Rajnik Matta v The Trustee for Security Manpower Services Trust
[2012] FWA 4664
•7 JUNE 2012
[2012] FWA 4664 |
|
DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Rajnik Matta
v
The Trustee for Security Manpower Services Trust
(U2012/5127)
DEPUTY PRESIDENT SAMS | SYDNEY, 7 JUNE 2012 |
Unfair dismissal - dispute as to date of dismissal - ‘exceptional circumstances’ - no properly adduced or tested evidence - failure to establish reason for delay in filing the application - merits of the case - unnecessary to consider whether applicant resigned or was dismissed - extension of time not granted - application dismissed.
BACKGROUND
[1] On 17 February 2012, Mr Rajnik (‘Jimmy’) Matta (the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), seeking an unfair dismissal remedy following his dismissal by the Trustee for Security Manpower Services Trust (the ‘respondent’) in December 2011. The applicant was employed as a concierge at 227 Victoria Street, Darlinghurst and had worked for the respondent since 21 October 2009. There is a dispute about whether the date of dismissal was the 8th or 19th of December 2011, or some later date. I shall return to this issue shortly.
[2] Both the applicant and the respondent record (F2 and F3) 8 December 2011 as the date of dismissal. If the date of dismissal was 8 December 2011, the application for an unfair dismissal remedy was filed well outside the statutory 14 day time period, set out in s 394(2) of the Act. However, in submissions and during the course of the proceedings, the applicant challenged the actual date of his dismissal and even suggested it was some other later date than 19 December 2011. In this respect, it would seem that the applicant was under the wrong impression that he had 60 days within which to file his claim - not 14 days. If 19 December 2011 was the date of dismissal, the application still falls foul of the 14 day time limitation, and ultimately Fair Work Australia (FWA) must determine whether, as a matter of discretion, the time for the filing of the application be extended based on ‘exceptional circumstances’ and the specific requirements of s 394(3), which at this juncture, I set out hereunder:
FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.
[3] In addition, the respondent claims that on 24 November 2011, when the building management for the building the applicant was working at, advised that the applicant was to be excluded from the premises, attempts were made between 24 November and 8 December, to relocate the applicant. It was said that when an alternative full time position, with the same duties and responsibilities, was offered to the applicant at Chatswood, he rejected the offer and failed to attend the site. Given these circumstances, the respondent asserts that there was no dismissal of the applicant and he abandoned his employment. I note that the respondent declined to participate in a conciliation of the claim, only until and if, FWA determines its two objections to jurisdiction. As will become apparent later, it will be unnecessary to finally determine the second jurisdictional objection, as I have concluded that there are no ‘exceptional circumstances’ warranting the granting of an extension of time by FWA. What follows are my reasons for doing so.
SUBMISSIONS
[4] This matter will be determined on the submissions and documentary evidence tendered by both parties. No witness statements were filed and there was a short hearing on 20 April 2012, which I will avert to later. At this hearing, I invited both parties to file any further evidence upon which they rely. No further evidence was filed.
For the applicant
[5] The applicant said that he had only put 8 December 2011 as the date of dismissal, on his F2 application, because this was the last day he worked for the respondent. The next day, he emailed the respondent as follows:
Hello i am still waiting for your instruction regarding my employment status also please calculate my annual leave and other benefits was’t that happy that no written warning or any legal notice was ever served nor any chances of improving my mistakes or any verbal warning was ever given But now its all over so i look forward to resolve the current situation with my employment [sic].
He received no response.
[6] However, on 19 December 2011 he had a meeting with Mr Mick Matic, General Manager of the respondent, during which he was offered temporary relocation as a security guard, rather than to a full time concierge position. The respondent had stated that he was not dismissed and there were discussions about complaints from the client concerning the applicant’s work. The minutes of the meeting (prepared by the respondent) record the following:
6. Fractured relationship with the building manager whereby no verbal communication has occurred with the building manager for several weeks prior to the building manager’s request that Jimmy be moved from the site.
You advised that you did not stop communicating with him verbally other than Hi and Bye, but were completing you [sic] duties as required and logging all communications in the register. I said to you not verbally communicating with the building manager who is the client compromises your position, and by taking me to Fair Work Australia is not going to solve the fact that the issue is between you and the client and not me and you, which is why IO have not terminated you but am offering you an alternative position.
I also showed you the email Ahmed Sentinel Security Operations Manager send [sic] me requesting you be removed from the site as [sic] the request of the building manager.
7. Offer job relocation to Chatswood.
You verbally declined the offer, however the offer still stands open. This is where our obligation with the Fair Work act [sic] is fulfilled, we have offered you an alternative position, meaning the company has not terminated your services, you have not been sacked.
