Tu Ata Kanitavu Petelo v The Trustee for the Supafin Unit Trust
[2023] FWC 1718
•14 JULY 2023
| [2023] FWC 1718 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Tu Ata Kanitavu Petelo
v
The Trustee For The Supafin Unit Trust
(U2023/3955)
| COMMISSIONER DURHAM | BRISBANE, 14 JULY 2023 |
Application for an unfair dismissal remedy – whether to extend time – application dismissed
On 8 May 2023, Mr Tu Ata Kanitavu Petelo (Mr Petelo/the Applicant) made an application to the Commission for an unfair dismissal remedy. He contends that he does not know when he was officially dismissed by The Trustee For The Supafin Unit Trust (the Respondent) but acknowledges that he received a text message from his father, Mr Sione Taione, who is also an employee of the Respondent, on 13 April 2023, advising him that he had been dismissed.
Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states 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 section 394(3). As the Applicant lodged his application on 8 May 2023, and the date of the dismissal was 13 April 2023, he was four (4) days out of time.
In order for the application to proceed, Mr Petelo requires the Commission to grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a Determinative Conference on 28 June 2023. The Applicant and the Respondent gave oral evidence and sought that the material they had already filed be received into evidence.
The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
The Applicant called one additional witness, Mr Taione.
All the material relied upon by both the Applicant and the Respondent has been taken into consideration.
Extension of Time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
·the reason for the delay;
·whether the person first became aware of the dismissal after it had taken effect;
·any action taken by the person to dispute the dismissal;
·prejudice to the employer (including prejudice caused by the delay);
·the merits of the application; and
·fairness as between the person and other persons in a similar position.
Relevant Factors
Reason for the Delay
The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an “acceptable” or “reasonable explanation” of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas 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.[2]
Mr Petelo raised several factors to explain the delay in lodging his application:
1. that he had attempted to lodge his application earlier, but had experienced technical issues;
2. that he was waiting for formal notification of his dismissal (by way of email, phone call or letter); and
3. that he could not afford the application fee.
With respect to the first argument, Mr Petelo submits that he attempted to lodge his application on 5 May 2023, but experienced issues logging into his account as the website was undergoing maintenance. No further explanation of this issue was provided nor any evidence to suggest that he made any further attempts to lodge the application once these issues had been resolved. I do however note that even if the application had been lodged on 5 May 2023, it would still have been out of time.
Mr Petelo provided no explanation as to why he then waited another three days before finally lodging his application on 8 May 2023. Having considered Mr Petelo’s evidence in this regard, I do not accept that any technical issues he may have experienced when attempting to lodge his application on 5 May 2023 provide a valid explanation for the delay.
Turning to Mr Petelo’s second argument, that after being informed of the dismissal he elected to wait for official notification from the Respondent. Mr Petelo submits that it was his understanding that a dismissal should not be delivered by a third party, however I note that Mr Taione, as an employee of the Respondent is not considered a third party.
Further, under cross-examination from Mr Houston, Mr Taione confirmed that the usual way that the Respondent would communicate with Mr Petelo, with respect to work-related matters was through Mr Taione. Mr Taione confirmed that in this case, the Respondent had verbally advised him of the dismissal and had asked him to pass the message on to Mr Petelo which he did, via text message that same day.
In considering Mr Petelo’s argument that he was waiting for formal advice that he had been dismissed, it is important to also consider whether he made any attempt to contact the Respondent to confirm or clarify the information that had been passed on by Mr Taione. To this point, Mr Patelo provided conflicting evidence. In his written submissions he stated:
"I had also attempted to call Supafin but was told Dave was busy when I called,"The Respondent however asserts that no calls were received.
Under cross-examination from Mr Houston, Mr Petelo was asked if he has made any contact with the company, either in person or by phone since 13 April, Mr Petelo responded:
"No, I haven't.”
In response to a direct question regarding whether he made any calls or other attempts to clarify what was going on after receiving the message from Mr Taione, Mr Petelo again stated:
“No I did not.”
Mr Petelo’s admission that he did not make any attempts to contact the Respondent to seek clarification of the dismissal would seem to suggest that he accepted that he had been dismissed when he was advised as such by Mr Taione on 13 April 2023.
Further, in response to a direct question regarding how long he waited before he felt sure he had been dismissed, Mr Petelo said:
“I waited for about a week until I saw no text messages, no emails, no calls from nobody and so then I looked at the Fair Work….
My mum sent me an email to the link and then I looked at it. It seemed like a big process. And then yeah, so that's how I started.”
Mr Petelo confirms that he accessed the Fair Work Commission website and reviewed the process for lodging an application around a week after becoming aware of the dismissal. The Fair Work Commission's website provides a range of resources for potential applicants including eligibility checklists which clearly explain that an application must be made within 21 days after the dismissal.
The fact that Mr Petelo accessed this information would indicate that he was aware of the timeframe for lodgement, yet still did not lodge the application until after the 21 days had passed.
Having considered the evidence, I have formed the view that Mr Petelo became aware of the dismissal on 13 April 2023 when advised as such by his father and co-worker Mr Taione. This conclusion is supported by the fact that he did not make any attempts to clarify the dismissal and did not attend work again after becoming aware that he had been dismissed. I therefore do not accept Mr Petelo’s evidence that he was waiting for formal advice of the dismissal to be a valid reason for the delay.
Turning to Mr Petelo’s assertion that he could not afford the application fee, it is noted that the Commission does allow applicants to apply for a fee waiver. Again, this information is readily available. There is a specific section on the application form titled “Financial Hardship” which explains how to apply to have the application fee waived. Mr Petelo did not make any such application and did not offer any evidence to confirm his financial situation during the 21-day period. As such, I do not accept Mr Petelo’s evidence that he could not afford the application fee to be a valid reason for the delay.
Considering all the factors above, I have formed the view that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case.
Whether the person first became aware of the dismissal after it had taken effect
As explored above, I have formed the view that Mr Petelo was first made aware of the dismissal on 13 April 2023. This consideration weighs against an extension of time in this case.
Action to Dispute the Dismissal
As explored above, I have formed the view that Mr Petelo did not take any action to dispute the dismissal. These facts weigh against an extension of time being granted.
Prejudice to the Employer
There is no evidence of any prejudice to the Respondent. I have treated this matter as a neutral consideration.
Merits of the Application
During cross-examination from Mr Houston, Mr Petelo confirmed that he was employed as a casual and accepted that there was no agreement between himself and the Respondent for regular work. However, Mr Petelo provided evidence to the effect that he had formed the view, based on the patterns of his work, that his employment would be ongoing.
Mr Petelo provided evidence that for over three (3) years he had regularly worked shifts longer than eight (8) hours, including on weekends and public holidays. He further submitted that, depending on the season, he would work up to 17 hours in one shift then be expected to return to work with less than 10 hours off work in-between shifts. This evidence was not disputed by the Respondent.
The question of whether Mr Petelo was a casual employee or whether he had in fact been employed on a regular and systematic basis would be key issues in this case if it was to proceed. I note that this question, and the merits of the application more generally would depend on factual findings made at the final hearing. In the circumstances, I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.
As there are no exceptional circumstances, no additional time can be allowed for Mr Petelo to make his application. This means that Mr Petelo is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
T. Petelo for himself
D. Houston for the Respondent
U. Patel for the Respondent
Hearing details:
2023
Brisbane
28 June
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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