Sovichea Kiet v Gold and Co Pty Ltd

[2017] FWC 2744

[2017] FWC 2744

The attached document replaces the document previously issued with the above code on 18 May 2017.

Amending Mr.Keit to Mr Kiet in paragraph [6].

Amending ‘or’ to ‘that neither’ in paragraph [8].

Associate to Deputy President Hamilton

Dated 19 May 2017

[2017] FWC 2744

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sovichea Kiet
v
Gold and Co Pty Ltd
(U2017/2327)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 18 MAY 2017

Application for an unfair dismissal remedy.

[1] This is an edited version of a decision given on transcript on 12 May 2017. By agreement the matter was conducted by way of a determinative conference. The parties represented themselves, and an interpreter was provided to assist Mr Kiet.

[2] Mr Kiet’s employment with Gold and Co Pty Ltd was terminated. The employer believes that he was terminated on 15 August 2016. However, Mr Kiet advised me that he was not aware he was terminated until 1 December 2016 when he completed an employment separation certificate. I accept the employer’s explanation that he was aware of his termination well before 1 December 2016. In the alternative, he became aware on 1 December 2016 and that is the alternative date of termination of employment.

[3] The application was not filed until 3 March 2017. It does not matter. Either way, the application is well out of time. That being the case, the application is barred unless I grant a further period pursuant to section 394(3) of the Fair Work Act 2009.

[4] Turning to deal with part of that section, section 394(3)(a), the reason for the delay, in this case, Mr Kiet refers to a number of things justifying the reason for delay; namely, his poor English language skills; secondly, that he didn’t know about the law; and, thirdly, that he did not know that he was dismissed.

[5] However, ignorance of the law is not an acceptable reason for a delay and the employer says that they explained the termination to his wife. In any event, despite his poor English language skills and his claims that he did not know he was dismissed for a period, he did know he was dismissed on 1 December 2016. There was plenty of time in which he could have filed an application pursuant to the Act for an unfair dismissal remedy. I am not satisfied that there was a satisfactory reason for the delay in filing the claim.

[6] Section 394(3)(b), whether the person first became aware of the dismissal after it had taken effect. In this case, the employer says that he was aware on 15 August 2016 or shortly after that period and I accept that explanation. In any event, Mr Kiet accepts that he was aware of the dismissal on 1 December 2016.

[7] Section 394(3)(c), any action taken by the person to dispute the dismissal. Mr Kiet claims he contested the dismissal while the employer denies this. I am prepared to accept that he did not dispute the dismissal. In any event, in the alternative, I accept that he may have done so and I give some weight to that as a factor.

[8] Section 394(3)(d), prejudice to the employer, none is claimed so that is a neutral factor that neither counts against or counts in favour of the application.

[9] Section 394(3)(e), the merits of the application, this is a neutral factor, and the merits will have to be determined in a full trial of the case.

[10] Section 394(3)(f), this again is a neutral factor in this case.

[11] Having regarding to these findings, I turn to deal with the question of whether or not there are exceptional circumstances which warrant an extension of time. In considering the term “exceptional circumstances”, I have regard to the decision in Nulty v Blue Star Group Pty Ltd 1, where the Commission said:

[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. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[12] In this case, Mr Kiet says that he likes his job and he wants to return to it and that the dismissal is not a good thing for him as it had an adverse effect on him. However, having regard to that submission and all the factors above, there are no exceptional circumstances in this case which warrant an extension of time. It is not uncommon for a dismissal to have an adverse effect on an employee. In fact, it may even be a very common thing.

[13] I am not satisfied that there are exceptional circumstances warranting an extension of time. I refuse the application for an extension of time. I am, therefore, required to dismiss the application and will do so. An order was issued dismissing the application and is contained in PR592885.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975

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