(This is no different if we lost the contract and the new contractor did not want to employ you at the building, then it is still my obligation to find you employment at another location, it would be your choice just like in this case to take up the position.)
8. Not Wearing Name Tag.
You advised that you always wear your name tag, and the building manager is not telling the truth regarding this issue, with this accusation.
9. Other issues.
You advised that the residence [sic] have your full support and are lobbying for your reinstatement, you also said that you have two (2) Lawyers in the building ready to launch a case against me for unfair dismissal with Fair Work Australia. As I said to you I have not terminated you, I have offered you another position that is my obligation fulfilled.
I also went on to say the fact that the client does not want you on their site any longer is not a Fair Work Australia issue, the client is paying for the service and can pick and choose who they want on their site. Until the Fair Work act [sic] changes and makes the client responsible then someone would have a case to answer, but the law does not exist.
[7] The applicant said his removal from the site was because of a personal preference of the building manager and for no good reason. He claimed that subsequent to this meeting, he had received continuous promises that the matter would be resolved amicably and in good faith he delayed taking any legal action. He submitted that the respondent’s failure to properly disclose an actual termination date had prevented him ‘from complying with the 60 day rule in which to make an application to the Tribunal.’ I interpose here to note that the applicant wrongly believed that the time limit was 60 days (as for adverse action claims under s 365 of the Act) rather than 14 days for claims of unfair dismissal.
[8] The applicant received an email from Mr Matic 3 days after the filing his unfair dismissal claim (20 February 2012) which reads as follows:
‘Jimmy, confirming your resignation. Your final payment will be in your account this week. I assume the account details are still the same.
Regards, Mick’
[9] The applicant strongly denied ever resigning from his employment. In a further submission, filed on the applicant’s behalf by his accountant, Mr David Cameron, of Accountants Eastern Suburbs (AES), it was said that the whole of the circumstances of this matter needed to be considered, including, the scare tactics, bullying and the misleading conduct of the respondent. In addition, the respondent took advantage of the applicant’s inexperience with the law. Mr Cameron submitted that the applicant had been promised further positions and had trusted the employer to provide him with alternatives. The only alternative he was offered was not suitable and not full time.
[10] The applicant had engaged Mr Cameron in December, who in turn, contacted the respondent. The AES representative (presumably Mr Cameron) was on leave from Christmas to 3 February 2012 and when he returned the unfair dismissal application was filed.
[11] Mr Cameron said that the respondent’s ‘shenanigans’, stall tactics and threats took place over the Festive season when courts, government departments, trades people, accountants and lawyers are on leave. The applicant was worried that if he lodged any action, he would have to pay the respondent’s costs.
[12] Mr Cameron said there was no inconvenience to the employer if the unfair dismissal claim was determined; whereas the applicant was inconvenienced by the long delay in being paid his outstanding entitlements.
For the respondent
[13] Mr D Houlihan opened his submissions by referring to the relevant statutory provisions and by citing and relying on the authorities of Cheval Properties Pty Ltd v Smithers[2010] FWAFB 7251, Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty v Blue Star’), Ho v Professional Services Review Committee No 295 [2007] FCA 388 and Baker v The Queen (2004) 223 CLR 513. He added that ‘exceptional circumstances’ might include representative error, remote location and technical problems with the FWA website.
[14] In dealing with the applicant’s specific circumstances, Mr Houlihan said the applicant had offered no reason for the delay in filing his application until 24 February 2012, when the last day for filing was 22 December 2011. The applicant had provided no statements or documentary evidence of any reason for the delay and he had suggested that his employment may have actually come to an end on 19 December 2011. Even so, the application would still be out of time and his only acknowledgment of a time limit was a reference to the ‘60 day rule’.
[15] Mr Houlihan said that the applicant was aware that his employment would cease from 8 December 2011 (s 394(3)(b)). At the meeting on 19 December 2011, he rejected alternative employment at Chatswood. This constituted a resignation; not a dismissal. The applicant took no action to dispute his termination and, indeed, took a positive step to reject alternative employment. The respondent accepts that it would suffer no additional prejudice, save for the costs of defending the claim. Mr Houlihan said there was no merit to the application because he was not dismissed, but had refused to be redeployed.
[16] In a supplementary submission, Mr Houlihan put that despite FWA requiring the applicant to put on evidence about the date of his dismissal and the reasons for the delay in filing his claim, he had chosen instead, to make a number of allegations against the respondent.
[17] Mr Houlihan noted that in the applicant’s F2 and in an email to the respondent dated 9 December, 2011 he believed his employment had ended by that date. Even if the meeting of 19 December 2011 could be considered the date of dismissal, the applicant was still out of time and nothing had been put to explain this further delay. Mr Houlihan submitted that having been given additional opportunities to put evidence in relation this matter, he had failed to do so. The applicant had thereby manifestly failed to meet his obligations and the application should be dismissed.
