Prakash Renganathan v The Trustee for Refelec Qld Trust
[2024] FWC 716
•29 APRIL 2024
| [2024] FWC 716 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Prakash Renganathan
v
The Trustee for Refelec Qld Trust
(C2024/666)
| DEPUTY PRESIDENT DEAN | CANBERRA, 29 APRIL 2024 |
Application to deal with contraventions involving dismissal – date employment ended – extension of time.
Mr Prakash Renganathan (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 to deal with a general protections dispute involving his alleged dismissal by The Trustee for Refelec Qld Trust (Respondent).
The Respondent objected to the application, arguing that it was made outside the 21-day period prescribed by the Act and that the Applicant was not dismissed.
Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
A hearing was held to determine whether the application was lodged within the required time, and if not, whether an extension of time should be granted. I note it is unnecessary in this decision to determine the basis on which the employment ended.
At the hearing, the Applicant appeared on his own behalf, assisted by an interpreter provided by the Commission. Ms Katie Head appeared for the Respondent.
Background
The Applicant is from India. He was employed in Australia with the Respondent for three months as a Refrigeration Mechanic, and his employment was subject to the conditions of his temporary work visa and a written employment contract.
His temporary work visa expired on 24 December 2023, being the conclusion of the three-month employment period allowed under the terms of the visa.
The Respondent commenced its Christmas shutdown on 22 December 2023, and re-opened on 9 January 2024.
In December 2023, given the upcoming Christmas shutdown and with the Applicant’s visa about to expire, the Respondent was advised by its migration agent that the Applicant could obtain a visitor/bridging visa that would enable him to stay in Australia for 35 days to cover the shutdown period and provide time for the Respondent to assess the Applicant’s ongoing suitability for the role and whether it would provide sponsorship for a further work visa. The visitor/bridging visa was granted on 24 December 2023.
On 9 January 2024 a conversation took place between the Applicant and Mr Renwick of the Respondent. The Applicant says he was told by Mr Renwick there was not enough work for him and his employment would cease, but he was not given a date his employment would end. Mr Renwick says that he informed the Applicant he was not prepared to sponsor a further visa application nor extend his employment, so his employment was terminated immediately. Mr Renwick denies he told the Applicant the decision was due to lack of work. Rather, he says the reasons given were that the Applicant had not completed his English assessment which was an essential requirement of his visa, and that his skill level did not align with what the Applicant had told him during his interview.
The Applicant subsequently departed Australia on 15 January 2024 and returned to India.
When did the employment end?
The parties are in dispute as to the date on which the Applicant’s employment ended. It is necessary to determine when the employment ended so as to determine whether the application was made within or outside the 21 day time period
The Applicant says that his dismissal took effect on 15 January 2024 which was the date he departed Australia. He also relies on this date because he said the Respondent should have provided him with one week’s notice from 9 to 15 January, and he did not consider 9 January to be the termination date because he was not given written notice of termination on that day.
The Respondent contends the Applicant was employed under a fixed term contract for a period of three months, being the maximum period allowed by his temporary work visa. This visa expired on 24 December 2023, and the Applicant obtained a visitor/bridging visa allowing him to stay in Australia for an additional 35 days.
The Respondent contended the Applicant was told in unambiguous terms on 9 January 2024 that his employment was terminated immediately. The Applicant’s date of travel was based on his request to remain in Australia “for a couple of days to sort things out”, and because the flights between Thursday and Sunday of that week would have required the Applicant to be travelling for up to 36 hours due to the substantial layovers between flights. The flight on 15 January was the shortest possible duration so this was the Applicant’s preferred flight.
Having considered the evidence, I am satisfied and find that the Applicant’s employment ended on 9 January 2024.
There is no dispute the Applicant was advised on 9 January that his employment was ending, and there is no doubt that he could not continue to work absent the appropriate visa.
On this day he returned the Respondent’s property in his possession, and he sent an email from his private email account to the Respondent which included references to his final payment and expressing gratitude for the work experience he had.
To the extent there is inconsistencies between what was said in the meeting on 9 January between Mr Renwick and the Applicant, I prefer the evidence of Mr Renwick. The Applicant’s evidence changed in response to questions he was asked, and he repeatedly said everything the Respondent said were lies, when clearly this was not the case. It took multiple questions to have him acknowledge that the email he sent on 9 January was from him, having continued to say that all of the Respondent’s evidence was a lie.
As a result, I am satisfied that 9 January 2024 was the date the Applicant’s employment ended.
Extension of time
Given my finding above, the application, lodged on 4 February 2024, has been made five days outside the 21-day timeframe allowed by the Act.
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act provides:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[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.”
The onus of establishing exceptional circumstances lies with the Applicant.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]
The Applicant’s reasons for the delay included that he had limited access to internet at his home in India, he had no knowledge of Australian employment laws, and was deeply depressed by the actions of the Respondent. It took him some time to recover and seek help to make this application.
On the evidence before me, I am not satisfied that the Applicant has provided satisfactory explanation for failing to file this application within the statutory time period. None of the matters raised by the Applicant are out of the ordinary course, unusual or special. Ignorance of the law is not exceptional. There was no medical evidence produced to suggest that depression prevented him from making his application within the required time period.
The absence of an acceptable explanation weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
There is no evidence to suggest the Applicant took any action to dispute the cessation of his employment. On the contrary, his email of 9 January thanked the Respondent and said he was grateful for the experience and had learned a lot from the Respondent.
This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I am not satisfied that the evidence shows any prejudice to the employer if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[4]
The essence of the Applicants’ case seems to be that the Respondent should have continued to employ him, that the manner in which it dismissed him was unfair, and that the Respondent should not have deducted monies allegedly owing to it from his final pay.
The Respondent contends that it was entitled to withhold monies owing to it by the Applicant, that it was within its rights not to continue his employment or sponsor him for another working visa, and did not unfairly dismiss him.
The application reads more as an unfair dismissal or underpayment claim rather than a general protections matter, but in any case, a determination of the merits will turn on facts which are contested. On the evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[5] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[6]
Neither party made any submissions about this criterion and so I consider this to be a neutral consideration.
Conclusion
I can only extend time for this application to proceed if the Applicant is able to satisfy me that the circumstances are exceptional.
Having considered all the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The matters raised by the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
An order giving effect to this decision is issued separately.
DEPUTY PRESIDENT
Appearances:
P Renganathan on his own behalf.
K Head for The Trustee for Refelec Qld Trust.
Hearing details:
2024.
By telephone:
March 20.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[5] [2015] FWC 8885.
[6] Ibid at [29].
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