Sabia Kanji v Green Home Green Planet Pty Ltd

[2015] FWC 7058

[2015] FWC 7058

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sabia Kanji
v
Green Home Green Planet Pty Ltd
(U2015/10863)

COMMISSIONER BISSETT MELBOURNE, 13 OCTOBER 2015

Application for relief from unfair dismissal - extension of time.

[1] Ms Sabia Kanji has made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). She was employed by Green Home Green Planet Pty Ltd (the Respondent). Her employment was terminated on 9 June 2015. Ms Kanji lodged her application for unfair dismissal on 7 August 2015.

[2] Section 394(2) of the Act requires that an application for unfair dismissal must be made within 21 days of the date the dismissal took effect. The Respondent says that Ms Kanji made her application 59 days after the date the dismissal took effect meaning her application was made 38 days out of time.

[3] The Commission has the power, pursuant to s.394(3) of the Act, to extend the time within which an application can be made if it 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.

Submissions and evidence

[4] Ms Kanji was employed by the Respondent as a Training and Development Professional. She commenced in January 2012. Ms Kanji was sponsored to work with the Respondent on a 457 temporary work visa for skilled workers. The Respondent, as an approved employer, also sponsored her application for a 186 permanent residency visa to the Department of Immigration and Border Protection (the Department).

[5] Ms Kanji’s evidence is that she was told her employment was terminated due to redundancy. She says that she was told that she was not entitled to any redundancy pay as she was on a temporary work visa and four year fixed term contract and did not have the same rights as a permanent resident of Australia. Ms Kanji says that she trusted her employer to tell her the truth. She also gives evidence that at this time the Respondent made threats about advising the Department to deny her visa application.

[6] At the time Ms Kanji’s employment was terminated she understood from her migration agent that her permanent residency was about to be granted although says that at this time she was not aware the effect the termination of employment would have on the final decision with respect to her application for residency.

[7] Ms Kanji’s evidence is that, following the termination of her employment, she concentrated on gaining further employment so as not to violate what she understood to be the requirements for gaining permanent residency. She says her focus was on gaining further employment so that she could maintain her visa status and gain stability in residency. She also gave evidence that she was unable to make an application for unfair dismissal whilst she was seeking another job as she might require a reference from the Respondent.

[8] Prior to her dismissal Ms Kanji had been advised by her migration agent that her ‘application for permanent residency had been approved in all respects save the formality of the final approval process.’ 1

[9] Subsequent to her dismissal Ms Kanji says that she was informed by the Department that her application for permanent residency had failed to be completed because of her dismissal from employment with the Respondent. 2

[10] Ms Kanji’s evidence is that on 27 July 2015 she met with her migration agent who advised her that the Department had been advised by the Respondent that it was withdrawing its support for her application for permanent residency. On being told this Ms Kanji contacted an employment lawyer and made her application for unfair dismissal. She says she took no action before hand as she believed, up until this date, that her permanent residency application would proceed.

[11] Ms Kanji says that she believes the Respondent delayed telling the Department it was no longer sponsoring her application for permanent residency until after the expiration of 21 days from the date of her dismissal so as to deny her recourse to relief from unfair dismissal under the Act.

[12] The Respondent submits that the reason the Applicant was late in making her application is that she was busy looking for work. It says this is contrary to her statement that she was delayed because of the significant stress and hardship caused by the dismissal.

[13] The Respondent put to Ms Kanji that she had altered documents put to the Department. In particular it put to Ms Kanji that a letter that she provided to the Department signed by Andrew Carter of the Respondent 3 was not actually signed by Mr Carter. Ms Kanji denied that she had forged Mr Carter’s signature or the letter. Mr Carter did not give evidence.

[14] The Respondent submits that I should adopt the approach of Commission Williams in Lim v Downer EDI Mining. 4 In that matter the Commissioner rejected an application for an extension of time in circumstances where the applicant was a 457 visa holder who made a late application because he was not aware of his rights. In dismissing the application for an extension of time the Commissioner commented that it was not unusual, regardless of place of birth, for a person not to be aware of their rights. He said that ignorance is not an acceptable explanation for a delay.

[15] In deciding if I should grant an extension of time I have taken into account the material filed with the Commission and the evidence given in proceedings. The Respondent called no witnesses. Whilst it provided submissions in opposition to those of the Applicant I am entitled to accept the uncontested evidence of the Ms Kanji. Whilst Ms Kanji was loquacious in her evidence I consider her evidence to be reliable.

