Victor Charles Ndubueze v AWX Labour Pty Ltd

[2024] FWC 2874

[2024] FWC 2874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Victor Charles Ndubueze
v

AWX Labour Pty Ltd

(C2024/5836)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 16 OCTOBER 2024

Application to deal with contraventions involving dismissal

1. Mr Victor Charles Ndubueze made a general protections application involving dismissal pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) on 20 August 2024. The application has been made against AWX Labour Pty Ltd, a labour hire company.

1. Section 365(1) of the Act prescribes that a general protections application involving dismissal must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). As the Form F8 application records Mr Ndubueze’s contention that he was dismissed by the respondent with effect on 31 May 2024, the Commission raised a concern with the parties that the application was filed outside the 21-day statutory timeframe.

1. In its Form F8A response to the application, the respondent objects to Mr Ndubueze’s application because it contends that Mr Ndubueze was not dismissed by it. Rather, the respondent contends that Mr Ndubueze is an ongoing casual on hire/assignment employee.

1. For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

Relevant factual findings

1. Mr Ndubueze commenced employment with the respondent on 11 April 2024.[1] While Mr Ndubueze contests that he digitally signed the offer of employment produced by the respondent,[2] the respondent says that Mr Ndubueze was employed by it on a casual on-hire/assignment basis to perform work for the respondent’s clients as required from time to time.[3] Notwithstanding, Mr Ndubueze accepts that he signed a five page employment offer from the respondent which was provided to him in hard copy in the respondent’s offices on 11 April 2024.

1. Mr Ndubueze contends in his application that he was dismissed with effect on 31 May 2024.[4] However, the submissions and evidence relied upon by Mr Ndubueze demonstrates that he was offered and accepted a shift by the respondent on 18 July 2024.[5] In the proceeding before me, Mr Ndubueze submitted that he was instead dismissed by the respondent on 18 July 2024 upon the conclusion of his shift that day, noting that no further shifts have been offered to him.

1. The respondent rejects the contention that Mr Ndubueze has been dismissed by it at all.

1. As explained to the parties, noting the dispute as to whether Mr Ndubueze was dismissed or not, I will proceed on the assumption – without deciding – that Mr Ndubueze was dismissed by the respondent on 18 July 2024 as he contends, solely for the purposes of considering whether to grant a further period having regard to the matters in s 366(2) of the Act.

1. Having regard to Mr Ndubueze’s contended date of dismissal of 18 July 2024, for the application to have been within time it must have been filed by 8 August 2024. Mr Ndubueze’s application was filed on 20 August 2024. The application was therefore filed outside the statutory timeframe for lodgement.

Statutory framework

1. The Commission has the power pursuant to s 366(2) of the Act to extend the time within which a general protections application involving dismissal can be made only if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[6] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.[7]

1. Under s 366(2) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:

(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 similar position.

1. I consider these matters in the analysis that follows.

Consideration

Reason for the delay

1. The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable[8] or reasonable[9] 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.[10]

1. The period of the delay to be considered is the period commencing immediately after the 21-day timeframe for lodging the application has expired.[11] However, the circumstances from the time the dismissal took effect must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[12]

1. Mr Ndubueze submits that upon the conclusion of the pay week following the performance of his shift on 18 July 2024, he did not receive his payslip. Mr Ndubueze telephoned the respondent to address the non-payment and was advised that payroll would be contacted to resolve the issue. However, Mr Ndubueze submits that respondent did not “get back” to him.

1. Mr Ndubueze says that having earlier raised his discrimination concerns with the respondent in person, he subsequently wrote an email to the respondent on 20 July 2024. In the email, Mr Ndubueze describes the basis for his concerns that he has been the subject of racial discrimination. Mr Ndubueze submits that he did not receive a response to this email. Against this context, Mr Ndubueze describes the reason for the delay in making his application to the Commission in the following way:[13]

“The basic reason why there was delay in my application as regards these case I was trying to give them opportunity to resolve the issue, it’s obvious they are determined to short change me.”

1. Mr Ndubueze says that he provided the respondent with time to provide a response to his concerns. However, in the absence of a reply, he decided to make his general protections application to the Commission.

1. I accept that Mr Ndubueze felt concerned by the circumstances which led to him sending the 20 July 2024 email and that he sought to resolve his concerns directly with the respondent. However, the content of the email does not indicate that Mr Ndubueze was awaiting a response from the respondent, nor was a response necessary before the application could be filed with the Commission. Rather, the evidence demonstrates that Mr Ndubueze made a forensic decision to wait. This does not provide an acceptable or reasonable explanation for the delay.

1. In reaching this conclusion, I have taken into consideration that Mr Ndubueze may not be experienced in filing applications in the Commission. However, such unfamiliarity is not exceptional and ignorance of one’s rights will not usually provide an acceptable explanation for the delay.[14] The Commission’s website provides a range of information about the types of applications that can be made and the timeframe within which to lodge them.

1. While not expressly contended, I note Mr Ndubueze’s submission that the respondent had not paid him for his shift on 18 July 2024 at the time his application was made on 20 August 2024. I have considered whether this matter provides a reasonable explanation for any part of the delay. I do not consider that it does. Mr Ndubueze raised with the respondent that he had not been paid in the pay period immediately following 18 July 2024, and within the 21-day statutory timeframe. Mr Ndubueze has not drawn a connection between his obvious concern about this matter and the delay in lodging his general protections application. Nor do I consider that such a connection arises. It was not contended that Mr Ndubueze deferred making the application pending resolution of the payment issue by the respondent. Further, there is no basis to conclude that the respondent’s subsequent payment to Mr Ndubueze for this work had the effect of altering the date that Mr Ndubueze contends was his effective date of dismissal.

