Pedro Vannea v Royal Bay International Pty Ltd

[2014] FWC 4270

[2014] FWC 4270

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pedro Vannea
v
Royal Bay International Pty Ltd
(U2014/6909)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 JUNE 2014

Application for relief from unfair dismissal - extension of time granted.

[1] On 25 June 2014 I advised the parties to this matter that an extension of time for this application would be granted. These reasons reflect the background and reasons for that decision.

[2] On 30 April 2014 the National Union of Workers (NUW) lodged an application on behalf of Mr Vannea pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which Mr Vannea sought relief in relation to the termination of his employment with Royal Bay International Pty Ltd (the Respondent).

[3] In that application, Mr Vannea advised that his dismissal took effect on 28 December 2013. The application advised that the Fair Work Commission (FWC) should take into account, the following information in considering late lodgement.

• The Applicant was never made aware who his employer was nor was he given any information about the identity of his employer.



• He originally believed he was employed by Baiada Poultry Pty Ltd t/a Adelaide Poultry.



• Upon the Applicant’s termination of employment an application for unfair dismissal remedy was made to the Fair Work Commission with Baiada Poultry Pty Ltd within the 21 day time limit.



• Sometime after this application was made, Baiada Pty Ltd advised the Applicant that he may have been employed by Royal Bay International Pty Ltd.



• Prior to being advised of the likely identity of his employer by Baiada Poultry Pty Ltd, the Applicant had no way of ascertaining who he was employed by and who he should make an unfair dismissal application against. As such, it was impossible for the Applicant to make an application within 21 days of the dismissal taking effect. 1

[4] The application was referred to me for consideration. On 19 May 2014 my Associate provided written advice of the application to the respondent and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 13 June 2014. Mr Vannea was required to provide a witness statement and a copy of any document relied upon, by 6 June 2014.

[5] No information was received from either Mr Vannea or the Respondent and the respondent did not respond to my Associate’s attempt to make telephone contact. At the telephone conference on 13 June 2014 Mr Vannea was represented by Mr Snowball of the NUW. The Respondent did not participate in this conference. Whilst an interpreter was arranged, that interpreter withdrew shortly after the commencement of the conference but Mr Vannea indicated that he was prepared to proceed with the conference. Mr Snowball advised that he was unaware of the requirement to provide material to the FWC by 6 June 2014. This conference was recorded. At the conference I advised that the application would be relisted for a further telephone conference on 25 June 2014. I advised that I required the specified material from Mr Vannea to be provided by 20 June 2014.

[6] Further information was received from the NUW on behalf of Mr Vannea on 23 June 2014 and additional information, shortly before the conference. The Respondent did not provide any further information and again did not respond to my Associate’s attempts to make telephone contact.

[7] Again, the telephone conference on 25 June 2014 was recorded. Mr Snowball again appeared for Mr Vannea and an interpreter was present. The Respondent did not participate in this conference.

[8] I have considered the extension of time issue on the material before me.

[9] Mr Vannea’s position was that he began working at the Adelaide Poultry site in 2008 and that he understood that Adelaide Poultry was owned by Baiada Poultry Pty Ltd. From 2010, Mr Vannea worked under his supervisor who he knew as Chenda. He assumed the supervisor was an Adelaide Poultry supervisor. Mr Vannea advised that he was notified of his shifts by text messages. Whilst he was never told who his employer was, he assumed he was employed by Adelaide Poultry, attended an induction that was run by Adelaide Poultry and was provided with a uniform by Adelaide Poultry. Mr Vannea was advised, on 28 December 2013 that he was no longer needed for work at Adelaide Poultry. He understood that this was a consequence of his absenteeism. Mr Vannea advised that, after the termination of his employment, he instructed the NUW to make an application, pursuant to s.394 of the FW Act against Adelaide Poultry on the basis that he understood that company to be his employer. That application was made on 17 January 2014. On 13 March 2014 his application was the subject of a conciliation conference at which Adelaide Poultry advised that it was not his employer and that it believed that he was employed by BE Poultry Pty Ltd.

[10] On 2 April 2014 the N UW was advised by the lawyers representing Adelaide Poultry that Mr Vannea was employed by Royal Bay International Pty Ltd. The NUW subsequently contacted Mr Vannea who provided revised instructions in terms of the action he wished to take. The initial application against Adelaide Poultry was subsequently withdrawn and this application was lodged on 30 April 2014.