[18] In oral submissions, Mr Houlihan also relied on Prasad v Alcatel-Lucent Australia Ltd[2011] FWAFB 1515. Mr Houlihan noted that the applicant had received the minutes of the meeting of 19 December a few days later. He explained that the delay in paying the applicant’s accrued entitlements was because of an administrative oversight. While there had been no actual work performed by the applicant from 24 November 2011, the delay in paying final entitlements is not an ‘exceptional circumstance’.
[19] In oral submissions, the applicant acknowledged that he had commenced other employment on 7 February 2012. He maintained that he was confused by various offers of re-employment from the respondent, including to his former position. Mr Houlihan rejected this submission and said that the building manager was not the employer and once the applicant was excluded from the site, his employer had attempted to find him alternative employment, which was rejected. There were no promises to put him back to his former position.
CONSIDERATION
Relevant Authorities
[20] The meaning of the term ‘exceptional circumstances’ has been widely canvassed in various decisions of FWA Full Bench and single member decisions. Two Full Benches of FWA provide a consistent and helpful guidance as to the term’s meaning under the Act.
[21] In Nulty v Blue Star, the Full Bench, albeit under s 365 of the Act, which is a relevantly identical provision to s 394(3), said:
‘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.’
[22] In Cheval Properties Pty Ltd v Smithers, the Full Bench said:
‘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.’
See also Prasad v Alcatel-Lucent Australia Ltd.
[23] Rares, J in Ho v Professional Services Review Committee No295 at paragraph 25 -26 after citing a passage from R v Kelly (Edward) [2000] QB 198 drew a celestial analogy to make the point as to the meaning of ‘exceptional’:
And, in Baker v The Queen [2004] HCA 45; (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.’
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 everyday 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.
Application of the principles
[24] At the outset, I should say that Mr Cameron’s submissions, on behalf of the applicant, were not of much assistance, let alone persuasive. Despite being invited to put on further evidence, Mr Cameron raised unsubstantiated allegations of scare tactics, intimidation, bullying and misleading conduct by the respondent which, it was said, caused the applicant to be concerned about his future employment and entitlements, and these concerns delayed the filing of his unfair dismissal claim. However, there was no communication, email or any document, which substantiated these claims, or even hinted of them. In the absence of properly adduced and tested evidence, such allegations cannot possibly be accepted, let alone serve as a reason why the applicant did not file his claim within time. Moreover, if the applicant truly believed that he was the subject of such conduct, it seems to me that his first inclination would be to do something about it - not just wait for the return of his accountant who, with the greatest respect, was not necessarily the best source of advice on employment related issues.
[25] The applicant also seems to have been under a number of misapprehensions as to the date of his termination of employment. Firstly, on his own submission, he believed that a 60 day time limit applied to the filing of his claim - obviously a clear reference to the time limits under the Act’s General Protection Provisions in Part 3-1. Secondly, the applicant seems to believe that because he was not paid his outstanding entitlements until 7 March 2012 his employment was, in some way, still on foot. This is a misconceived notion and overlooks the facts that the last day he actually worked for the respondent was 24 November 2011, and that he had filed his claim of unfair dismissal 2 weeks before 7 March 2012. While I accept that the respondent was tardy in not paying the applicant’s accrued entitlements until 7 March 2012, there is no relationship between the termination of employment and the payment of outstanding entitlements, for the purposes of determining the true date of termination of employment. In most circumstances, particularly where no notice is given by either side, accrued entitlements are calculated after the last day of employment and paid subsequent to that date. Indeed, as is evident in many cases, there is often disputes about outstanding entitlements. Plainly, these circumstances do not permit a conclusion that the employment relationship remains legally on foot, until the entitlements are paid.
[26] However, there are other aspects of the documentary evidence which convinces me that the applicant was well aware that his employment had come to an end, at least by 19 December, and more probably on 8 December, 2011. This finding is a requirement of s 394(3)(b) of the Act. This evidence includes the following:
a) The applicant’s own originating F2 application identifies his date of dismissal as 8 December 2011. I do not accept his explanation for doing so, when he said that this was the last day he worked for the respondent. In any event, this was incorrect, as the last day he worked for the respondent was 24 November 2011.
b) The applicant’s email to Mr Matic on 9 December requested calculation of his annual leave and other benefits. He expressed his dissatisfaction with the manner of his removal from the site and then says:
‘But now it’s all over so I look to resolve the current situation with my employment.’
