills and to feed my family.

Nothing else I can consider my case as unfair dismissal and you can be sure that I will seek for a legal advise.

This is not threat but I have to protect myself …

[15] A meeting was held on 15 January 2019 with Mr Taras, Mr Dinh and Mr Padman an ER/IR Advisor of Sodexo. 15 Mr Padman is said to have informed Mr Taras that he could not take the position in the Oil and Gas Division.16 Mr Taras said that he asked for his old position back but was informed that had been filled.17 Mr Padman informed Mr Taras there were some options he could consider, and Mr Taras took up one of those options - to work in a temporary position while waiting for a position on the Prelude.18

[16] Mr Taras said that he did not receive an employment contract until 29 January 2019 and on that date, he signed and returned it. At the time of preparing his witness statement he worked as a causal taking temporary work. 19 He said that the terms of his appointment meant he could be sent offshore, which meant he could be paid at a lesser rate than the position he understood he was appointed to, on the Prelude.20

[17] On 30 January 2019, Mr Taras called Workclaims Australia. By 4 February 2019 he had instructed Workclaims Australia to lodge an unfair dismissal application.

[18] With regard to the delay in filing his application, Mr Taras’ evidence was that essentially he did not believe he would have recourse to unfair dismissal laws until after he had been given the new position, and until he was finally signed up for a completely different role on 29 January 2019.

SUBMISSIONS OF MR TARAS

[19] According to Mr Taras’ representative, the circumstances were unusual because Mr Taras believed he had secured the new position, and had been consistently engaged with staff of Sodexo throughout the period of the delay while he endeavoured to secure his new position.

[20] While Mr Taras challenged his dismissal by the email dated 14 January 2019, Mr Taras’ representative continued that it would have been adverse to Mr Taras’ economic survival to have turned on Sodexo with an application in the Commission in circumstances where Sodexo staff were working to remedy Mr Taras’ predicament.

[21] Mr Taras conceded that his resignation was given freely, but it was given after his Manager directed him to do so. He submitted that the direction to resign was at the heart of the exceptional circumstances of this case.

SUBMISSIONS OF SODEXO

[22] Sodexo submitted that there was nothing exceptional about applying for a position and participating in a recruitment process right up until a formal offer of employment had been offered and accepted. And, that there was nothing exceptional about Mr Taras’ circumstances that would prevent or inhibit him from filing an unfair dismissal application within the 21-day statutory period.

[23] Between 6 December 2018 and Mr Taras’ email dated 14 January 2019, Mr Taras had not complained to Sodexo that he believed his dismissal was unfair, sought advice on his separation from Sodexo, or filed an unfair dismissal application. Sodexo contended that during this period Mr Taras was not suffering from a debilitating illness or injury, nor was he impaired in any way that would have prevented him from seeking advice or filing an unfair dismissal application in time.

[24] Notwithstanding Mr Taras’ email dated 14 January 2019, and his statement ‘you can be sure that I will seek for legal advise’ (sic), between 14 January 2019 and 30 January 2019, Mr Taras did not seek advice on his separation or file an unfair dismissal application. Again, said Sodexo, Mr Taras was not suffering from illness or injury, nor was he impaired in any way that would have prevented him from seeking advice or filing an unfair dismissal application.

[25] With regard to Mr Taras’ assertion that he did not make his unfair dismissal application within the statutory timeframe because he did not believe he would have recourse to the unfair dismissal laws, Sodexo observed there was nothing extraordinary about Mr Taras not being aware about the relevant legislation and action available to him to challenge his termination. Further, there was nothing extraordinary about his lack of action to obtain legal advice.

[26] Mr Taras’ election to resign his permanent full-time employment to pursue a contingent and casual position was, according to Sodexo, regular or routine, or normally encountered when converting permanent employment to contingent and casual employment. Sodexo advanced that this could not be deemed as out of the ordinary course, or unusual, or special, or an uncommon occurrence. The mere fact that Mr Taras prematurely elected to resign his permanent employment did not make this extraordinary, or, said Sodexo, a matter that may be termed an unfair dismissal.

