Nyankiir Mawith v Startek Australia Pty Ltd
[2023] FWC 2931
•16 NOVEMBER 2023
| [2023] FWC 2931 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nyankiir Mawith
v
Startek Australia Pty Ltd
(U2023/8965)
| COMMISSIONER YILMAZ | MELBOURNE, 16 NOVEMBER 2023 |
Application for an unfair dismissal remedy – Representative error - Extension of Time – granted
Ms Nyankiir Mawith filed an unfair dismissal application on 19 September 2023 under s.394 of the Fair Work Act 2009 (the Act). Employed as a casual employee in the position of customer contact officer in student services for Victoria University, Ms Mawith was dismissed by her employer Startek Australia Pty Ltd (Startek) on 28 August 2023. This decision deals with an application for an extension of time as the application was made outside the 21-day statutory time limit under the Act.
Ms Mawith commenced employment with Startek as a part-time customer contact officer on 16 January 2023 and converted to a casual employee arrangement on 28 July 2023. Startek submit that in June 2023 the legal entity employing Ms Mawith changed from Startek Employment Services Pty Ltd to Startek Australia Pty Ltd. Ms Mawith gave evidence that she elected to convert to casual employment to benefit from the loaded casual rate and because the arrangement suited her study commitments.
There was confusion over the dismissal date when the application was made by Ms Mawith’s representative; initially assuming the dismissal occurred on 25 August 2023, it was thought the application was four days late. However, following the case management hearing the dismissal was confirmed to have taken place on 28 August 2023, therefore the application is one day late.
Ms Mawith was granted leave to be represented by Just Relations. For the Applicant there were three witnesses:
Ms Mawith, who gave evidence herself,
Mr Garry Dircks, her representative and
Mr Jeffrey Zee, partner/boyfriend.
Startek was self-represented. No witnesses appeared for the Respondent.
The submissions
Section 394(2)(a) and (b) 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 date of dismissal is not contested between the parties. Consequently, this application was made 1 day late.
The Application was prepared by Mr Garry Dircks of Just Relations following an email inquiry by Ms Mawith on 8 September 2023, a telephone discussion of the same day and after Ms Mawith forwarded to Just Relations on Friday 15 September 2023 at 6:49pm further particulars about the dismissal including work location, details concerning the employer and an explanation why Ms Mawith thinks the dismissal was unfair.[1] Ms Mawith submits that despite the late application, exceptional circumstances apply to grant an extension of time; firstly the error on the part of her Representative and secondly her confusion over the dismissal date and delay due to her mental state in sending through the particulars to her Representative which was required to complete the application. Ms Mawith’s partner/boyfriend was not cross examined and his sworn witness statement attests to the impact of the dismissal on Ms Mawith.
Startek object to the extension of time application and submit that there were no exceptional circumstances justifying an extension of time, including the failure of an experienced Representative to file the application late.
The Act allows for an extension of time by the Commission if it is satisfied that there are exceptional circumstances. 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.[2] 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.[3]
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; 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.
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 each of these matters in the context of the Application.
Reason for the Delay
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.[4] The delay occurs from the end of the 21-day deadline and the date which the application is made. In this case the delay is a period of 1 day.
Ms Mawith gave evidence that she was absent from work due to ill health when she was contacted by Startek at 10:49am to attend a Teams meeting at 3.30pm that same day.[5] She says that despite being unwell she accepted the meeting invitation titled OM Catch up session. A copy of the meeting invite was tendered into evidence which clearly identifies 28 August 2023. I am satisfied that the meeting occurred on 28 August and it is not contested that it was at that meeting that her employment was terminated.
Upon receiving the request to meet Mr Mawith gave evidence that she inquired about its purpose. However, her requests for further information on the purpose of the meeting went unanswered. When she attended the meeting, she was informed that due to the “low volume of calls” she was no longer required.[6] Following the Teams meeting she says that she experienced severe depression, anxiety and embarrassment that affected her ability to manage daily tasks.
Ms Mawith contacted Just Relations by email on 8 September 2023 and in that communication, she indicated that her employment ceased some 14 days prior. At the time of the inquiry, it was still within the 21-day statutory time frame to file an application. On the same day, Mr Dircks contacted Ms Mawith and discussed matters of representation and it was left for Ms Mawith to forward better particulars to enable an application to be made.