On any objective reading of this email, the ordinary bystander would be well satisfied that this was an acknowledgment his employment was at an end. After all, why would an employee who was unsure as to his future employment or doubted what had happened, ask for his outstanding entitlements and acknowledge it was ‘now (its) all over’?
c) The applicant did not dispute the minutes of the meeting of 19 December 2011, in which it was recorded that he had 2 lawyers in the building, ready to launch a case against the respondent for unfair dismissal with Fair Work Australia. This is unequivocal evidence that the applicant not only knew he was dismissed at that time, but he already accepted he had been dismissed and was seemingly canvassing support from residents in the building. These are not the comments of an employee unsure or uncertain as to his employment status; rather quite the contrary.
d) In addition, the applicant, after Mr Cameron’s inadvertent reference to a payslip in February 2012, acknowledged that he had commenced new employment on 7 February 2012. I ask rhetorically, why would an employee seek and accept alternative employment if he/she had not already left the employment of a former employer? On the other hand, it is to the applicant’s credit that he had secured alternative employment; but it does not assist his argument that he was holding out for a clarification of his former employment status.
e) I do not accept that ignorance of the law is a convincing reason for his delay in filing his application. Indeed, it is plain that the applicant was not ignorant of his rights at all and was apparently actively pursuing them (see para (c) above). Moreover, the fact that he later received poor technical advice from an accountant cannot be accepted as an ‘exceptional circumstance’.
f) The claim of the festive period being a reason for the delay because of a close down of courts and law firms is not an ‘exceptional circumstance’. As I said in Mikhailv Ingram Micro Pty Ltd t/a Ingram Micro [2012] FWA 4314:
‘The principle reason advanced by the applicant for his delay in filing this application was his inability to obtain legal advice over the Christmas / New Year period. Putting aside that he provided no evidence to substantiate this assertion, I respectfully agree with Richards SDP that the Christmas / New Year period is hardly an unforeseen event. When viewed in this light, I cannot accept that this reason constitutes ‘exceptional circumstances’ justifying an extension of time for filing of this claim.’
See: Smith v KJM Contractors Pty Ltd [2010] FWA 5515.
[27] I accept Mr Houlihan’s submission that the applicant has not been able to demonstrate, by properly adduced evidence, any reason, let alone one giving rise to ‘exceptional circumstances’, for his delay in filing his unfair dismissal claim.
[28] In taking these matters into account, I now turn to the other requirements of s 394(3) of the Act and what specific matters FWA must take into account in determining this application.
[29] As will be pellucidly clear from the foregoing paragraphs, the applicant has not established any reason for the delay in filing his unfair dismissal claim (s 394(3)(a)). On the available evidence, the applicant took no action to dispute his dismissal between 19 December and the date of filing his claim - 17 February 2012. Indeed, he took a positive step to do the opposite - obtain new employment (s 394(3)(c)). Mr Houlihan properly conceded that there is no additional prejudice to the respondent if the application was accepted, save for the additional cost and inconvenience of defending a merits claim. (s 394(3)(d)) I accept ss (f) of s 394(3) is not a relevant factor in this case.
[30] As to the merits of the application, (s 394(3)(e)), I obviously have no direct evidence of the reasons why the applicant was refused access to the building. On its face, the respondent was caught between ‘a rock and a hard place’. It could not ignore or dispute the building management’s directive to remove the applicant from the building. However, it took steps to ameliorate the impact of that decision on the applicant. There is no argument that he repudiated the offer of alternative employment.
[31] Mr Houlihan further submitted that the applicant’s refusal to accept reemployment at Chatswood, was an effective resignation by him, and consequently, there was no dismissal of the applicant at the initiative of the employer, as required by s 386(1)(a) of the Act. Prima facie, this submission is compelling. Alternative employment does not mean reemployment to exactly the same job with the same pay and conditions. In any event, there was a factual contest about the nature of the offer of reemployment at Chatswood. Accordingly, I do not consider the applicant’s prospects of success as to the merits of his claim, to be overwhelming.
CONCLUSION
[32] In my assessment, the arguments advanced by the applicant to support his case, seem very much an attempt to rewrite history. I am satisfied that, at the very least, the applicant’s employment came to end on 19 December 2011, and more likely on 8 December 2011. He has provided no evidence to explain the delay in filing his application outside the 14 day time limit as required by s 394(3) of the Act and, there can be no finding of ‘exceptional circumstances’ which warrant the Tribunal extending the time for such filing. The application must be dismissed. An order to that effect will accompany the publication of these reasons for decision.
DEPUTY PRESIDENT
Appearances:
For the applicant: Mr D Cameron, Accountant of 123 Bookkeepers & Accounting.
For the respondent: Mr D Houlihan, Principal Workplace Relations Advisor of First IR Consultancy Pty Ltd.
Hearing details:
2011
SYDNEY
20 April
Printed by authority of the Commonwealth Government Printer
<Price code C, PR524645>
0
5
0