Shiva Kandel v Rul's Pty Ltd T/A Raj Mahal

[2017] FWC 882

[2017] FWC 882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Shiva Kandel
v
Rul’s Pty Ltd T/A Raj Mahal
(C2016/7389)

COMMISSIONER WILLIAMS PERTH, 14 FEBRUARY 2017

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr Shiva Kandel (Mr Kandel or the Applicant) under section 365 of the Fair Work Act 2009 (the Act). The Respondent is Rul’s Pty Ltd T/A Raj Mahal (the Respondent).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“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.”

[3] Mr Kandel’s application states that he was dismissed on 8 August 2016. I note the Respondent denies this and says Mr Kandel has not been employed since September 2015. Mr Kandel’s application was made on 15 December 2016 well after the 21 day time limit had passed.

[4] At the hearing of this matter Mr Kandel gave evidence on his own behalf as did his wife Mrs Debaki Kandel (Mrs Kandel) and his brother Mr Chirnajibi Kandel. For the Respondent Mr Raj Lad (Mr Lad), a Director, gave evidence.

Factual findings

[5] Having considered all of the evidence of the witnesses I find as follows.

[6] English is not Mr Kandel’s first language and throughout the hearing he was assisted by a Hindi interpreter.

[7] Mr Kandel says that since 2014 he has worked in a restaurant which changed name and ownership in February 2015. From February 2015 the restaurant became known as the Raj Mahal and was he says owned by Mr Lad. Mr Kandel says that he continued working under the new ownership until he was dismissed on 8 August 2016.

[8] Mr Kandel’s evidence is that on 8 August 2016 Mr Lad told him that he could not return to work and that he did not owe Mr Kandel any pay. Mr Kandel asked him how this could be and Mr Lad told him they would discuss the matter further when his wife returned from overseas in two weeks’ time.

[9] Mr Lad however disputes this and says that Mr Kandel has not been employed since September 2015. Mr Lad says Mr Kandel was not dismissed in August 2016.

[10] I note at this point that this decision is only concerned with whether or not the Commission should allow Mr Kandel a further period within which to make this application beyond the 21 days that is normally required assuming he was dismissed. Consequently the Commission is not required for the purposes of this decision to determine whether or not Mr Kandel was an employee nor whether or not he was dismissed in August 2016 and I make no findings about these particular issues.

[11] On 23 August 2016 Mr Kandel’s wife met with Mr Lad and understood they would be discussing Mr Kandel’s job and his pay. I accept the evidence of Mrs Kandel that Mr Lad said that he had nothing to discuss about her husband’s work and he did not owe Mr Kandel any money as he had never worked for him.

[12] Mr Kandel and his wife spoke to some of their friends and they advised the couple that they should contact the Fair Work Ombudsman (FWO) and they did so on 27 August 2016.

[13] Mr Kandel’s application in answer to question 1.4 states that the claim lodged at the FWO was for the money that he was owed.

[14] A mediation took place at the FWO in the first week of December 2016.

[15] At the mediation Mr Kandel’s claim was not resolved and Mr Lad denied that he had employed Mr Kandel and said he did not owe any money.

[16] The FWO gave the Kandel’s the number of Legal Aid WA and he and his wife met a Legal Aid lawyer on 13 December 2016 via telephone using a Hindi interpreter. 1 The evidence of Mrs Kandel, which I accept, is that it was at this point they were made aware that Mr Kandel could make a General Protections Application involving Dismissal as Mr Kandel had been dismissed because he had asked for his wages.2

Are there are exceptional circumstances?

The reason for the delay

[17] Mr Kandel submits that the reasons for the delay in making this application are that he has a poor command of English, he is not familiar with Australian law or where to go to get help and the delay between 27 August 2016 and 15 December 2016 was because he was waiting for matters to be resolved at the FWO and he was not aware that there were other steps that he could take until he spoke to the Legal Aid lawyer after the failed mediation.

[18] Considering these reasons for the delay it firstly is quite common that applicants who have been dismissed are not familiar with their legal options or where to get help. This Commission has previously found in many other cases that being unaware of the existence of a legal right or the timeframe for lodgement associated with that right is not an exceptional circumstance. 3 Mr Kandel’s lack of familiarity with Australian law and where to get help and deciding to wait for the matter to be resolved by the FWO and being unaware of the existence of other steps he could take following the unsuccessful mediation is not an acceptable reason for the delay.

[19] Secondly the fact an applicant has a poor command of English is also quite common. Indeed this is sufficiently common that the Commission has catered for such applicants by ensuring that the Commission’s website can immediately be translated into a large number of languages including Hindi. Mr Kandel’s poor command of English is not an acceptable reason for the delay.

[20] Considering the reasons for the delay I am not satisfied that these reasons satisfactorily explain the delay in making this application.

[21] The absence of acceptable reasons for the delay weighs against granting the extension of time application

Any action taken by the person to dispute the dismissal

[22] Mr Kandel did make a complaint to the FWO which however was focused on the Respondent’s alleged failure to pay him his salary. No action was taken which was focused on disputing the reasons for the alleged dismissal. This is a neutral factor.

Prejudice to the employer (including prejudice caused by the delay)

[23] There was a significant delay in this matter however there is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed. This is a neutral factor.

The merits of the application

[24] In this case Mr Kandel alleges that he was offered a full-time position as a Chef by Mr Lad but that he would have to wait 6 months for his wages and he would then be back paid. Mr Kandel asserts that Mr Lad also said to him that if he agreed to this Mr Lad would sponsor him for a permanent Visa in the future. Mr Kandel agreed to this arrangement however he says that when it was time for him to be paid he was not paid and thereafter over a number of months he regularly asked Mr Lad to pay him. Ultimately Mr Lad dismissed him and said he did not owe him any money.

[25] In reply Mr Lad denies there was ever such an offer or an arrangement and that Mr Kandel’s and his wife’s evidence is untrue.

[26] At the hearing of this matter the Commission went to some lengths to explain to the parties that this was a preliminary hearing which would decide only whether or not Mr Kandel would be allowed the additional time to make this application which should have been made within 21 days of any dismissal. It was explained the Commission would not determine the rights or wrongs of what occurred.

[27] Noting that, it is well established that when the Commission is only determining the preliminary issue of whether or not to extend the time for an applicant to make their application the Commission should not embark on a detailed consideration of the substantive case. 4

[28] In this instance I do not think Mr Kandel’s application is without merit however what he alleges occurred is refuted by Mr Lad. In the circumstances the issue of the merit of Mr Kandel’s application is a neutral consideration when deciding whether or not further time will be allowed for him to make this application.

Fairness as between the person and other persons in a similar position

[29] There is no information regarding fairness between the applicant and other persons in a similar position. This is a neutral factor.

Conclusion

[30] The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the facts and the relevant factors and have not been satisfied that there were exceptional circumstances in this case.

[31] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application was not made within the required 21 days and so will be dismissed.

[32] An order [PR590191] to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

S. Kandel on his own behalf.

R. Lad on behalf of the Respondent.

Hearing details:

2017.

Perth:

February 3.

 1   Letter from Legal Aid WA dated 22 December 2016.

 2   Exhibit A2 at paragraphs 22 and 23.

 3   See Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472 at [23].

 4   Galati v Veneto Club[2015] FWCFB 1830 at [30].

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<Price code C, PR590190>