[11] Mr Snowball advised that, on 25 June 2014, the Respondent had forwarded to him a letter which was purportedly from Chenda Bin. This letter has been provided to me. It states:

“To whom it may concern,

This letter states the reasons of Pedro Venear’s work suspension from Baiada Poultry Ltd. for poor work performance.

Pedro Venear started on 5.11.12 and was originally placed on night shift. In the 10.6.2013 he was moved to day shift after too many complaints from the night shift supervisor, Hean Chou, about his frequent lateness and in some shifts sleeping on premises even when he was required to work. It was agreed by Hean and I that he be moved to day shift where other supervisors and I may keep an eye on him.

From June 2013 Pedro’s work punctuality and reliability started to decrease. It is required that employees come to work 10 minutes early, or if they are ill and unable to work that they must give at least 2-3 hours’ notice in advanced so I can organise a replacement. Pedro did not follow these requirements and it seemed he was taking advantage of my lenience as I only replied ‘Ok’. Excuses such as: not setting the alarm, having a headache and being late due to personal errands were becoming unacceptable. When he arrived at work I always discussed with him that it was unsatisfactory to arrive late and that he needed to organize his time better and be more punctual.

Aside from arriving to work late, Pedro did not practice safe food handling. His actions saw him throwing pieces of chicken fat at other employees which he was warned to do not so. I recall Pedro leaving the work premises numerous times for breaks for two to three hours at a time in which case I always had to call him to come back to work. During my time working with Pedro he was always asking to leave work early due to personal problems or feeling ill. This was also a reoccurring issue which confirmed him to be more unreliable and unfit to work. His actions showed me that Pedro seemed to have a very disinterested attitude towards work and his profession.

All through November 2013 despite repeated warnings from myself Pedro’s work performance and punctuality did not improve. I concluded that he was an unreliable employee and that his work performance did not meet the company’s standards at the time. As a consequence of his poor work performance on 28th December 2013, it was my decision to stop giving him shifts until further notice. I did not in any way terminate or dismiss his employment with Baiada Poultry Ltd.

Regards,

Chenda Bin.”

[12] Having considered that letter I remain somewhat uncertain about who actually employed Mr Vannea.

[13] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[14] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[15] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 102 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Vannea’s circumstances can be regarded as exceptional for the purposes of this subsection.

[16] The information provided to me establishes an adequate explanation of why the application could not have been lodged within time. Mr Vannea had a reasonable belief that Adelaide Poultry was his employer and he acted, within time to pursue an application against that business. A substantial element of the delay related to the time prior to the conciliation conference. I am satisfied that Mr Vannea took timely action to respond to the information given to him by the NUW about the Respondent as his employer and that any further delays associated with the lodgement of this application should not be attributed to Mr Vannea.

[17] On the information provided to me, I am satisfied that Mr Vannea was made aware of the termination of employment decision on 28 December 2013 which I have taken as the date that termination of employment took effect.

[18] Again, from the information provided to me it is clear that Mr Vannea challenged the termination of his employment through his earlier application.

[19] While there is nothing to indicate that granting of an extension of time would prejudice the respondent in this matter, I do not consider that this represents a basis upon which to extend that time.

[20] In terms of the merits of the application, the absence of any information from the Respondent makes an assessment inherently difficult. In these circumstances I consider that the merits of the application should be regarded as a neutral factor in considering an extension of time.

[21] Considerations of fairness relative to persons in similar circumstances to Mr Vannea support an extension of time.

Conclusion

[22] For the reasons I have set out above, Mr Vannea’s circumstances support an extension of time. Those circumstances are to be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is granted and, accordingly, the application will be referred for conciliation. Given the time that has now elapsed since the termination of Mr Vannea’s employment, I have requested that this conciliation be expedited. In the event that the Respondent does not participate in this conciliation process, the matter will be referred back to me for determination on the merits. An Order (PR552488) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

A Snowball of the NUW representing the applicant.

Hearing (Conference) Details:

2014.

Adelaide:

June 13 and 25.

 1   Form F2, para 1.4

Printed by authority of the Commonwealth Government Printer

<Price code C, PR552487>