Sok Pheng Sang v Beasy Pty Ltd

[2020] FWC 6618

[2020] FWC 6618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sok Pheng Sang
v
Beasy Pty Ltd
(U2020/14289)

DEPUTY PRESIDENT DEAN SYDNEY, 11 DECEMBER 2020

Application for an unfair dismissal remedy – effective date of dismissal - extension of time.

[1] This decision concerns an application for relief by Mr Sok Phen Sang (the Applicant) pursuant to s 394 of the Fair Work Act 2009 alleging he had been unfairly dismissed from his employment with Beasy Pty Ltd (Respondent). The Applicant had worked for the Respondent since 12 October 2017.

[2] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3).

[3] There is a dispute between the parties as to the effective date of dismissal. The Applicant claims that his dismissal took effect on 28 October 2020, the day when he received his final entitlements. The Respondent contends that the Applicant was dismissed on 1 October 2020 via a text message from the Resource Manager.

[4] The application was listed for hearing on 8 December 2020. The Applicant appeared on his own behalf with the assistance of an interpreter. Mr Bret Baker, Company Director, appeared for the Respondent.

[5] The first issue to deal with is the effective date of dismissal. The answer to the question will determine whether the application was lodged within the statutory time limit, and if not, whether an extension of time should be granted.

Evidence

[6] The Applicant provided a statement detailing his version of events leading to the dismissal and screenshots of a series of text messages exchanged with ‘Damian’, the Resource Manager, and also with Mr Baker.

[7] The Applicant gave evidence that 8 September 2020 was the last day he performed work for the Respondent. On the morning of that day he was sent home from work after a dispute with his foreman, Steve, about being requested to start work before his shift commenced. The Applicant said that Steve was upset with him and as a result he was placed on rostered day off (RDO) from the afternoon of 8 September and in the days that followed. He attempted to contact Damian by telephone on 13 and 14 September 2020 to ask when he could return to work. His calls to Damian were not answered and so he sent a text requesting a return call on 14 September. Damian did not call but a message was received from him, saying “Hi – it will be Annual Leave for the rest of the week. Not enough work – other people are off also. I’ll let you know on Friday about the following week.”

[8] The Applicant received two further text messages from Damian on 20 and 27 September, saying “Annual Leave next week”.

[9] He continued to make telephone calls and send text messages to Damian requesting to talk but received no response to these messages.

[10] On 30 September 2020 the Applicant received the following text message from Damian:

“Hi Sok I have been told you are working elsewhere with EIR Group. Can you please drop off your company property (keys etc..) when you are able to.”

[11] After receiving the text message, the Applicant texted Mr Baker the following:

“Hi Bret I’m Sok can you please call me back I need to talk about working why everyone have work except me did I do something wrong with company please tell me I want to work thanks”

[12] Shortly thereafter he texted both Mr Baker and Damian the following:

“Hi Damian an Bret why you not pick up my phone and reply back my message I try to contact you why you ignore my phone why you want me to drop off company property I still waiting for your message and call me back to work. Am I sack?”

[13] In the period 1 to 7 October 2020, the following exchange took place between the Applicant and Damian:

Thursday, 1 October 2020 8:23 am

Damian: You have been on annual leave but you were also working for EIR Group, so you can no longer work for Beasy. Please drop off your keys and other property so we can pay your entitlements.

Thursday, 1 October 2020 9:48 am

Applicant: Hi Damian I still waiting for your call me back to work everyday but you let me take annual leave I know everyone in company have work except me tell me the reason ok I work with someone because I need some moneys to support my family and pay bills because you let me stay home. Just labour hire I can back to work anytime you want.

Thursday, 1 October 2020 11:07 am

Damian: Many others have been off also. Taking annual leave and RDOs. You were still getting paid by us at the time so there was no need to work elsewhere.

Applicant: I know the company have a lot of work and everyone have work everyday except me I don’t know why you do that to me it’s not fair for me I don’t want to work with someone else too.

Thursday, 1 October 2020 4:40 pm

Applicant: Hi Damian when you want me back to work I still waiting for your calling or you still give me annual leave. I know now company have a lot of work. I want to work and stay with the company for long time. Please let me know thanks.

Friday, 2 October 2020 5:10 pm

Applicant: Hi Damian will I have work next week? I know the company now have a lot of work and get some new staff and hire someone to work. Hopefully next week I will have work thanks.

Monday, 5 October 2020 5:08 pm

Applicant: Hi Damian will I have work tomorrow?

