Nsama Musonda v Keldan Commercials Pty Ltd

[2020] FWC 6021

[2020] FWC 6021

The attached document replaces the document previously issued with the above code on 10 November 2020.

Inserted missing introductory paragraphs and renumbered accordingly.

Associate to Deputy President Saunders

Dated 10 November 2020

[2020] FWC 6021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nsama Musonda
v
Keldan Commercials Pty Ltd
(U2020/13839)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 10 NOVEMBER 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This decision concerns an application by Mr Nsama Musonda (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The termination of the Applicant’s employment with Kelan Commercial Pty Ltd (Respondent) took effect on 21 September 2020. The unfair dismissal application was lodged on 19 October 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). The period of 21 days ended at midnight on 12 October 2020. The application was therefore filed seven days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). On 3 November 2020 I held a hearing, by telephone, in relation to the Applicant’s application for an extension of time. Mr Musonda gave evidence in support of his case and Mr Daniel Kelly, owner and director of the Respondent, gave evidence on behalf of the Respondent. On the day following the hearing, 4 November 2020, the Respondent filed its form F3 – employer response and a related document. I have not had regard to the material filed by the Respondent on 4 November 2020.

[4] 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

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] 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.

[7] 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.

Reasons for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[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. 5

[10] The Applicant says the main reason for delay is because he pleaded with the Respondent to reconsider the termination of his employment, but the Respondent did not respond and to make matters worse the Respondent paid the Applicant $0 on his termination, causing the Applicant to struggle to make ends meet. The Applicant also says that he was waiting for the Respondent to reconsider the termination of his employment because he is on a particular visa (subclass 482) which does not permit him to work for another employer unless the visa is transferred to another sponsor.

[11] The plea by the Applicant to the Respondent following the termination of his employment on 21 September 2020 was in the form of a letter from the Applicant’s immigration lawyer to the Respondent dated 22 September 2020. In that letter, the Applicant’s immigration lawyer raised a number of issues on the Applicant’s behalf and asked the Respondent to reconsider the Applicant’s dismissal.

[12] The Respondent did not respond to the letter from the Applicant’s immigration lawyer because it did not raise any issues which had not already been raised by the Applicant. The Respondent did not hear from the Applicant again until it received his unfair dismissal application. The Respondent says that it made deductions from the Applicant’s payment in lieu of notice in accordance with the Applicant’s contract of employment.

[13] I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the extensive delay. The letter from the Applicant’s immigration lawyer to the Respondent was sent the day after his dismissal. The Respondent did not make any response to the Applicant or his immigration lawyer. It should have been reasonably apparent to the Applicant within a week or so after the letter was sent on 22 September 2020 that the Respondent was not going to respond to the letter or agree to re-employ him. The Applicant had plenty of time from that point until the end of the 21 day period following his dismissal to complete and lodge his unfair dismissal application.

[14] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[15] The Applicant’s dismissal took effect on 21 September 2020. He was aware of his dismissal at that time. The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[16] I consider the Applicant took action to dispute his dismissal by instructing his immigration lawyer to write a letter to the Respondent on 22 September 2020. This factor weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[17] I cannot identify any prejudice that would accrue to the Respondent 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. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[19] The Respondent says the Applicant was dismissed because of his refusal to attend his rostered shift on 19 September 2020 and his conduct on 18 September 2020 in the Respondent’s administration office. As to his conduct on 18 September 2020, the Respondent contends that the Applicant admitted he had been “a bit loud” when talking to an administration officer and said he was sorry for his actions. As to the rostered shift on 19 September 2020, the Applicant says that he did not refuse to attend the shift, but refused to go to site in his own vehicle and instead wanted to use a company vehicle. The Applicant’s concern in this regard arose out of his experience in driving to a mine site a few months ago and hitting a kangaroo on his way to site, thereby damaging his car. The Respondent informed the Applicant that he was not entitled to be provided with a company car due to the nature of the work being performed and he had his own suitable transport to attend site. The Respondent considered that the Applicant was given multiple opportunities to change his mind, but he did not do so. The Respondent also says that the Applicant did not provide any suitable reason or justification to be provided with a company vehicle in accordance with the Respondent’s usual practice. The Applicant was given an opportunity to show cause why his employment should not be terminated. The Respondent says that the Applicant apologised for his actions and admitted that his “refusal to go to site was not good at all”. The Respondent concluded that there had been an irrevocable breakdown in the trust and confidence required to maintain a successful employment relationship.

[20] In the letter from the Applicant’s immigration lawyer dated 22 September 2020, it was explained that the Applicant had some difficulty in understanding contracts written in English and he had misunderstood his contract to mean that the Respondent would supply him with certain property including a vehicle. Because of this misunderstanding, the Applicant had thought that he was supposed to be issued with a vehicle and a vehicle was being unfairly withheld from him. This upset the Applicant, which the immigration lawyer contended was understandable “against a background of previous damage to his own vehicle travelling to the workplace and previous racial slights he has suffered”. The Applicant also contended that Mr Kelly lied in the meeting with him on 21 September 2020 and Mr Kelly had made the decision to dismiss him before hearing his response to the show cause request.

[21] I consider that the Applicant has an arguable case that his dismissal was harsh in view of the mitigating circumstances and contrition on his part. In all the circumstances, I consider the merits of the Applicant’s claim to weigh in favour of his application for an extension of time.

Fairness as between the person and other persons in a similar position

[22] 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.

[23] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[24] 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 that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me 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:

Mr Musonda on behalf of himself

Mr Kelly on behalf of the Respondent

Hearing details:

2020.

Newcastle (by telephone)

3 November.

Printed by authority of the Commonwealth Government Printer

<PR724417>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

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

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]