Both Mr Dircks and Ms Mawith confirmed in oral evidence that on 8 September 2023, the statutory time frame was discussed, indicating an awareness of the due date for filing the application. Even though Ms Mawith could not recall the detail of the timeframe she says that she understood she was required to forward her better particulars to Just Relations by Friday 15 September 2023. It is noted that it was assumed by Ms Marwith that she was dismissed on 25 August 2023.
Mr Dircks gave evidence that on 8 September 2023, he did not have the required detail to file an application and in support he tendered in evidence a copy of the email inquiry received from Ms Mawith on 8 September 2023. He further gave evidence that on Friday 15 September 2023 upon finishing work for the day, and not having received the materials from Ms Mawith, he went away for the weekend and did not check emails until 19 September 2023. It was at that point he had noted Ms Mawith’s email that was sent by her on the Friday after business hours at 6.49pm. This email material, except for the attachments, was also tendered in evidence.
During cross examination of Mr Dircks, his evidence was that until he received the additional information, he did not have clear instructions to file an application. He noted there was no letter of termination and the payslips did not contain the date of dismissal. He says he made the application promptly and on the advice that the dismissal took effect on 25 August 2023, thereby calculating that the application was 4 days late.
Ms Mawith gave evidence of her medical condition which affected her ability to respond promptly which was the reason for sending through her materials to Just Relations one week after the initial contact. Her boyfriend, who was not cross examined, provided a sworn statement attesting to his knowledge of the effect of the dismissal on Ms Mawith. Despite the delay by Ms Mawith to forward her materials, on Friday 15 September 2023 the 21-day time frame had not yet passed.
When considering whether exceptional circumstances exist where the reason for delay is an error by the Applicant’s representative, it is relevant to consider whether the Applicant caused or contributed to the representative’s error, whether by act or omission.[7]
Mr Dircks gave evidence that in normal circumstances when a client determines to proceed with Just Relations, the additional information is sent through within days, unlike in this case where it took Ms Mawith a week to send in her materials. He contends that the delay on her part is attributable to her medical condition which he describes as “complex neurological and psychological issues of some substance.”[8] Ms Mawith’s medical evidence consists of her statement that her psychologist advises that she should avoid stressful situations having encountered prior pseudoseizures.[9] In addition she had filed in evidence medical reports dated 24 October 2022, 8 November 2022, 17 November 2022, 5 and 6 January 2023 and 30 January 2023. The more recent report summarises the purpose of the various reports and makes findings. All of the reports relate to an episode on 19 July 2022 where Ms Mawith was dizzy and unresponsive. The various reports do not describe any abnormality although the latest report does refer to her previous mental health stresses, anxieties and traumas. Treatment recommended includes cognitive behavioural therapy and pharmacological treatment, ‘however, the cornerstone of the treatment remains non-pharmacological treatment.’[10] During the proceedings Ms Mawith gave evidence that she did not continue treatment and importantly at the time of her dismissal or soon after she did not obtain any medical advice despite her feeling depressed and anxious. She suggested that because of her history she was in such a state that she could not adequately cope and this was the reason for her delay in sending her materials to Just Relations.
However, Applicants commonly express feelings of anxiousness, depression or other such conditions on being dismissed. It is understood that a dismissal will have a distressing effect on an Applicant. Where this occurs it is expected that something more is required to find exceptional circumstances. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. The principle in Becke v Edenvale Manor is often cited in such circumstances:
“Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.”[11]
While Ms Mawith tendered in evidence medical reports, none of these reports identify a medical condition to explain the cause in her delay in sending her materials to her representative. More to the point there is no contemporary evidence at the time it is alleged she was in no state to function. Despite the reliance on a medical condition, when Ms Mawith did send her materials it was still within the 21-day time limit even though it was sent after business hours. Both Ms Mawith and Mr Dircks gave evidence that no actual time frame was agreed between them to receive the material. Mr Dircks gave evidence that at times prospective clients that make an inquiry do not result in becoming actual clients unless the additional materials are received. He gave evidence of examples where inquiries do not progress for whatever reason. On Friday 15 September 2023, when Mr Dircks finished work and prepared for his weekend away he had no reason to expect the material from Ms Mawith.
The fact that Ms Mawith sent her materials to Just Relations, Mr Dircks admits that he was then given instructions to file. On noticing the email on Tuesday 19 September 2023, Mr Dircks promptly acted to file the application.