EXTENSION OF THE 21-DAY PERIOD

[27] Consideration turns to whether to extend the 21-day period within which Mr Taras’ unfair dismissal application was to be brought. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 21

[28] In decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time. 22 Whilst it considered the general protection provisions of the Act, the reasoning in Nulty is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[29] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 23 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 can be considered exceptional.24

[30] In the recent decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters the Full Bench provided clarification regarding the assessment of exceptional circumstances. 25 While the Full Bench considered s 366(1), the observation remains relevant here:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all 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. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 26

[31] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

The reason for the delay

[32] Consideration is given to whether Mr Taras has provided a credible reason for the whole of the period that his application was delayed. 27 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.28 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, however, are 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.29

[33] In Pottenger v Department of Caffiene T/A Two Feet First, 30 the Deputy President observed that 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,31 or a reasonable explanation.32 It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable or for that matter credible explanation.33

[34] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 34 Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight.35

[35] Mr Taras’ resignation was effective as of 6 December 2019. To comply with the statutory frame in s 394(2), his application for unfair dismissal was due to be filed on 27 December 2018.

[36] Mr Taras asserted that from 6 December 2018 until 27 December 2018, he had been consistently engaged with staff of Sodexo while he endeavoured to secure his position. This continued after 27 December 2018, up until he signed his employment contract on 29 January 2019.

[37] While I am sympathetic to Mr Taras’ circumstances, I am not persuaded that his difficulties were out of the ordinary course, unusual, special, or uncommon. While Mr Taras purports that he was advised to resign, ultimately that was a choice that sat with him. Mr Taras chose to resign from his permanent position in circumstances where he had not been provided with an offer of employment and he had not accepted such an offer through signing an employment contract. At the time he resigned, the recruitment process appeared to have not been initiated. For example, Mr Taras had not undertaken a medical assessment prior to resigning.

[38] Mr Taras gave evidence that when he assumed his position as a Tavern Manager/ Leading Hand in November 2017, he did not receive his employment contract from Sodexo until the following April 2018. However, there was no evidence before me to show that Mr Taras had resigned from his position to take on that role. The circumstances appear unfamiliar to those faced in December 2018, where he was taking up a casual position in a different Division, and where a medical assessment and other ‘tickets’ were required.

[39] Sodexo submitted that between 6 December 2018 and Mr Taras’ email dated 14 January 2019, Mr Taras had not complained to Sodexo that he believed his dismissal was unfair, sought legal advice on his separation from Sodexo or filed an unfair dismissal application. Mr Taras’ representative explained that Mr Taras’ inaction regarding a complaint arose from him not wanting to compromise the relationship with Sodexo when Mr Dinh was attempting to secure him work.

[40] However, by email dated 14 January 2019, Mr Taras clearly placed Sodexo on notice that he considered his case to be an unfair dismissal and that Sodexo could be sure that he would seek legal advice. It did not seem, at this point, that Mr Taras had concern about jeopardising his chances of securing employment. And yet, it was not until 4 February 2019 that Mr Taras made his application for an unfair dismissal remedy, and it was not until 30 January 2019 that he sought advice on his case. When questioned why he had not sought advice or made an application, Mr Taras confirmed that he was not working during the period, that it was correct that he was free to seek legal advice, and that there were no constraints on him doing so. When asked if he had plenty of opportunity to seek legal advice he answered in the affirmative.

[41] Between 14 January 2019 and 4 February 2019, the evidence did not show that Mr Taras was suffering from illness or injury, or was impaired in any way that would have prevented him from seeking advice or filing an unfair dismissal application.

[42] I accept that until 14 January 2019, Mr Taras took no action to make an application or seek advice on the same because of concerns of jeopardising his future employment with Sodexo. However, after sending his email dated 14 January 2019, I no longer find this reason for the delay in making the application plausible. Mr Taras has not persuaded me that there is an adequate explanation for the whole period of the delay which extended to the time of making of the application. Further, it cannot be said that it was the case that Mr Taras was unaware of his legal rights concerning unfair dismissal having referred to the term in his email dated 14 January 2019. There was no evidence before me to attribute the delay to representative error.

