Peter Kaupe v Synaco Global Recruitment Pty Ltd
[2023] FWC 1392
•14 JUNE 2023
[2023] FWC 1392
The attached document replaces the document previously issued with the above code on 14 June 2023.
Decision has been refiled to correct a typographical error in paragraph [2] and to remove track changes.
Charlotte Smee
Associate to Deputy President Wright
Dated 15 June 2023
| [2023] FWC 1392 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Peter Kaupe
v
Synaco Global Recruitment Pty Ltd
(U2023/3244)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 14 JUNE 2023 |
Application for an unfair dismissal remedy – application filed out of time – circumstances exceptional – extension of time for filing allowed
Introduction and outcome
On 14 April 2023, Mr Peter Kaupe (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Synaco Global Recruitment Pty Ltd (Respondent).
Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
In his application, the Applicant stated that his employment ended on 15 February 2023. He also acknowledged that the application was being made outside of the 21-day period prescribed by s.394(2) of the FW Act. The Respondent confirmed in its F3 Employer Response (the response) that the Applicant’s “assignment” ended on 15 February 2023.
Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1] To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered.
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter in accordance with s.399 of the FW Act.
In summary, I have found that the Applicant’s employment ended on 15 February 2023. The application should have been made on 8 March 2023 to comply with s.394(2)(a) of the FW Act. The application was therefore made 37 days outside of the 21-day limit.
I have found that the circumstances in which the application was made are exceptional, according to the factors in s.394(3) of the FW Act. I consider it fair and equitable that time should be extended, and I therefore grant an extension of time to file the application to 14 April 2023.
Appearances at conference
On 26 May 2023, the Applicant’s legal representative wrote to my Chambers in relation to the issue of permission to appear.
Having considered the submissions of the Applicant and given that no objection was received by the Respondent, I determined that:
·allowing the Applicant to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;
·it would be unfair not to allow the Applicant to be represented because the Applicant was unable to represent himself effectively.
Accordingly, at the determinative conference on 6 June 2023, the Applicant was represented by Ms Eden Sweeney, Associate at Allens, and the Respondent was self-represented.
The Applicant gave evidence on his own behalf.
Submissions
The Applicant filed submissions in the Commission on 17 May 2023 and 26 May 2023.
The Respondent did not file any evidence or submissions but relied upon the contents of their response. The Respondent made verbal submissions at the Commission at the conference on 6 June 2023 which reiterated the following points in the response:
The Respondent is a labour hire provider and as such employs people on a casual, hourly, and as needed basis by the Respondent’s host employers.
All casual employees acknowledge and understand this when signing the Respondent’s Casual Employment Agreement
The Applicant has not been dismissed from employment and is still a registered candidate with the Respondent
Several employees’ assignments ended at the same time as the Applicant’s
The Applicant’s assignment ended only because of a downturn in work at the host client
The Applicant has since been offered work with the Respondent
The Respondent objects to the application being accepted out of time
When did the dismissal take effect?
The application filed on 14 April 2023 indicated that the Applicant’s dismissal took effect on 15 February 2023, and that the Applicant was not making the application within 21 calendar days of his dismissal taking effect.
On 18 May 2023, my Chambers issued Directions and set the matter down for hearing in relation to the issue of extension of time only on 6 June 2023.
On 25 May 2023, the Respondent filed a response to the unfair dismissal application. Section 1.4 of the response states:
What date did the dismissal take effect?
In response to this question, the Respondent stated:
Peter’s assignment ended 15th February 2023.
In Section 2.2 of the F3, the Respondent indicated that it objected to the Application on the grounds that the Application is out of time and that that Applicant was not dismissed. The Respondent provided the following explanation for these objections:
His assignment with the host employer ended due to a downturn of work due to supply chain issues and Synaco has since offered Peter further assignments which is in line with his Casual Employment Agreement which Peter never responded to on several occasions.
At the determinative conference, the Applicant gave evidence that the last day he attended work for the Respondent was 15 February 2023 and that on 21 February 2023 he received a payslip from the Respondent for 7.6 hours worked on 15 February 2023.
It is not in dispute that the Applicant last performed work for the Respondent on 15 February 2023. For the purpose of considering the matter pursuant to subsection 394(2) of the Act, I find that the dismissal took effect on 15 February 2023.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application, but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As I found above, the dismissal took effect on 15 February 2023. The final day of the 21-day period was therefore 8 March 2023 and ended at midnight on that day.
It is not in dispute, and I so find, that the application was made on 14 April 2023.
The application having not been made within 21 days of the date on which the dismissal took effect, I now need to consider whether it was made within such further period as the Commission allows.
