Roland Bernabe v Moonee Ponds Healthy Food Pty Ltd
[2024] FWC 2762
•3 OCTOBER 2024
| [2024] FWC 2762 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Roland Bernabe
v
Moonee Ponds Healthy Food Pty Ltd
(C2024/5364)
| DEPUTY PRESIDENT BELL | MELBOURNE, 3 OCTOBER 2024 |
Application to deal with contraventions involving dismissal – application filed out of time – circumstances not exceptional – application for extension of time dismissed.
On 1 August 2024, Mr Roland Bernabe applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (the Application).
Mr Bernabe was employed as an executive chef. His ‘Form F8’ application states he commenced employment on 24 April 2024 and was dismissed effective on Saturday, 6 July 2024.
In Mr Bernabe’s application, he identified the legal name of the respondent as Mr Zhijun Zhang, trading as Umiyaki Japanese Restaurant. In the Form F8A response, the respondent initially listed the correct name of the respondent as Moonee Ponds Healthy Food Pty Ltd, trading as Umiyaki Japanese Restaurant and Bar. An application to amend the Form F8A response added an additional employer, being Unihill Healthy Food Pty Ltd, also trading as Umiyaki Japanese Restaurant. The respondent(s) indicated that there were separate (oral) employment contracts and that Mr Bernabe’s particular terms and conditions of employment were affected by which of two potential restaurant locations he was working at. Upon inquiries by me, no payslips or other documentary evidence was provided about this issue (it appears such documents do not exist) and the parties agreed for the proceeding to continue on the basis that the sole respondent was Moonee Ponds Healthy Food Pty Ltd, trading as Umiyaki Japanese Restaurant and Bar. For avoidance of doubt, I consider that nothing turns on the confusion as to the correct employer(s), although it potentially does raise different issues regarding Mr Bernabe’s allegations of unpaid entitlements (see below).
The respondent raised a jurisdictional objection to the Application on the ground that that it was made outside the 21-day time limit set out in s 366(1) of the Act.
Section 366(1) requires an application under s 365 to be made within 21 days after the dismissal took effect. The Commission must therefore determine in the first instance whether further time for lodgement of the application is required and, if so, whether it should be granted.
Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 366(2) of the Act. Section 366(2) states:
“(2) 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) 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 similar position.”
In order for the Commission to allow this further period of time, it must be satisfied that there were ‘exceptional circumstances’ which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group (2011) 203 IR 1 at [13]).
Upon the matter being allocated to me, I issued directions for the filing of evidence and submissions. After conferring with the parties, I resolved to conduct the matter by way of a determinative conference.
Mr Bernabe filed a witness statement, in addition to his ‘Form F8’ application. The Respondent called Mr Frank Zhang as witness. Both witnesses were cross-examined. The respondent was legally represented by counsel, with permission having been previously granted.
When did the dismissal take effect?
The dismissal was effected orally. Mr Bernabe states that Mr Zhang (his manager) told Mr Bernabe in person on the evening of 6 July 2024 not to come into work anymore, including the next day, which Mr Bernabe described in his statement as Saturday, 7 July 2024.
The employer, in its Form F8A response (including as amended), states that Mr Bernabe was orally dismissed on 5 July 2024 and it was to take effect the following day, being 6 July 2024.
Mr Bernabe has mixed up his dates in his witness statement, although nothing turns on this. The date of 5 July is a Friday, the date of 6 July fell on a Saturday and 7 July fell on a Sunday. In his oral evidence, Mr Bernabe clarified that he was told about his dismissal at work on the evening of Friday, 5 July 2024 and he was not to come into work on Saturday, 6 July 2024.
I am satisfied that Mr Bernabe was dismissed from his employment effective on and from Saturday, 6 July 2024.
Section 366(2)(a) - Reason for the delay
For the general protections application to have been made within 21 days after the dismissal took effect, it needed to have been made within 21 days of 6 July 2024. By section 36(2) of the Acts Interpretation Act 1901 (Cth) (as in force on 25 June 2009), if the final day of the 21 day period falls on a weekend the timeframe will be extended until the next business day. As such, Mr Bernabe was required by section 366(1)(a) to have filed his application by 11.59pm on Monday, 29 July 2024.
The delay is the period commencing immediately after that time until the date the application was lodged on 1 August 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[1]
As the application was lodged on 1 August 2024, the application was lodged approximately three clear days late.
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.[2]
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.[3]
Mr Bernabe’s witness statement identifies two broad reasons for the delay in making his application:
· His attempts to “sort out everything” with the employer to be paid “my entitlement”, and
· The process of making a claim in the Commission was “very foreign” to him. In his oral evidence, Mr Bernabe also described the stress of his dismissal, which I understood as being a further explanation for the delay.
