Suu Hlaing v Promotional Product Industries

[2014] FWC 5115

[2014] FWC 5115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Suu Hlaing
v
Promotional Product Industries
(U2014/6999)

COMMISSIONER GREGORY MELBOURNE, 6 OCTOBER 2014

Application for extension of time.

Introduction

[1] Ms Suu Hlaing (“Ms Hlaing”) was employed by Promotional Product Industries as a Decal Applicator. She first worked for the Company in July 2007 until she was dismissed in late 2009. However, she was re - employed in July 2010 and worked until she was dismissed again on 9 April 2014.

[2] After her dismissal Ms Hlaing initially made enquiries with the office of the Fair Work Ombudsman (FWO) about alleged wage underpayments, but then proceeded to lodge an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (“the Act”). However, her application was received by the Fair Work Commission (“the Commission”) on 2 May, 2 days after the 21 day period set by s.394 of the Act.

[3] However, s. 394(3) of the Act enables the Commission to grant an extension of time in which to make application if it believes there are “exceptional circumstances” to warrant the exercise of this discretion. It provides:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.” 1

[4] Mr M.Wynn appeared on behalf of Ms Hlaing. She was also assisted by an interpreter. Ms K.Walker from Printing Industries Association of Australia appeared on behalf of Promotional Product Industries (“Promotional Products”).

The Issue to be Determined

[5] Are there are “exceptional circumstances” in this matter, taking into account the considerations contained in s.394(3) of the Act, to warrant the Commission exercising its discretion to grant Ms Hlaing additional time in which to make her application?

The evidence and submissions

[6] Ms Hlaing provided an outline of submission and a witness statement from Husin Sin. Promotional Products also provided an outline of submissions. As indicated, s.394(3) requires the Commission to take account of the various considerations set out in the sub section in deciding whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend the time in which to make application. The submissions of the parties follow in regard to each of these considerations.

(a) the reason for the delay

[7] The outline of submissions and witness statement provided by Ms Hlaing did not go into any significant detail about the why her application was not lodged within the 21 day time period. However, in response to questions from the Commission it was indicated that following her termination she initially made contact with the FWO in regard to claims about alleged under payment of wages. This occurred approximately one week after she was dismissed because up until that point “she was emotionally drowning” and not able to deal with the matter. 2

[8] However, during the course of those discussions the Ombudsman’s office raised the possibility of lodging an unfair dismissal application. This apparently occurred on or around 30 April, or about 3 weeks after she was dismissed. Ms Hlaing then proceeded to prepare and lodge her application with the Commission. 3

[9] In cross examination Ms Hlaing stated that prior to the discussions with the FWO she was aware of the possibility of making an unfair dismissal claim, but “I didn’t know how to pursue the matter.” 4

[10] Promotional Products submits there is nothing in Ms Hlaing’s submissions that point to the existence of “exceptional circumstances” as the reason for the delay in making application. It submits the fact she initially pursued an alleged underpayment claim with the FWO does not provide support for the delay in lodging her unfair dismissal claim being due to “exceptional circumstances.” In this context it referred to the decision in Nulty v Blue Star Group Pty Ltd (“Nulty”). 5

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

[11] There is no dispute about this. Ms Hlaing acknowledges she was made aware she had been dismissed in the discussions that took place on her last day of employment. 6

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

[12] Ms Hlaing did not make any submissions going directly to this point. As indicated, her submissions stated she initially made contact with the office of the FWO about an alleged underpayment claim. While she also believed she had been unfairly dismissed the subsequent action she took to dispute her dismissal appears to be confined to the unfair dismissal application she lodged on 2 May.

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

[13] Again, Ms Hlaing did not make submissions about this matter. Promotional Products submits the circumstances surrounding her termination have been time-consuming and disruptive, and it has been the subject of various unsubstantiated claims.

