Sirima Waenwong v C Phuangbanyen & P Phuangbanyen

[2021] FWC 6698

[2021] FWC 6698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Sirima Waenwong
v
C Phuangbanyen & P Phuangbanyen
(C2021/7668)

DEPUTY PRESIDENT BEAUMONT PERTH, 24 DECEMBER 2021

Application to deal with an unlawful termination dispute - Extension of time

[1] This matter concerns an application made under s 773 of the Fair Work Act 2009 (Cth) (the Act) by Ms Waenwong (the Applicant) against C Phuangbanyen & P Phuangbanyen (the Respondents).

[2] The Applicant concedes that her application was made more than 21 days after her employment was terminated. She now asks that the Commission allow a further period for her to make her application.

[3] The Respondents filed a Form F9A in response to the application objecting that the application had been made outside of the statutory time limit. Whilst having provided several opportunities for the Respondents to respond to the documentation filed by the Applicant in support of her application, the Respondents have not availed themselves of the opportunity.

[4] It is evident that the Respondents have been non-compliant with directions issued on 1 December 2021, notwithstanding correspondence from Chambers on 2 December 2021 and 17 December 2021, alerting the Respondents to the timeframe for filing materials. Furthermore, on 16 December 2021, Chambers telephoned the phone number provided by the Respondents. The person who answered the phone was not the Respondent(s). The person provided an alternative number for the Respondents, but when that number was called, Chambers was informed that the number was not accepting calls.

[5] At the outset, it is necessary to stress firstly, that the onus for establishing ‘exceptional circumstances’ rests on the Applicant and secondly, even if the Respondents did not object to the application being accepted ‘out of time’, the Commission cannot accept such an application unless the Applicant’s onus is established to the satisfaction of the Commission. It is noted that the Respondents’ have submitted in their Form F9A that the Applicant’s employment was not terminated for an unlawful reason and that the termination was premised on the inherent requirements of the Applicant’s position.

[6] As noted, it is uncontroversial that the application was made out of time. However, for the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 774(2) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(b) any action taken by the employee 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.

[7] Even when exceptional circumstances are established, the Commission has discretion as to whether the time to make an application should be extended, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.

[8] The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted.

Background

[9] The broader context and events leading to the conclusion of the employment were as follows.

Leading up to the Applicant’s dismissal

[10] The Applicant provided unchallenged evidence of the following:

a) the Applicant started work for the Respondents on or around 4 January 2021 and provided a hard copy of details including her AMP superannuation account;

b) between January 2021 and March 2021, the Applicant worked on average 38 hours per week and pay slips showed her to be full-time;

c) on 25 May 2021, the Applicant queried with the Respondents why, for the March quarter, she had not had superannuation paid into account by 28 April 2021;

d) in the June quarter the Applicant worked on a full-time basis and accrued further superannuation from 1 April 2021 until 30 June 2021;

e) in July 2021, the Applicant again provided details of her superannuation account, providing the Respondents with a Superannuation Standard Choice Form and an AMP letter to the Respondents;

f) in July 2021, the Respondents provided details to the Australian Taxation Office that its superannuation contribution liability for the Applicant was $1,831.98 but no superannuation was paid into the Applicant’s AMP superannuation account by the Respondents;

g) in July 2021, the Applicant had her rostered hours reduced to 27.5 hours per week;

h) on 17 August 2021, the Applicant submitted a superannuation guarantee query with the Australian Taxation Office regarding the non-payment of superannuation contributions for the March quarter;

i) on 17 August 2021, the Applicant also emailed the Respondents asking why she was only being allocated 5.5 hours a day when she was a full-time employee;

j) on 30 August 2021, the Applicant submitted a superannuation guarantee query with the Australian Taxation Office regarding non-payment of superannuation contributions for the June quarter;

k) on 7 September 2021, the Respondents sent to the Applicant an email containing payslips for August with the ‘Employee type’ changed from full-time to part-time;

l) on 8 September 2021, the Applicant sent emails to the Respondents querying why superannuation had still not been paid and why her employment status from full-time to part-time had changed;

m) in September 2021, the Australian Taxation Office contacted the Respondents and established a debt for unpaid superannuation contributions – all staff were said to have been paid their outstanding superannuation except for the Applicant; and

n) on 14 September 2021, the Respondent notified the Applicant of her dismissal.

[11] The Respondents’ Form F9A ‘Employer’s response to application for the Commission to deal with an unlawful termination dispute’ set out the following underlying reasons for terminating the employment of the Applicant:

-The revenue of the restaurant has decreased; hence we can’t afford to employs as much staffs as we used to during busy season. (Attachment 1.)

