Paramjit Jhajj v Moorabbin Transit Pty Ltd

[2018] FWC 4712

[2018] FWC 4712

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paramjit Jhajj
v
Moorabbin Transit Pty Ltd
(U2018/7130)

COMMISSIONER PLATT ADELAIDE, 15 AUGUST 2018

Application for an unfair dismissal remedy – extension of time – application dismissed.

[1] Mr Paramjit Jhajj has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Moorabbin Transit Pty Ltd (Moorabbin Transit) which his form F2 Unfair Dismissal application advised took effect on 21 May 2018.

[2] Mr Jhajj filed his unfair dismissal application with the Commission on 10 July 2018.

[3] Mr Jhajj’s application identified that it was made beyond the 21 days from the date of dismissal and provided the following explanation:

“Lack of knowledge of this process and my current circumstances coz (sic) so many things happened to me within last two months and I do not know what to do and where to start and whoever I asked for help no one responded to me also my employer did not respond to any of my query I send them so many emails to check what [is] my employment status finally I send email to payroll department in our head office to send me the payslips and from those payslips I come to know that I [am] terminated and I get this information on 28th of June 2018 this is the day when I actually confirmed that I [am] terminated from my job also I contacted union regarding this matter and [their] response is also very disappointing sort of straightaway no to me for any information or help I [am] seeking from union.”

[4] On 24 July 2018, Moorabbin Transit lodged a Form F3 Employer Response which indicated that the dismissal occurred on 21 May 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.

[5] On 27 July 2018, my Associate corresponded with Mr Jhajj and Moorabbin Transit and advised that the extension of time issue would be considered at a telephone Hearing on 10 August 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Mr Jhajj was directed to provide a statement concerning the extension of time and any documents to be relied upon by 3 August 2018. Moorabbin Transit was invited to file any material in reply by 7 August 2018.

[6] A reminder notice was sent to Mr Jhajj on 3 August 2018.

[7] No submissions were received from the Mr Jhajj.

[8] On 7 August 2018, Moorabbin Transit filed its submissions regarding the extension of time issue. The submission is relevantly summarised as follows:

•  Mr Jhajj contacted his Union in relation to his dismissal and he would have been advised of his rights and obligations.

•  Mr Jhajj has put forth no compelling argument which supports his application for an extension of time.

•  Mr Jhajj had no interest in speaking to Moorabbin Transit after refusing a drug and alcohol test.

•  Mr Jhajj failed to comply with the Commission’s Directions issued on 27 July 2018.

[9] A Hearing was conducted by way of a telephone conference on 10 August 2018. A sound file record of the telephone conference was kept. Mr Jhajj represented him and Mr Wood, Regional Manager, represented Moorabbin Transit.

[10] Mr Jhajj gave evidence at the Hearing which is relevantly summarised as follows as follows:

•  On 9 May 2018 he attended a meeting with Mr George Loucas (Manager) and Ms Kim Caldow (HR Business Partner) concerning his work performance.

•  On 9 May 2018 he was issued with a written warning.

•  On 11 May 2018 Mr Jhajj did not attend for work. The employer wrote to Mr Jhajj and requested his attendance at a meeting on 17 May 2018 to discuss the allegations contained in the letter.

•  Mr Jhajj was unable to attend the meeting on 17 May 2018 due to an illness.

•  On 21 May 2018 Moorabbin Transit wrote to him, the letter included the following “We find your conduct, specifically on Wednesday 9 May 2018, constitutes serious misconduct and, due to the serious nature of the matters, as well as your recent poor behaviour, we have determined to terminate your employment immediately.”

•  Mr Jhajj stated that he was advised he would receive a final payslip.

•  Mr Jhajj contends that he did not receive confirmation that his employment was terminated until 28 June 2018.