Damian: As I said on Wednesday … Can you please drop off your company property (keys etc..) when you are able to. All your remaining entitlements will he [sic] paid (Annual Leave etc..) You will not be working with us any more. Thanks.

Wednesday, 7 October 2020 5:08 pm

Applicant: Hi Damian, You forced me to take annual leave so I have the right to work somewhere else as I am on my own annual leave, I’m not being paid out of the company’s purse. Could you please inform me of the reasons why you sacked me? I will drop off the keys and the uniforms when you told me if the reasons you have sacked me

[14] The Applicant made numerous unsuccessful attempts to speak with Damian. In the period 20 to 29 October the following exchange occurred between the Applicant and Mr Baker:

Tuesday, 20 October 2020 10:51 am

Applicant: Hi Bret I’m Sok when you have time to see me I want to talk to you about work and why you sack me from work for no reason please let me know when free

Mr Baker: Damian is the Resource Manager and is the best person to discuss this with. He is on annual leave, so I won’t be able to discuss this with him till he returns, which is next week.

Applicant: So Bret you have time to talk with me by phone now or not? Or can you please tell me why you sack me? Can you please give me a reason? Did I do anything wrong? Did I do anything wrong? Damian didn’t give me the reason at all hopefully you can give me a reason about that

Now I feel upset and so unfair for me when the company did that to me. I did nothing wrong

Mr Baker: Damian returns on Monday and we have Management Meetings that day. I will contact you on Tuesday.

Applicant: Okay

Tuesday, 27 October 2020 12:31 pm

Applicant: Hi Bret how your meeting with Damian? Do you want me go back to work or you sack me? Please let me know thanks

I’m still wating for you I want to work with your company you know I did nothing wrong please let me know thanks

Mr Baker: When we just spoke, you mentioned you are currently working for cash for a company. Which company are you working for? What kind of work are you doing? Regards, Bret

Tuesday, 27 October 2020 4:00 pm

Applicant: It’s not a company for people need a hand to help them like handyman and sometime I work with EIR Group for labour hire because I wait for you call me back to work. One more thing I have been no paid from your company 3-4 weeks that’s why I need to work with someone .

I need to work with someone because I need money to support my family and pay a bills. Could you please tell me you want me back to work or you sack me? It took too long for this problem can I see you tomorrow to talk about this? Please let me know or you want to talk to me by phone now?

Mr Baker: Can I call you later?

Tuesday, 27 October 2020 7:57 pm

Applicant: Hi Bret could I see you and Damian tomorrow at the office? Because I want to know you want me back to work or you sack me we need to talk about that thanks please let me know

Mr Baker: Hello Sok, We are not available tomorrow. We will pay out any outstanding entitlements. Regards, Bret

Wednesday, 28 October 2020 5:10 pm

Applicant: Could you spell out clearly whether you have sacked me or I am still in employment with you? If you have sacked me, please pay give me a termination letter setting out the reasons for the sacking and then pay me any outstanding entitlements. Regards, Sok

Bret, please resolve this issue as soon as possible because I need money to pay my bills and home loans. If you sacked me, please issue a termination letter or pay any outstanding entitlements because I need money for my bills and to pay my home loans.

Thursday, 29 October 2020 9:38 am

Mr Baker: I understand you were requested by the Beasy Resource Manager to return all company items on 1st Oct 2020, to then have all of your entitlement paid out, as you had found another job with EIR Group.

You must have been busy working, as you only recently returned the Company property and hence the delay in paying out your entitlements till now.

Beasy’s Resource Manager mentioned you left Beay to work with EIR Group to work with EIR Group in September. EIR Group emailed us confirming this.

You were not sacked, you found another job.

Applicant: Hi Bret The reason I didn’t return the company’s property (locker keys) because you ignored my phone and text messages for the clarification whether you wanted me back to work or I was sacked. You ignored all my phone and text messages. I am not sure if you knew this. One day in early September, I got a small problem with Steve (foreman) and he sent me home. Since that day, I was never called back to work but instead I was forced to take my annual leave. The company used an excuse that there is no work, but other staff told me that the company had trained other people to substitute my position and they told me that company is very busy, so it mean the company has plenty of work, but why I was suspended? I wish to tell you that I only engaged EIR Group (a job agency) after I was forced to take annual leave after I got a small problem with Steve because I need extra money to pay my bills and home loans while I was forced to take an annual leave. This EIR job agency only gives me a few days of work, on and off, so it’s not a full time job. Again, I did not leave Beasy Resource, I was sent home after I got a problem with Steve and then forced to take RDO and then annual leave and late you stopped paying me my annual leave. How can I get have the money to pay my bills and my home loans if I don’t try to earn extra money? I just want you to do the right thing – please let me return to work or pay out all my entitlements and give me the letter of termination set out your reasons so I can move on. Thanks