Should the Commission allow a further period for the application to be made?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 8 March 2023. The delay is the period commencing immediately after that time until 14 April 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
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.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[6]
The Applicant provided the following evidence:
The Applicant worked for one of the Respondent’s host employers, Monroe Springs (Australia) Pty Limited (Monroe Springs) from on or about 21 February 2022 to 15 February 2023. On 15 February 2023, Ricky, the Production Manager of Monroe Springs advised the Applicant that that Monroe Springs was experiencing "a downfall in the supply chain", that the Applicant was going to be laid off and that the Applicant did not need to come back to the Monroe Springs facility.
The Applicant did not receive any written confirmation that his employment was terminated.
The Applicant called Mr Ronald Hernandez, his manager at the Respondent, on 17 February 2023 to enquire about the status of his employment but Mr Hernandez did not provide a clear answer as to whether the Applicant had been dismissed.
On 21 February 2023 the Applicant received a payslip from the Respondent for 7.6 hours worked on 15 February 2023. On the same day, the Applicant sent a text message to Mr Hernandez following up their conversation on 17 February 2023.
Mr Hernandez did not respond to this message until 27 February 2023, when he told the Applicant to send him another text message. The Applicant sent the following text message to Mr Hernandez on the same day he received Mr Hernandez’s response:
Hi Ron, I’ve just called to check on my work with Monroe Springs, am still waiting after being laid off on the 15/02/2023.
The Applicant did not receive a response to this text message and sent the following text message to Mr Hernandez on 20 March 2023:
Hi Ron, I’ve been ringing you but with no luck since it keeps ringing out with the VM. Can you please update on my work status with Monroe Springs after being laid off due to recession of supply chain on the 15th Feb, 2023. I am still waiting in suspense with no feedback from your end.
This message was not responded to.
Accordingly, it was not entirely clear to the Applicant that his employment had come to an end on 15 February 2023. The Applicant hoped the Respondent would place him in a new role but did not hear anything from the Respondent to this effect before filing his unfair dismissal application.
As the Respondent had not communicated with the Applicant for a period of approximately two months and Mr Hernandez had not responded to the Applicant’s repeated attempts to contact him, the Applicant had no choice but to assume his employment with the Respondent had been terminated.
On 27 April 2023, almost two weeks after filing the Application, the Applicant received an email and text message from Respondent notifying him that there was a position open at Monroe Springs.
Prior to being terminated by Synaco, the Applicant lived at the Cosy Hotel, where he paid $180.00 per week for a room. When the Applicant ceased employment he was unable to afford his accommodation and became homeless.
The Applicant was living rough for the period between 17 February 2023 and 25 April 2023. The Applicant was also experiencing financial hardship during this time, having lost his entire source of income. The Applicant does not receive Centrelink payments.
The Applicant had no access to a laptop or computer during this period. He only had access to his mobile phone, and had limited opportunities to charge his mobile phone. He also has limited technological skills. As such, it was difficult for the Applicant to inquire about his employment situation with the Respondent (beyond reaching out to Mr Hernandez) and about his legal rights, and file an application to the Commission, until he received assistance from Redfern Legal Centre on 14 April 2023.
After multiple failed attempts to contact the Respondent, the Applicant sought legal advice to ascertain his rights.
The Applicant was told by a friend that Wayside Chapel could assist with arranging access to legal services. The Applicant attended Wayside Chapel in or about late March 2023. The Applicant was subsequently put in touch with the Employment Rights Legal Service (ERLS) and contacted the ERLS on 3 April 2023. The ERLS referred the Applicant to Redfern Legal Centre (RLC).
RLC contacted the Applicant on 4 April 2023 and informed him that they had booked him in for a phone call with a RLC lawyer. RLC noted that it may take up to 3 weeks for the Applicant to be contacted by a lawyer.
The Applicant was contacted by RLC on 11 April 2023, when he was informed that a lawyer would call him to provide phone advice on 14 April 2023. The Applicant spoke to a lawyer from RLC on 14 April 2023 and was advised that he could make an unfair dismissal application. The Applicant was also informed that there is a 21 day statutory time limit to make such an application, and that he was outside of this time frame.
After becoming aware of his rights, the Applicant decided to proceed with making an unfair dismissal application. RLC lodged the Application with the Commission as soon as was possible on 14 April 2023. The Applicant produced evidence in the form of emails showing the dates that was in contact with ERLS and RLC.
The Applicant is a migrant worker from Papua New Guinea who has not lived in Australia for very long. The Applicant has a very limited understanding of his legal rights and of employment practices in Australia.
Mr Hernandez was not called to give evidence by the Respondent and the Respondent did not otherwise challenge the evidence provided by the Applicant in relation to his attempts to ascertain his employment status during the period from 15 February to 20 March 2023.
The text messages that the Applicant sent to Mr Hernandez which are in evidence show that the Applicant was uncertain about the status of his employment. It would have been open for Mr Hernandez to advise the Applicant that he is still employed by the Respondent (as now asserted by the Respondent), but he did not do so.