Consideration

Reason for the delay

The reasons for the delay in making the application for unfair dismissal appear to be that:

• The Respondent told Ms Kanji when she was dismissed that she did not have the rights of a permanent resident including access to redundancy pay;



• Ms Kanji was concerned to maintain her visa conditions so concentrated on finding work;



• Ms Kanji was not aware that the dismissal was the reason for the refusal of her application for permanent residency until after the 21 days from the date of dismissal had expired and, when she did become aware of this and that a finding of unfair dismissal might be a factor in a reconsideration of her application, she sought legal advice and made her application for unfair dismissal immediately.

[16] Whilst Ms Kanji says she proceeded on 27 July 2015 to get legal advice nothing was put to me of what I should make of delay from 27 July 2015 to the date of application of 7 August 2015. In any event I accept that during this time the application was in the hands of her lawyer.

When the person became aware of the dismissal

[17] Ms Kanji became aware of the dismissal the day it took effect.

Any action taken to dispute the dismissal

[18] Ms Kanji says she questioned the redundancy in the meeting at which her employment was terminated.

Prejudice to the employer

[19] The Respondent makes no submissions as to prejudice.

Merits of the application

[20] The Respondent put no material before the Commission that goes to the merits of the application for unfair dismissal. Ms Kanji gave evidence that she had not been consulted about the redundancy. It was not clear from the evidence before the Commission if Mr Kanji received her entitlements to redundancy pay or notice although, on her undisputed evidence that she was told she had no rights as a temporary visa holder, it is highly likely she received nothing.

[21] Whilst I make no finding on this matter it would appear, on the face of the material before me, that there are matters which do appear to warrant consideration.

Fairness between the Applicant and other employees in a similar position

[22] No submissions were made on this matter.

Conclusion as to exceptional circumstances

[23] The meaning of exceptional circumstances was considered in Nulty v Blue Star Group Pty Ltd  5where the Full Bench of Fair Work Australia found:

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…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. 6

[24] I am satisfied in this case that there are exceptional circumstances such that I should grant an extension of time within which Ms Kanji should make her application for unfair dismissal. I should note that, had the Respondent offered any contrary evidence to that of Ms Kanji, my decision might well have been different. However it did not and there is no reason I should doubt the evidence of Ms Kanji. She was open and forthright in giving her evidence. Whilst the Respondent sought to impugn her credibility by suggesting fraud on her part in relation to the letter signed by Mr Carter, it called no evidence to support this assertion and Ms Kanji did not waiver in her evidence on this matter.

[25] The Respondent apparently took action with the Department to withdraw its support for Ms Kanji’s permanent residency such that it was more than 21 days after her dismissal before she was unaware of the Respondent’s actions and only found out that a favourable unfair dismissal application may have a positive bearing on her application for permanent residency.

[26] I am confident that if the dismissal had no bearing on her residency application Ms Kanji would not have filed an application with the Commission even though she does believe the redundancy was not genuine.

[27] I have also taken into account the misleading statements made to Ms Kanji by the Respondent at the time of her dismissal to the effect that she was not entitled to the same benefits under the Act as a permanent resident. The Respondent is apparently an approved sponsor for 457 visa holders and to nominate visa holders for permanent residency. Presumably it is receiving migration advice. It is to be presumed that in sponsoring temporary visa holders the Respondent has received some advice as to the employment rights of visa holders while working in Australia and that they have the same rights as any other employee. If the Respondent has not received such advice it should consider doing so prior to sponsoring anymore visa holders.

[28] This is an unusual case and presents a set of circumstances that are unusual. The interaction and effect on Ms Kanji of the threat of the Respondent to take action to ensure the application for permanent residency did not proceed and the apparent advice to the Department by the Respondent, the precariousness of Ms Kanji’s situation with respect to her visa status, the influence the Respondent might bring to bear on any potential employer, the apparent influence of a successful application for unfair dismissal and her belief that her employer would not lie to her creates a set of circumstances that are not routinely encountered.

[29] I have considered the decision in Lim and consider that the circumstances of this case are markedly different to those in Lim. This is never more so than in the misleading statements made by the Respondent to Ms Kanji. Whilst it is true that there are circumstances where mere ignorance of the law is no excuse for a late application, in this case Ms Kanji was misled and there were more factors at play to explain the delay as mentioned above.

[30] For these reasons I am satisfied that exceptional circumstances exist such that an extension of time within which to make an application for unfair dismissal should be granted until 7 August 2015.

[31] An order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

M. Gibson with P. Lal of Lyttletons Lawyers for the Applicant.

B. Shaw of Counsel with M. Mileo of Scammell Black Mileo for the Respondent.

Hearing details:

2015.

Melbourne:

October 1.

 1   Exhibit A1, paragraph 5(i).

 2   Exhibit A1, paragraph 5(i).

 3   Exhibit A1, attachment A.

 4   [2009] FWA 457.

 5 (2011) 203 IR 1.

 6   Ibid, [13].

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