(e) the merits of the application

[14] Ms Hlaing submits she was called into a discussion on the day she was dismissed and blamed for the poor quality of some mugs which had just been fired in an oven. 7 She challenged these claims but was then dismissed and escorted from the premises.8 She submits her dismissal was unfair as she was an experienced and committed employee and not responsible for any defects in the production process.9 She also submits the action to dismiss her was taken without a thorough investigation of the circumstances. Two other employees were also dismissed on the same afternoon in similar circumstances.10

[15] She also indicated in response to questions from the Commission that she had not previously been provided with any warnings in regard to her work performance and behaviour, and was not provided with the opportunity to have a support person present in the discussions on the day of her dismissal. 11

[16] However, Promotional Products submits the application has “little or no merit” and Ms Hlaing “is generally being spurious in continuing with the application.” 12

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

[17] Ms Hlaing did not make submissions about this matter. Promotional Products submits she has not been treated any differently to any other employee in a similar situation. 13

Consideration

[18] As indicated at the outset s.394(3) of the Act enables the Commission to grant an extension of time in which to make an unfair dismissal application if it believes there are “exceptional circumstances” to warrant the exercise of this discretion. It is also clear that in considering an application for an extension of time the Commission must have regard to each of the considerations set out in the sub section. The Full Bench decision in Nulty, referred to by Promotional Products, is one of a number of decisions of this Tribunal and its predecessors that have considered what is required to find “exceptional circumstances” exist to justify an extension of time being granted. Relevant extract from the Full Bench decision are contained at paragraphs [13] and [14] in the following terms:

“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.

Mere ignorance of the statutory time limit .......... 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 .... 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.” 14

[19] The decision continues to indicate that in determining an application for an extension of time the Commission is required to take account of each of the matters set out in subsections (a) to (f). 15 It also makes clear “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations.

(a) the reason for the delay

[20] It is evident Ms Hlaing is upset and distressed by her dismissal and believes she has been treated unfairly. It appears she was not provided with any warnings about issues to do with her work performance or behaviour before being dismissed, and was given little opportunity to respond to the issues raised by her employer in the discussions on the day she was dismissed. In addition, she was not offered the opportunity to have a support person present in those discussions. 16

[21] However, despite indicating she had some knowledge about the option of pursuing an unfair dismissal claim, her initial step after her dismissal was to make contact with the office of the Fair Work Ombudsman. This concerned issues to do with the alleged underpayment of wages during the period she was employed as a casual employee. However, it was not until around 3 weeks after her dismissal, and during the course of discussions with the FWO, that it was suggested she consider pursuing an unfair dismissal claim. However, that application was eventually filed two days after the 21 day period set by s.394 of the Act.

[22] Ms Hlaing said she was very distressed in the period following her termination and it took several days before she felt able to do anything in response. She acknowledged she had a limited understanding about the possibility of pursuing an unfair dismissal claim but did not know how to actually make an application. She also believes she was a valued and hard-working employee and was proud of the fact she had recently been engaged on a weekly basis, rather than as a casual employee. It is also clear from the conduct of the proceedings that her English language ability is limited. All of these factors obviously contributed to the delay in making application within the requisite period.

[23] However, I am not satisfied that any of these factors, either alone or in combination, necessarily constitute the “exceptional circumstances” that warrant an exercise of the discretion to extend the time in which to make application. As the decision in Nulty indicates in setting a statutory time limit in which to make application the Parliament expects employees will, in the normal course of events, seek out their potential options by way of remedy or redress in a timely fashion. It continues to indicate that ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[24] It has been acknowledged already that Ms Hlaing was clearly upset and distressed by the circumstances surrounding her dismissal. This is an entirely understandable reaction from someone who has been employed for a reasonable period of time and is unexpectedly dismissed. However, previous decisions of the Commission have held that feelings of distress and shock at being dismissed are common and entirely expected reactions, rather than something that can be considered to be exceptional. In this context I refer to the decision of Commissioner Roe in Ms Susan Rose v BMD Constructions Pty Ltd where he stated:

“It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.” 17

[25] This is not to downplay the significance for Ms Hlaing of the events surrounding her termination. However, it does call into question whether these circumstances can be considered to constitute the “exceptional circumstances” that would warrant an exercise of the discretion to extend time for her to make application.

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

[26] This matter is not in dispute. It is agreed between the parties that Ms Hlaing was made aware of her dismissal at the time it occurred.

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

[27] As indicated, Ms Hlaing was clearly unhappy and upset by her dismissal. However, her initial response was directed at pursuing alleged underpayment issues. It was not until the FWO suggested she consider an unfair dismissal claim that she proceeded to make her application. It appears she did nothing to actually challenge or dispute the circumstances of her dismissal until that application was eventually lodged.

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

[28] Ms Hlaing did not make submissions going to this consideration. However, Promotional Products submits the issues to do with her termination have already been time-consuming and disruptive, and it has been subjected to various unsubstantiated claims. Clearly it will be put to further time, effort and inconvenience if Ms Hlaing is allowed to pursue her application.