- Sirima couldn’t do the task we set her to do since the start of her employment. Her main task was to prepare spring rolls however she was unable to do this task as some of the spring rolls were not well prepared and did not meet the restaurant quality.

- When we were trying to discuss with her face to face about this situation, she was not willing to talk with us and told us to go and read the email that she or her husband has sent to us. This is the kind of act that we don’t want to see or hear in our working environment. This is another reason for her termination.

Following the Applicant’s dismissal

[12] The Applicant filed her application for the Commission to deal with an unlawful termination dispute on 11 November 2021. This was despite having been notified on 14 September 2021 that she was to be dismissed effective 22 September 2021. 1

[13] In her Form F9, the Applicant explained that she had originally made an application to the Commission on 29 September 2021 (seven days after her employment had been terminated) using the Form F8 ‘General protections application involving dismissal’. 2 At the time of making her application, the Applicant had not obtained legal advice.3 The application was issued the case number C2021/6662.

[14] Having made the aforementioned application, the Applicant applied for legal advice through the ‘Workplace Advice Service’ and subsequently had a discussion with a lawyer on 6 October 2021. The Applicant purports that the lawyer did not advise that she was using the wrong form and provided advice premised on the Form F8 having been lodged. 4 The Applicant adduced an email from the Michael Law Group dated 6 October 2021, time stamped 4:13pm. Relevant parts of the Michael Law Group email are extracted as follows:

Your employment matter: Resources & optional assistance for next steps

…

As discussed, based on the circumstance you described, you have the option to apply for general protections. Below are tips and resources to help you with your choice.

General protections

Compensation: no compensation cap.

Time to lodge: 21 days from the date of dismissal, counting from the day after your dismissal. – LODGED.

[15] On 2 October 2021, the Respondent submitted a response using a Form F8A, which outlined a jurisdictional objection and other objections to the general protections application.

[16] Whilst a conciliation conference was convened on 4 November 2021, the parties were unable to reach an agreement to resolve the dispute. The parties were provided seven days in which to consider the next steps they wanted to take. In that period, the Applicant paid for advice from a Western Australian based lawyer, who the Applicant met with on 10 November 2021 at 3:00pm (AWST).

[17] The Applicant explained that the advice from the lawyer was to the effect that she had submitted the incorrect form and therefore needed to contact the Commission to discuss next steps. 5 Therefore, on 11 November 2021 at 6:00am (AWST), she contacted the Fair Work Commission and was informed that the best option was to submit a withdrawal of application C2021/662 and submit a new application using the appropriate form and explaining clearly why the application was late.6

[18] On 11 November 2021, the Applicant submitted a Form F50 to discontinue application C2021/6662. Thereafter, on 11 November 2021, the Applicant submitted a new application to the Commission using a Form F9.

Consideration

[19] There are three areas of the Commission’s jurisdiction that have a time limit of 21 days for the filing of an application and provisions allowing the Commission to exercise a discretion to extend the time for filing - where the Commission is satisfied that ‘exceptional circumstances’ exist, taking into account a number of factors.

[20] Section 366 of the Act deals with these factors in a general protections dispute and contains the same criteria as s 774(2) (unlawful termination). In unfair dismissal matters, s 394(3) replicates the same factors and adds one more – s 394(b) – ‘whether the person first became aware of the dismissal after it had taken effect’.

[21] It is accepted that one of the principles of statutory construction is that words or phrases which appear in different sections of an Act are taken to have the same meaning unless the contrary intention is expressly stated. It is therefore appropriate to have regard to decisions of the Commission which have considered the meaning of ‘exceptional circumstances’, as referred to in sections, for example, such as s 366(2) of the Act.

[22] In Tamu v Australia for UNHCR, 7a Full Bench of the Commission (albeit in s 366(2)) summarised the relevant principles to have regard to in applications of this kind:

[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

“(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.”

[18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.’ (footnotes omitted)

[23] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters  (‘Stogiannidis’), 8a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,9which had concluded that for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis the Full Bench expressed:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[24] I turn now to each of the matters the Commission is required to consider in order to be satisfied that an applicant has established ‘exceptional circumstances’ for the late lodgement of her or his application.

The reason for the delay

[25] It was evident that the Applicant misunderstood the jurisdictional requirements for making the general protections application and was guided initially by the legal advice facilitated through the Workplace Advisory Service.

