Rollie Fulo v Taylor's Engineering & Welding Services

[2020] FWC 4189

[2020] FWC 4189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Rollie Fulo
v
Taylor's Engineering & Welding Services
(U2020/9705)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 19 AUGUST 2020

Application for an unfair dismissal remedy – whether to extend time – vulnerable employee waited until securing alternate employment – no exceptional circumstances – application dismissed

[1] Rollie Fulo has lodged an application with the Commission under section 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by Taylor's Engineering & Welding Services (Taylor’s).

[2] Mr Fulo says that his dismissal was notified on 7 May 2020 but took effect on 1 June 2020.

[3] The application was lodged on 16 July 2020.

[4] Mr Fulo’s application has been lodged beyond the 21-day statutory time limit for the making of an unfair dismissal application. For Mr Fulo’s application to proceed it requires the Commission to grant an extension of time. Mr Fulo seeks that extension.

[5] I issued directions on 23 July 2020.

[6] On 11 August 2020 I conducted a hearing, by telephone, on the extension of time issue.

[7] Mr Fulo did not file materials in advance of the hearing. He relied on what was set out in his application.

[8] Taylor’s did not file materials in advance of the hearing. Nor did it attend the hearing. It advised that it would respond to the application if, but only if, an extension of time was granted.

[9] Mr Fulo represented himself and was assisted by a Tagalog (Philippine) interpreter provided by the Commission. He gave oral evidence.

Facts

[10] Mr Fulo worked for Taylor’s as a welder mainly at a location in Kwinana, Perth.

[11] He is a Philippine national and is working in Australia on a section 482 (employer nominated temporary skill shortage) visa.

[12] At the time of dismissal he was a casual employee.

[13] He had worked for Taylor’s since 6 November 2019.

[14] Since 7 May 2020 Taylor’s ceased to roster Mr Fulo his regular shifts. He believes this was because he had complained about working arrangements after feeling bullied by a supervisor and manager.

[15] He started looking for alternate work from 7 May 2020.

[16] In mid-May 2020 he was offered a night shift by Taylor’s. He declined, considering the amount of notice, location and time of the shift unsuitable.

[17] To maintain his visa status, Mr Folo must not be out of work for more than sixty (60) days. He has 60 days between jobs to be looking for work.

[18] On 1 June 2020 Mr Folo asked Taylor’s when his 60 days commences. Taylor’s advised it commences from that day, 1 June 2020.

[19] From that date, Mr Folo considered himself no longer an employee of Taylor’s.

[20] After 1 June 2020 Mr Folo continued to look for work. On or about 14 July 2020 he found alternate work in Kalgoorlie. He moved to Kalgoorie on 16 July 2020 and commenced working in a new job on 17 July.

Legal principles

[21] Section 394 of the FW Act requires an unfair dismissal application to be made within 21 calendar days after the date of dismissal. The Commission may grant an applicant an extension to file their unfair dismissal application where it is satisfied that “exceptional circumstances” exist.

[22] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

(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.”

[23] The application of the provisions of section 394(3) of the Act was set out in the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[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.”

[24] I apply the Full Bench’s approach in the matter before me as applied in subsequent cases. 2

Consideration

[25] For the purposes of this decision, and in the absence of a contrary position advanced by the employer, I accept the submission made by Mr Fulo that even though he had not worked since 7 May 2020, he remained on the books during May 2020 and that his dismissal did not take effect until 1 June 2020 when told by Taylor’s that his 60 day period for immigration purposes started.

[26] Mr Furlo’s unfair dismissal application was thus made forty-five (45) days after his dismissal took effect. This is twenty-four (24) days outside of the 21-day time limit.

[27] I now consider whether exceptional circumstances exist. I consider the matters in section 394(3).

Section 394(3)(a) - reason for the delay

[28] Mr Fulo’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“I’m busy at that moment looking for new company anywhere in Perth and Kalgoorlie.”

[29] In evidence Mr Fulo advanced a further reason. He said that he “was not really that busy” but was worried that a prospective employer might do a reference check with Taylor’s and that this might compromise his chances of getting another job and might put his visa (and working rights) at risk.

[30] He therefore waited until finding alternate work before making the application.

[31] The factual chronology supports this as the true reason for delay. Mr Fulo waited until obtaining work with the Kalgoorlie-based employer and only then considered that legal action against his former employer would not compromise his visa status or working rights in Australia.

[32] Mr Fulo’s reason has a certain rationale but is not convincing. Delaying making a claim against his former employer until finding another job was a conscious judgement made to minimise the risk of not securing future work. It was based on assumptions about how a prospective employer may view a candidate with an active unfair dismissal application and how Taylor’s might react were they approached by a prospective employer. Those assumptions were subjectively formed. Whilst litigating an unfair dismissal application whilst applying for other jobs could be a complicating factor in the eyes of a prospective employer this is not necessarily so. Mr Fulo’s apprehension was not based on any specific feedback from prospective employers or his former employer (Taylor’s).