(e) the merits of the application

[29] Ms Hlaing submits her application has merit. She submits she was dismissed in circumstances where she was not at fault, or where any fault should have been attributed to a group of employees, instead of her being singled out. She also submits she had not previously been provided with warnings to do with her work performance or behaviour.

[30] She also submits the process was flawed. She submits there was no real investigation into what actually happened. She was given little opportunity to provide an explanation in response, and was not provided with the opportunity to have a support person present in the discussions in which she was eventually told she was to be terminated.

[31] Promotional Products made only limited submissions going to this matter. It simply submitted it was a “spurious” application that has “little or no merit.”

[32] The Commission’s role in regard to this consideration has been considered in previous decisions of the Tribunal. In the matter of Kyvelos v Champion Socks Pty Limited 18(“Kyvelos”) a Full Bench of the then Australian Industrial Relations Commission indicated the Commission is required to consider whether the Applicant has a sufficient case on the merits, “although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.”19 It continued to indicate:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 20

[33] Ms Hlaing’s submissions suggest the application may well have merit. It is unclear what the reasons for her dismissal were, and she denies having received warnings to do with her work performance or behaviour. In addition, what might be described as the procedural fairness aspects of the circumstances surrounding her termination appear flawed. I refer particularly to the limited consideration given to her explanation about what occurred, and the lack of a support person present in the discussions on her last day of employment.

[34] However, the Commission was also provided with very limited evidence about any of these matters during the course of the proceedings. It follows that I have not, by any means, formed a concluded view about the respective merits of the matter, and in the absence of detailed evidence and further submissions going to merit am not in a position to do so. However, the decision of the Full Bench in Kyvelos also make clear it is not necessary to form a concluded view at this point about what are clearly contested issues.

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

[35] I am satisfied this consideration has no particular relevance in the circumstances of this matter.

Conclusion

[36] The potential merits of Ms Hlaing’s application lend support to the view she should be given additional time in which to make her application. However, the Commission was provided with limited evidence about these matters. The decision of the Full Bench in Kyvelos also makes clear that while the respective merits are an important factor in determining whether to exercise the discretion to extend the time in which to make application, the reasons for the delay are generally the primary consideration.

[37] After considering all the circumstances involved in this matter, and the authorities I have referred to, I am not satisfied that the reasons for the delay relied upon by Ms Hlaing constitute “exceptional circumstances” that justify an exercise of the discretion to grant additional time in which to make application. Ms Hlaing was already involved in pursuing issues to do with alleged underpayments in the 21 day period following her termination. She acknowledged she had some awareness about the option of making an unfair dismissal claim, albeit with limited understanding of how to go about making application, but did not pursue that option until after the requisite time period had passed. In addition, the feelings of upset and distress she experienced following her dismissal are similar to the responses of many other employees in the same or similar situations.

[38] In conclusion, I am not satisfied that there were “exceptional circumstances” existing, either alone or in combination, that actually prevented Ms Hlaing from making application within the requisite time period. The application is dismissed.

COMMISSIONER

Appearances:

Mr. Minthura Wynn appeared on behalf of Ms. Suu Hlaing.

Mr. Kevin Edmon interpreted for Ms. Suu Hlaing.

Ms. Kylie Walker appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

4 July.

Final written submissions:

Respondent filed written submissions on 23 June 2014.

Applicant filed written submissions on 12 June 2014.

 1   Fair Work Act 2009 (Cth) at s.394(3).

 2   Transcript at PN82.

 3   Ibid at PN83.

 4   Ibid at PN170.

 5   [2011] FWAFB 975 at para 64.

 6   Transcript at PN182.

 7   Ibid at PN117.

 8   Outline of Submissions from Ms. Su Hlaing dated 12 June 2014 at para 3 to 6.

 9   Ibid at page 2, para 1.

 10   Ibid at page 1, para 7.

 11   Transcript at PN 117.

 12   Outline of Submissions from Promotional Product Industries dated 23 June 2014 at para 36.

 13   Ibid at para 38.

 14   [2011] FWAFB 975 at para 13 to 14.

 15   [2011] FWAFB 975.

 16   Transcript at PN192 to PN193.

 17   [2011] FWA 673at [10].

 18   Dec 1294/00 M Print T2421.

 19   Ibid at para 14.

 20   Ibid.

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