[43] This factor weighs against granting Mr Taras an extension of time.

Whether he became aware of the dismissal after it took effect

[44] Mr Taras conceded that he gave notice of his resignation on 22 November 2018, it was given freely and took effect on 6 December 2018. Although, he qualified that it was given after a direction from his Manager to do so.

[45] At all material times from 22 November 2019 until the date the unfair dismissal application was made, Mr Taras knew that he had resigned from his employment.

Action take to dispute the dismissal

[46] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 36 Sodexo submitted that Mr Taras took no action to dispute his termination during the statutory timeframe. However, I accept that by his email dated 14 January 2019, Mr Taras was disputing his termination of employment albeit he had resigned, and Sodexo was placed on notice about this.

[47] I consider that up until 14 January 2019 there was a plausible reason why Mr Taras had not taken action to dispute his dismissal. However, by placing Sodexo on notice, as Mr Taras did regarding his intent to obtain legal advice because he considered his case an unfair dismissal, weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer

[48] I cannot identify any particular prejudice that Sodexo would accrue if an extension of time were to be granted. In its submissions Sodexo acknowledged that there was no foreseeable prejudice to it. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[49] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[50] In Kornicki v Telstra-Network Technology Group, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). 37 In that case the Full Bench 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. 38

[51] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application. 39

[52] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. Mr Taras contends that he was instructed to resign, and that the termination of his employment was not at his initiative. However, I am unable to assess the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

Fairness between the person and other persons in a similar position

[53] The Deputy President in Morphett v Pearcedale Egg Farm, 40 considered this criterion and said:

cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 41

[54] My attention has not been drawn to other persons in a position similar to that of Mr Taras. I am satisfied that the issue of fairness as between the him and other persons in a similar position is not a relevant consideration in this matter, and is therefore a neutral factor in
determining whether to grant an extension of time.

Conclusion

[55] Having considered the matters referred to in paragraphs [32] – [54] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Taras’ application to be made. Mr Taras’ circumstances were not out of the ordinary course, unusual, special or uncommon and he has not provided a reasonable explanation for the whole of the delay. While one of the criteria weighs in favour of a finding of exceptional circumstances, the totality of the evidence is insufficient to ground such a finding. Further, where exceptional circumstances are found, consideration turns to whether it is fair and equitable that time should be extended. I have not concluded that it is fair and equitable that an extension should be granted. This, however, does not mean that I lack understanding regarding Mr Taras’ frustration concerning the circumstances he found himself in over the Christmas period.

DEPUTY PRESIDENT

Appearances:

P Mullaly for the Applicant

S Edwards for the Respondent

Hearing details:

By phone, 18 July 2019

Printed by authority of the Commonwealth Government Printer

<PR710412>

 1   Fair Work Act 2009 (Cth) s 394(3)

 2   Witness Statement of Mr Taras (Taras Statement) [8].

 3 Ibid [11].

 4 Ibid [12].

 5   Ibid [13] – [14].

 6 Ibid [15].

 7 Ibid [17].

 8 Ibid [19].

 9 Ibid [20].

 10 Ibid [21].

 11 Ibid [22].

 12 Ibid [23].

 13   Ibid.

 14 Ibid [24].

 15 Ibid [26].

 16   Ibid.

 17   Ibid.

 18 Ibid [27].

 19 Ibid [29].

 20   Ibid.

 21   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 22   [2011] FWAFB 975 [15].

 23 Ibid [13].

 24   Ibid.

 25   [2018] FWFB 901.

 26   Ibid.

 27   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 28   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 [10].

 29   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].

 30   [2018] FWC 3403.

 31   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9].

 32   Roberts v Greystanes Disability Services; Community Living [2018] FWC [16].

 33   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWFB 901.

 34 Ibid [39].

 35   Ibid.

 36   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 37   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay.

 38   Ibid.

 39   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 40   [2015] FWC 8885.

 41 Ibid [29].