[33] It is not unusual that a dismissed employee will look for another job and it is not unusual that a dismissed employee will find another job sometimes in a short period of time, sometimes longer. There is nothing exceptional about the search for fresh employment and securing work as and when it is available in the relevant labour market.

[34] Also weighing against the reasonableness of this explanation is that Mr Fulo says that he intended from the day of dismissal to make an unfair dismissal application against Taylor’s. His evidence was that even whilst employed (that is prior to 1 June) he intended to do so. He chose to wait until he had another job.

[35] Mr Fulo knew of unfair dismissal rights during the period of delay. A friend made a similar application at around the same time as Mr Fulo was dismissed. When Mr Fulo considered it the right time to make his application, that friend helped him complete the application. Mr Fulo says he had his application and relevant paperwork ready to go in advance of 16 July 2020 but waited until then.

[36] Further, to the extent Mr Fulo relies on being “busy” since his dismissal (including by making job applications) this is not an acceptable reason for delay. There is nothing unusual about a dismissed employee applying for other work and managing multiple personal commitments.

[37] I give weight to the fact that a foreign worker holding a visa is more vulnerable than an ordinary Australian citizen when looking for work. In that limited sense this is an unusual feature of this case. However, balanced against that is that Mr Fulo’s circumstances are not unique amongst that category of persons. Not only do dismissed employees generally look for another job once dismissed, other visa holders whose visa category is related to remaining employed or actively seeking employment would be in the same position were they dismissed and sought to make an unfair dismissal application.

[38] Overall, the explanations for the delay do not weigh in favour of a finding of exceptional circumstances.

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[39] Mr Fulo became aware of the dismissal as soon as Taylor’s advised him that his 60 day period commenced from 1 June 2020.

[40] This does not weigh in favour of a finding of exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[41] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 3

[42] Mr Fulo took no other action to dispute his dismissal other than to form and maintain an intention to do so at a future time (once he secured alternate employment). He did not communicate that intention to Taylor’s during the period of the delay.

[43] This does not weigh in favour of a finding of exceptional circumstances.

Section 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[44] Prejudice to the employer will weigh against granting an extension of time. 4 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.5

[45] A long delay gives rise “to a general presumption of prejudice”. 6

[46] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 7

[47] The employer has produced no evidence of prejudice.

[48] This is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[49] It is not possible on the material currently before the Commission to form any view tentative or otherwise on the merits of Mr Fulo’s application. Mr Fulo’s contentions as to unfairness would need to be the subject of evidence and fact finding.

[50] This is a neutral consideration.

Section 394(3)(f) - fairness as between the person and other persons in a similar position

[51] Mr Furlo submitted there are other employees holding similar visas who he believes want to make unfair dismissal applications, including against Taylors. There is no evidence that such applications have been made other than (it is said) an application by Mr Fulo’s friend which he believes was settled. I have no further information before me on that or other matters. The suggestion that others are in the same position and of the same frame of mind is untested assertion. In these circumstances it would be wrong to draw any conclusions as to fairness between Mr Furlo and other persons. I decline to do so.

Conclusion

[52] The delay in this matter is considerable, being more than double the statutory period for lodging a claim.

[53] Weighing the statutory considerations with the length of the delay I am not satisfied that exceptional circumstances exist. Mr Furlo is in an unusual category of employee (being a vulnerable visa holder) but his explanations for delay are not convincing. Delay was the product of assumption and conscious decision on his part to wait until he found alternate employment. He held a sense of grievance with his dismissal from at least the time of his dismissal taking effect. He did not prosecute that sense of grievance within twenty-one days even though he knew of unfair dismissal rights and intended to exercise those rights.

[54] Mr Fulo filed at a time that best met his post-dismissal situation. Whilst there was a certain logic to his reasoning, granting an extension of time in those circumstances would be to subject the statutory time limit to the subjective view of a dismissed employee about whether their chances of securing fresh employment are compromised by having an unfair dismissal application on-foot. Such an approach does not accord with the purpose of the time limit nor does it constitute an exceptional circumstance. It is not unusual for dismissed employees to take more than twenty-one days to secure alternate work, including vulnerable employees.

[55] Other relevant considerations do not weigh in favour of a finding of exceptional circumstances.

[56] The circumstances not being exceptional the request for an extension of time is refused. Accordingly, the application cannot proceed and must be dismissed. An order⁸ reflecting this decision will be issued.

DEPUTY PRESIDENT

Appearances:

Mr R Fulo, the applicant on his own behalf

Ms C Rivera, interpreter

Hearing details:

2020
Adelaide (by telephone)
11 August

Printed by authority of the Commonwealth Government Printer

<PR721696>

1 [2011] FWAFB 975

 2   For example, Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 3288

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 4   Ibid

 5   Ibid

 6   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 7   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

8 PR721771