I therefore find that the reason for the delay from 15 February 2023 to 20 March 2023 is due to the Respondent’s failure to confirm the Applicant’s employment status, leading the Applicant to be uncertain about whether he had been dismissed or not.
The Applicant’s evidence in relation to seeking legal advice during the period from approximately the date he sent the final text message to Mr Hernandez to 14 April 2023 when the Application was filed was not contested. It was also supported by email correspondence between the Applicant, ELRS and RLC during the period from 4 April – 14 April 2023. Based on this evidence, I find the reason for the delay from approximately 21 March 2023 to 14 April 2023 was caused by the limited availability of assisting legal centres.
I accept the Applicant’s uncontested evidence that he is not familiar with the Australian legal system and experiences vulnerability as a recent migrant to Australia. I also accept his evidence that he experienced homelessness and financial hardship and during the period between 17 February 2023 and 25 April 2023. I note that recent decisions of the Fair Work Commission have considered homelessness as a factor in favour of granting an extension of time in relation to a general protections application[7] and an unfair dismissal application.[8]
I find that all of the factors which led to the delay in the Applicant filing the application, when combined, give rise to exceptional circumstances that favour an extension of time being granted.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant alleges that he first became aware of the dismissal after it had taken effect.
As noted above, the Applicant’s evidence was that it was unclear to the Applicant that his employment had come to an end on 15 February 2023 because Mr Hernandez had not responded to the Applicant’s repeated attempts to contact him. In addition, the Applicant did not receive written confirmation of termination of employment. The Applicant sent Mr Hernandez a final text message on 20 March 2023, then sought legal advice from the Wayside Chapel soon after that date.
Having regard to the above, I find that the Applicant first became aware of the dismissal on or about 21 March 2023, almost 5 weeks after the dismissal came into effect because the Respondent did not take any steps to respond to the Applicant’s queries about his employment status, and did not otherwise communicate with the Applicant.
I find that in sending the text message to Mr Hernandez on 20 March 2023, the Applicant was still unsure whether he was employed by the Respondent. However, the Applicant’s actions in seeking legal advice from Wayside Chapel in late March 2023 show that by that time, the Applicant had formed the view that his employment had ended.
I find that the Applicant first became aware of the dismissal on or about 21 March 2023, almost 5 weeks after the dismissal came into effect, and this favours an extension of time being granted.
What action was taken by the Applicant to dispute the dismissal?
The Applicant alleges that he took action to dispute the dismissal.
As noted above, the Applicant’s evidence was that he repeatedly contacted the Respondent to determine his employment status. He also tried to seek legal advice during the period from late March 2023 to 14 April 2023 but due to the limited availability of the assisting legal centres, he was not able to secure advice until 14 April 2023.
Having regard to the matters referred to above, I find that the Applicant’s actions in contacting the Respondent during the period from 17 February to 21 March 2023 constituted action to dispute the dismissal. In making these queries, the Applicant referred to being “laid off” and was clearly concerned about not being able to work and earn an income. I also find that the Applicant took action to dispute the dismissal by seeking legal advice during the period from late March 2023 to 14 April 2023.
I find that the Applicant’s actions in disputing the dismissal favours an extension of time being granted.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Applicant submitted that no particular prejudice to the Respondent can be identified. I find that prejudice to the Respondent is a neutral consideration in this matter.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed material.
It is evident from this material that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[9] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant 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. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being:
a. the Applicant’s uncertainty about the dismissal due lack of communication from the Respondent,
b. The Applicant’s unfamiliarity with the Australian legal system and the limited availability of legal advice services, and
c. the Applicant’s experience of homelessness, financial hardship and vulnerability as a migrant
(b) the Applicant becoming aware of the dismissal almost 5 weeks after it took effect
(c) the actions taken by the Applicant to dispute the dismissal, being contacting the Respondent during the period from 17 February to 21 March 2023 and seeking legal advice from late March 2023 to 14 April 2023.
(d) no issue of prejudice to the employer being identified
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[10] 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.[11]
The reasons for the delay, the time that the Applicant became aware of the dismissal and the actions of the Applicant to dispute the dismissal weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(d)-(f) are neutral considerations.
Conclusion
Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.
Having regard to those exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded, the Commission is satisfied that it is appropriate to extend the period for the application to be made to 14 April 2023.
The matter will be shortly listed for Directions. If the Respondent maintains that the Applicant was not dismissed, this will be dealt with by way of further jurisdictional hearing.
DEPUTY PRESIDENT
Appearances:
E Sweeney, for the Applicant
J Alexandrou, Respondent
Hearing details:
2023.
Sydney,
6 June.
[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234 at [15]
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Emma Hames v IWM (PBH) Pty Ltd [2023] FWC 690 (31 March 2023) at [33]
[8]Mr Ananta Kumar Ghising v Nurse Aid Australia[2023] FWC 1016 (4 May 2023)
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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