•  During the Hearing Mr Jhajj submitted communications exchanged with his employer. One was a copy of an email dated 18 June 2018 to Mr Loucas concerning his employment separation certificate. The opening paragraphs of the email contained the following statement, “As to the last information I got from Ventura by registered letter on 21 May 2018 that my employment is terminated immediately. That’s fine with me no worries I have no guilty that I am not working there anymore (sic).” The email then discusses the impact of the dismissal on Mr Jhajj’s financial position and how he needs a separation certificate to obtain Centrelink benefits. The email then complains about the treatment Mr Jhajj received from the HR department and how he believed he was treated unfairly.

[11] Mr Jhajj also submitted three payslips:

•  The first was dated 15 May 2018 and detailed that Mr Jhajj was on leave without pay for the period 7 May to 11 May 2018 and provided details of a gross payment of $375.93.

•  The second was dated 5 June 2018 and identified that Mr Jhajj was absent on 28 May to 1 June 2018 and was not paid any amount for that period.

•  The last payslip was dated 26 June 2018 and appears to record the payment of Mr Jhajj’s leave accruals with a gross payment of $18,956.12. It contains a reference to the termination date being 21 May 2018. It appears that this is the document which Mr Jhajj relies upon to assert that his termination was not finally confirmed until 28 June 2018.

[12] Moorabbin Transit submitted that the employment ceased on 21 May 2018 and that Mr Jhajj was aware of the termination when he received his dismissal letter.

Applicable Law

[13] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

Consideration

[15] Mr Jhajj was self-represented throughout the proceeding and I accept that he may not have understood the effect of the Directions issued on 27 July 2018. I have not held Mr Jhajj’s failure to make written submissions against him in reaching my decision.

[16] The first issue in this matter is when Mr Jhajj’s employment was terminated and when he became aware of it.

[17] The termination letter dated 21 May 2018 was unequivocal and clearly stated that the employment ceased immediately. Mr Jhajj’s email of 18 June 2018 confirms his receipt and his understanding that his employment ceased on 21 May 2018.

[18] I find that the Mr Jhajj was dismissed on 21 May 2018.

[19] This unfair dismissal application filed by Mr Jhajj was made 29 days outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.

[20] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[21] Mr Jhajj contends that he was seeking further information from his employer (which appears to relate to a separation certificate and payslips) and that his dismissal was not confirmed until 28 June 2018. This position ignores his email of 18 June 2018 which contains an acknowledgement of his dismissal. No other reason was given to explain the considerable delay. The seeking of a separation certificate and correspondence in relation to entitlements are not of themselves an exceptional circumstance.

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

[22] Mr Jhajj first became aware of the dismissal when he received the letter dated 21 May 2018 which was sent by registered post. I expect Mr Jhajj may not have received this for a week. There is no doubt that Mr Jhajj had received the dismissal letter by 18 June 2018. Even if this was taken to be the date that Mr Jhajj first became aware of the dismissal, his application was not filed for a further 22 days.

Any action taken by the person to dispute the dismissal

[23] No action, other than the filing of this application, was taken to dispute the dismissal. The communication of 18 June 2018 appears to be focussed on the provision of a separation certificate and the impact of the dismissal upon Mr Jhajj.

Prejudice to the employer (including prejudice caused by the delay)

[24] There was no submission that the employer suffered prejudice and as a result this is a neutral factor.

The merits of the application

[25] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

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

[26] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[27] At the conclusion of the Hearing I advised Mr Jhajj that his application for an extension of time would not be granted, that his unfair dismissal application would be dismissed and that I would publish my detailed reasons. He subsequently emailed my Chambers and made a written submission seeking a reconsideration of my decision. I am unable to accede to that request.

[28] The information provided was largely contained in Mr Jhajj’s email of 18 June 2018 and his evidence before me. The financial impact of the dismissal upon an Applicant, and his inability to secure representation are not relevant factors under s.394(3) of the Act.

[29] For the reasons I have set out above, I am not satisfied that Mr Jhajj’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order² reflecting this decision will be issued.

COMMISSIONER

Appearances:

P Jhajj the Applicant.

D Wood on behalf of the Respondent.

Hearing details:

2018.

Adelaide

10 August.

Printed by authority of the Commonwealth Government Printer

<PR609855>

1 [2011] FWAFB 975.

2 PR609856.