In relation to the first of the above points, Mr Bernabe’s evidence is that he believes he has not been paid his legal entitlements and that, upon his dismissal, they should have all been fixed up “in a week”. Mr Bernabe’s evidence, which I accept, is that he spent some time continuing to chase up the employer for the amounts Mr Bernabe says he was owed.
Mr Bernabe was cross-examined on text messages he exchanged with Mr Zhang shortly after his dismissal. On 16 July 2024, Mr Bernabe sent Mr Zhang a text message with photographs showing the inside of the Fair Work Commission. The accompanying text message explained he was lodging a complaint to secure his entitlements. Mr Bernabe did not lodge a complaint that day, although clearly he threatened to do so if his other demands were not met. In response, Mr Zhang stated that Mr Bernabe would get his entitlements, which would be processed on 26 July 2024 (being the next payment date), albeit reference was also made to speaking with his accountant. Further text messages ensued. It is not necessary to set them out but, in summary, Mr Bernabe was demanding what he said was owed and, on 22 July 2024, also sent a photograph of a Form F8 application (for a general protections claim) and a Form F2 application (the latter for an unfair dismissal claim). On the same day, Mr Bernabe stated that if the matter was not resolved by 26 July 2024, he would file his claim. Mr Zhang replied that and said Mr Bernabe was not owed money. No money was paid on 26 July 2024 or at all. Mr Bernabe filed his application on 1 August 2024.
While Mr Bernabe’s pursuit of entitlements he believes were owed to him are understandable, they are not matters supportive of a finding of ‘exceptional circumstances’. Far from being exceptional, disputes about past entitlements are, at the time of a dismissal, not unusual. Sometimes the claims are with merit; sometimes they are not. I express no view about the merits of Mr Bernabe’s claims in the present case but the mere fact of making them and attempting to resolve them did not, in my opinion, provide a satisfactory basis for delaying making his general protections application at all, and particularly after the deadline of 26 July 2024 had passed.
In relation to the second of the above points, I accept that Mr Bernabe was in “foreign” territory when seeking to navigate his way through his claims. Nonetheless, mere ignorance of the statutory time limit is not an exceptional circumstance[4] and nor is unfamiliarity with the process generally. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances.
While the delay in the present case is not lengthy – three days - I am not satisfied that any of the reasons, taken individually or in combination, for the applicant’s delay in commencing his claim point to circumstances that would support a finding of exceptional circumstances. Of the factors I must consider in s 366(2), I consider the factor in s 366(2)(a) tends against the application for an extension of time.
Section 366(2)(b) - action taken by the Applicant to dispute the dismissal
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[5]
Mr Bernabe had raised a dispute about alleged unpaid entitlements. While that is not a challenge to the dismissal as such, in part, he challenged his dismissal on the basis that Mr Bernabe told the employer he was “going to file a complain[t] regarding my dismissal to Fair Work Commission / Ombudsman”. I have summarised a number of those matters above.
Mr Bernabe also commenced his general protections claim, albeit he did so late.
Mr Bernabe’s initial challenge to his dismissal – albeit one aimed at securing disputed pay entitlements - is a factor that points slightly in his favour, although it is not a factor that I consider supports a finding of exceptional circumstances, whether on its own or with any other factor.
Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)
In all the circumstances, I do not find that any material prejudice would be suffered by the employer if an extension of time were granted. I consider this factor is neutral between the parties.
Section 366(2)(d) - 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 materials, although at a relatively high level.
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)”[6].
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. Nonetheless, Mr Bernabe does not appear to have advanced any compelling positive narrative to show why his dismissal was in contravention of the general protection provisions of the Act. Rather, his primary (and substantially only) allegation was that he had been unpaid his full entitlements. There was no clear explanation as to why his dismissal constituted a contravention of the general protection provisions of the Act. While I am prepared to grant some degree of latitude given the stage of the proceeding and that Mr Bernabe is self-represented, I am unable to conclude that the prospects of Mr Bernabe’s application in relation to his dismissal are better than weak on the material before me.
For the purpose of this application, I consider that the merits of the claim is a matter to be treated as a factor pointing against a finding of exceptional circumstances, although not strongly so, noting the general limitations on resolving contested matters of substance at an extension of time hearing.
Section 366(2)(e) - 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?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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.[7] 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.[8]
For the case before me, I have already set out above my observations in respect of the specific factors that I must take into account. When having regard to all of the matters listed at s 366(2) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute, whether taken individually or in combination. There are no additional matters that I am aware of that would otherwise point to a conclusion of “exceptional circumstances”. In making this conclusion, I have also had regard to further material that Mr Bernabe filed without leave after the court hearing of the matter.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Mr Bernabe’s late application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[9] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
R. Bernabe on his own behalf
T. Clamart of Counsel, instructed by J He of He Legal, for the Respondent
Determinative conference details:
2024.
Melbourne:
October 1.
[1] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] PR779924.
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