Where an Applicant has given clear and timely instructions to their representative to file their application, the Applicant is generally entitled to rely on the representative to carry out those instructions.[12] Ms Mawith’s email was a clear instruction, it could have been timelier based on Mr Dircks’ prior experience, but it was still within the statutory time frame. Ms Mawith gave evidence that she did not contact Mr Dircks following her email, she simply expected that he would file the application. In this case the one-day delay is entirely the fault of the representative. Had Mr Dircks tended to his emails on the day before most possibly the application would have been on time. Mr Dircks gave evidence that he could not recall the reasons he did not check emails on the Monday but on Tuesday he did and tended to them promptly.
I am satisfied that the delay is due to representative error, Ms Mawith is blameless and having regard to the circumstances and consistent with principles regarding representative error,[13] this consideration weighs in favour of an extension. Having considered the reason for the delay I am mindful that the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[14]
Whether the person first became aware of the dismissal after it had taken effect
Ms Mawith was dismissed in a Teams meeting on 28 August 2023. Despite the confusion on 8 September 2023, over the date of dismissal, Ms Mawith was informed of the timeframe required to file her application. The confusion over the date of dismissal had no effect on the delay therefore this consideration is neutral in this matter.
Action taken to dispute the dismissal
There was no action by Ms Mawith to challenge her dismissal other than making an inquiry with Just Relations within a reasonable period and ultimately making this application. This was not a contested matter between the parties, other than Startek asserting that it had no reason to suspect a challenge given the communication from Ms Mawith regarding references to obtain new employment. Where there is a delay and the Applicant disputes the dismissal, it has the effect of putting the Respondent on notice. In this matter the delay of one day is not significant and notice of a possible dispute is not consequential. For these reasons this consideration is neutral.
Prejudice to the employer
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. Neither party contends there is any prejudice or disadvantage to be considered by the late application.
A lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[15] Therefore this is a neutral consideration in the extension of time.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The parties did not address this issue in any great detail other than Ms Mawith contending that the dismissal was unfair because she was contacted while absent because of ill health, the notice of meeting contained no detail and there was no prior warning or discussion of a decision to make her position redundant. The reason was that the volume of calls no longer justified her role. I do observe, and it was not contested that Ms Mawith was initially employed part-time commencing in January 2023 and her dismissal was one month after her conversion to casual employment. There was no evidence of the circumstances regarding the change other than Ms Mawith’s evidence a higher hourly rate was beneficial and the hours suited her studies. Mr Dircks submitted that the reasons for dismissal were in contest and raised the lack of a fair process required under the Modern Award covering Ms Mawith’s employment.
Given the reason presented by Startek, that the client had a reduction in work and it consequently took steps to reduce the equivalent of 12 full time employees, it does note that the selection of Ms Mawith was due to her being a casual employee and her performance placed her in the bottom quartile for the contact centre.[16] Startek further state that Ms Mawith was not denied a support person, although it did not contest that there was no explanation given for the Teams meeting. This raises the question whether an opportunity even arose for Ms Mawith to request to have a support person.
Issues pertaining to valid reason and procedural fairness are clearly in contest, and while I need not test merit in these proceedings, it is reasonable to assess that there may be an arguable case to answer. In these circumstances this consideration weighs in favour of an extension.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter; therefore, I consider this to be a neutral consideration.
Conclusion
Having considered the evidence, I am satisfied of exceptional circumstances to justify an extension of time. I am required to take into account my findings in relation to the considerations in s.394(3). While most consideration I consider neutral, both the reason for delay and merit weigh in favour of an extension of time. On this assessment these two considerations weigh in favour of exceptional circumstances for an extension. On this basis I grant the extension by one day.
Accordingly, the application for an unfair dismissal will be relisted for conference and programming.
An order[17] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr G. Dircks for the Applicant.
Mr M Scott for the Respondent.
Hearing details:
Thursday 9 November 2023
Microsoft Teams
[1] Applicant’s Form F2, question 1.6.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Exhibit A2 Witness statement of Ms Nyankiir Mawith, paras 5-7.
[6] Ibid, para 9.
[7] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [30].
[8] Applicant’s Outline of Submissions, [10].
[9] Exhibit A2 Witness statement of Ms Nyankiir Mawith, para 15.
[10] Medical report of 30 January 2023 by Dr Arash Kahrom, MD, FRACP.
[11] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[12] See, eg, Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759. See also Donohoe v QuickComms Australia Pty Ltd[2020] FWCFB 5426.
[13] Including Robinson v Interstate Transport Pty Ltd [2011] FWAFB (Watson SDP, Drake SDP, Harrison C 17 May 2011), 211 IR 347.
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[15] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
[16] Respondent’s Outline of Submissions, subparas 4.2 – 4.8.
[17] PR768113.
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