[15] The Applicant disputes the Respondent’s claim that he was dismissed on 1 October 2020. He said that he was confused as to whether he was dismissed because the company repeatedly refused to confirm his dismissal, did not provide him with a letter of termination and did not pay his entitlements. The Applicant contends that the message from Mr Baker on 29 October 2020 stating “you were not sacked, you found another job” demonstrate the inconsistency of the Respondent’s claim. The Applicant believes that his dismissal did not take effect until 28 October 2020 when he received payment of his entitlements.

[16] The Respondent led no evidence in support of its contention. The Respondent submits that the Applicant was first notified of the dismissal on 1 October when he received the message from the Resource Manager. The Applicant received a further message on 5 October stating, amongst other things, “You will not be working with us any more”. On 7 October 2020 the Applicant sent a text message, stating “Could you please inform me of the reason why you sacked me? I will drop off the keys and uniforms when you told me the reason you have sacked me.” The Respondent submits that this line of text communications indicate that the Applicant was aware of his dismissal on or before 7 October 2020.

When was the Applicant dismissed?

[17] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed,¹ and can be communicated orally.² Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. 3

[18] I accept that the message sent to the Applicant on 5 October 2020 by the Respondent was reasonably clear in its intention to end the employment relationship. The Applicant’s text message of 7 October which sought the reason as to why he was sacked indicated that such communication was received at least on that day.

[19] Taking those matters into account I therefore find that the effective date of dismissal was 7 October 2020.

[20] As the application was filed on 1 November 2020, the application was made four days outside the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether the Applicant should be granted an extension of time.

Extension of time

[21] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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. 4 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.5

[22] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[23] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the delay

[24] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 6

[25] The Applicant contended that his application was not late because he did not become aware of it until 28 October 2020.

[26] I accept that the Applicant experienced a high degree of confusion as to his employment status and this was caused by the lack of communication on the Respondent’s part. I consider that the Respondent’s actions in failing to reply to the Applicant’s many requests to speak with him and clarify his employment status significantly contributed to the delay. This weighs in favour of a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[27] A failure on the part of the employer to make an employee aware of a dismissal at the time of the termination of employment may be, pursuant to s.394(3)(b), a factor in favour of an extension of time.

[28] Given the circumstances set out above, I consider that the Respondent’s actions caused a significant degree of uncertainty for the Applicant as to when his dismissal took effect, and this weighs in favour of a finding of exceptional circumstances.

Action taken to dispute the dismissal

[29] It is clear on the evidence that the Applicant made numerous attempts to question his employment status and seek clarification for the reason of the dismissal.

[30] This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[31] I cannot identify any prejudice that would accrue to the company 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. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[32] The Act requires me to take into account the merits of the application in considering whether to extend time.

[33] For the purposes of determining an extension of time application the Commission should not embark on a detailed consideration of the substantive application. 7 However a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.8

[34] The Applicant submits that his case was a clear case of unfair dismissal, pointing to the fact that the Respondent dismissed him via a text message, refused to give him a letter of termination and delayed paying out his entitlements.

[35] On the uncontested evidence in this matter before me, it appears that the manner in which the dismissal was effected lacked procedural fairness. Accordingly, I consider that the application is likely to have some merit.

[36] This weighs in favour of granting the extension.

Fairness as between the person and other persons in a similar 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 an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I have not been made aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration.

Conclusion

[38] Having considered all of the matters to which my attention is directed by the Act, I am satisfied that there are exceptional circumstances which would warrant my granting an extension of time. In this case it is a combination of the Applicant’s circumstances that support such a finding.

[39] Accordingly, an extension of time is granted. An order reflecting this decision will be issued.

DEPUTY PRESIDENT

Appearances:

S P Sang, on his own behalf.
B Baker for Beasy Pty Ltd.

Hearing details:

2020.
Sydney (By telephone):
December 8.

Printed by authority of the Commonwealth Government Printer

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1 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.

2 Plaksa v Rail Corporation NSW[2007] AIRC 333.

 3 (1986) 60 ALJR 78 at 79.

 4   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 5   Ibid.

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 7   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 8   Haining v Deputy President Drake (1998) 87 FCR 248, 250.