[26] Where a representative error is a factor said to have contributed to the delay in making the application, it is accepted that the conduct of the applicant nevertheless is to be examined. 10 In Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service,11 a Full Bench decision which considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:

Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.” 12

[27] Having been dismissed, the Applicant took immediate steps to make her general protections application and thereafter to obtain assistance from the Workplace Advisory Service. It appears that she relied up on the advice that had been facilitated through the Workplace Advisory Service, until the point where the conciliation conference was unfruitful in resolving the dispute on 4 November 2021.

[28] The Commission provided the parties a period in which to consider their next steps (5 November to 11 November 2021). During this time, the Applicant obtained legal advice through a privately funded lawyer. Having received the legal advice on 10 November 2021, the Applicant now understood that the general protections application was misplaced and the Commission was absent jurisdiction to entertain it. Therefore, the Applicant took immediate steps to discontinue the general protections application and initiate the current application by 11 November 2021.

[29] While legal representation or representation by a paid agent is not required to file an application under s 773, and indeed, parties frequently represent themselves in such matters before the Commission, I am satisfied that it was reasonable for the Applicant to have relied upon the advice provided by Michael Law Group through the services facilitated by the Workplace Advisory Service. While there is a lack of clarity concerning the instructions that were provided to the lawyers who had been organised through that Service, it is noted that at all material times, the Respondents were named in their personal capacity in the Form F8 – general protections application involving dismissal.

[30] Furthermore, once it was apparent that the matter was not going to resolve through the conciliatory process, the Applicant sought further legal advice and immediately acted upon that advice when informed she had lodged the ‘incorrect’ application. I therefore consider that the Applicant is blameless given the diligence exercised on her behalf and the urgency adopted to address the making of her application under s 773, once advised of the shortcomings of her general protections application.

[31] I have considered the delay as the period beyond the 21-day period. However, regard has been had to the circumstances from the date the dismissal took effect. I am satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging her application. This weighs towards a finding that there are exceptional circumstances.

Action taken to dispute the dismissal

[32] While the Applicant speaks of acting promptly to inform the Respondents that she questioned her dismissal, the example she provides of such disputation is the submission of her Form F8.

[33] There is no evidence before the Commission that the Applicant took any action to dispute the dismissal prior to filing her general protections application. I consider this remarkable given that the Applicant was taken by surprise about her dismissal – having never been warned that she was underperforming or that her dismissal was imminent. Further, there was no reticence on the Applicant’s behalf to repeatedly question the Respondents, quite correctly, about the lack of superannuation contribution being made into her AMP account.

[34] In all the circumstances I consider that this factor weighs against a finding of exceptional circumstances.

Prejudice to the employer

[35] I cannot identify any prejudice that would accrue to the Respondents if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

Merits of the application

[36] The Act requires me to consider the merits of the application in considering whether to extend time. The Respondents whilst filing a response to the application have failed to file any further materials. Accordingly, the competing contentions of the parties in relation to the merits of the application are at this preliminary stage unknown and untested. The merits of the application would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant however has a prima facie case. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[37] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to this type of application. However, cases of this kind will generally turn on their own facts.

[38] The Applicant outlined that having made two queries with the Australian Taxation Office, the Australian Taxation Office established that the Respondents had not been paying superannuation for other employees within the Respondents’ business. According to the Applicant, when the Respondents were notified by the Australian Taxation Office about the unpaid superannuation, the Respondents proceeded to pay other employees their contributions but did not pay those of the Applicant, and thereafter dismissed her. The Applicant claims no other employees were dismissed.

[39] In the absence of evidence to the contrary, and in circumstances where the Respondents were provided with fulsome opportunities to respond, I am inclined to believe the Applicant’s account that other employees had not been dismissed. This factor weighs in favour of finding exceptional circumstances.

Conclusion

[40] I am satisfied that the Applicant has demonstrated there were exceptional circumstances for not lodging her application within the statutory time allowed. I have considered the reasons for the delay, which in my view are unusual and uncommon. Whilst the Applicant did not dispute her dismissal, I find there is no prejudice to the Respondents and fairness between her and others also suggests that the matter should not be dismissed at this stage.

[41] I therefore extend the time for lodging a complaint to 11 November 2021.

DEPUTY PRESIDENT

Determined on the papers.

Final written submissions:

8 December 2021.

Printed by authority of the Commonwealth Government Printer

<PR737193>

 1   Form F9 – Application for the Commission to deal with an unlawful termination dispute.

 2   Ibid.

 3   Ibid.

 4   Ibid.

 5   Ibid.

 6   Ibid.

 7   [2019] FWCFB 2384.

 8   [2018] FWCFB 901.

 9 (2010) 197 IR 403.

 10   Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466.

 11   Ibid.

 12 Ibid [35].