1. I do not find that any of the matters relied upon by Mr Ndubueze as reasons for the delay, individually or collectively, provide an acceptable or reasonable explanation for the delay. This weighs against the grant of an extension of time.

Action taken by the person to dispute the dismissal

1. Where an applicant takes action to dispute a dismissal (other than by lodging the relevant application), it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[15]

1. I accept Mr Ndubueze’s evidence that he made telephone calls to the respondent between 18 July and 20 August 2024 seeking information about his pay. While Mr Ndubueze accepts that he did not, during these discussions, ever contend that he had been dismissed by the respondent on 18 July 2024, he said words to the effect of, “if you guys don’t want me anymore, please let me know.” Mr Ndubueze says that he was advised not to worry and that his pay concerns would be resolved.

1. While the evidence discloses that Mr Ndubueze enquired with the respondent about whether it wanted him anymore, this does not constitute action taken by Mr Ndubueze to dispute the dismissal; rather, it involved action to enquire about whether or not he was still employed.

1. It follows that I am not satisfied that Mr Ndubueze took a positive step to contest his dismissal prior to filing his general protections application in the Commission. This weighs against the grant of an extension of time.

Prejudice to the employer

1. I cannot identify any particular prejudice that would accrue to the respondent if an extension of time were to be granted. The respondent’s submissions do not persuade me otherwise.

1. The mere absence of prejudice is not in itself a factor that would point in favour of the grant of an extension of time. I consider this to be a neutral factor.

Merits of the application

1. For this consideration to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[16] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mr Ndubueze’s application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[17]

1. In his general protections application, Mr Ndubueze contends as follows:[18]

“…I observed that each time Line 11 stopped work before the closing time [the line leader] will select all the India women working in the Line and put them in the other lines then asked people from other race to go home including myself, on one particular occasion I challenge him on that behavior and he declined to respond, I moved to another line and asked the Line Leader if I could work with them he accepted I continued working until closing time, after that week I noticed I’ve not been getting shift text messages again., until the last shift they sent on the 18th of July of which I accepted and work till closing time yet I have not received my pay and wages.”

1. The application further contends that it is important to Mr Ndubueze that the company is held accountable for discrimination and other abuse. Mr Ndubueze also seeks payment for the stress and frustration during this period including in relation to the delay in receiving payment for work performed on 18 July 2024.

1. The respondent rejects Mr Ndubueze’s contentions, submitting that he has not been dismissed and there has been no breach of the Act as contended. It says that there are no performance or conduct concerns in relation to Mr Ndubueze, but the host client withdrew its request for labour and there was nothing more the respondent could do except to offer Mr Ndubueze further casual on-hire work as it becomes available.

1. The parties hold substantially different views as to the matters that preceded the cessation of employment. These events turn on contested points of fact, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a view about these contested matters. However, I observe that were the application to proceed, Mr Ndubueze would be required to demonstrate that he has in fact been dismissed by the respondent, in circumstances where it says that Mr Ndubueze’s employment status remains active as a casual employee. Further, Mr Ndubueze would need to precisely articulate the persons against whom the discrimination allegations are raised, noting that Mr Ndubueze’s references to “the company” in his application appear to be references to his host employer and not representatives of the respondent, where the host employer is not a party to this claim. Having regard to these matters, I regard the merits of Mr Ndubueze’s substantive general protections application to be a neutral factor in my assessment of whether to grant an extension of time.

Fairness as between Mr Ndubueze and other persons in a similar position

1. Mr Ndubueze contends that he was treated differently, because of his race. However, I note that no specific material is raised in support of this position and in any event, applications to extend time generally turn on their own facts. I regard this factor as neutral in my consideration.

Are there exceptional circumstances?

1. The statutory time limit that applies to the exercise of a person’s right to bring a general protections application involving dismissal reflects the parliament’s intention that such rights be exercised promptly. The test of exceptional circumstances in s 366(2) of the Act establishes a high hurdle for an applicant for an extension of time.[19] Where the application is lodged outside the statutory time limit, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.[20]

1. While Mr Ndubueze took steps to dispute the non-payment of his wages on 18 July 2024 with the respondent, there is no evidence that Mr Ndubueze raised his concerns that the respondent had dismissed him on 18 July 2024. Mr Ndubueze has not provided an acceptable or reasonable explanation for the delay and these matters weigh against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.

Order and disposition

1. As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mr Ndubueze’s general protections application may be made is not enlivened. It is therefore unnecessary for me to determine the respondent’s second objection to the application, that Mr Ndubueze was not dismissed.[21]

1. Mr Ndubueze’s general protections application is dismissed.

DEPUTY PRESIDENT

Appearances:

V Ndubueze on his own behalf.
S Keller and T Lalovic, for the respondent.

Hearing details:

2024.
Melbourne (by video):
October 10.

[1] Exhibit 1, Digital Court Book (DCB) 4 at [1.2]

[2] See digital signature DCB 39-46 which indicates a digital signature was recorded at 13:52 on 11 April 2024

[3] DCB 39 at [1.2]

[4] DCB 4 at [1.4]

[5] Exhibit 2 – email 7 September 2024 (18 July)

[6] [2011] FWAFB 975; 203 IR 1

[7] Ibid at [13]

[8] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 at [9]

[9] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16]

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901; 273 IR 156 at [39]

[11] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

[12] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

[13] Exhibit 2 – email 4 September 2024

[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1 at [14]

[15] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[16] Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 at [71]

[17] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T2421 at [14]

[18] DCB 4-5 at [2.2]

[19] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth[2014] FWCFB 2288 at [21]

[20] See Cem Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479, upheld on appeal in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149

[21] See [8] of this decision

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