Wonho Park v KS Migration and Education Services Pty Ltd T/A Unc
[2018] FWC 4412
•27 JULY 2018
| [2018] FWC 4412 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Wonho Park
v
KS Migration and Education Services Pty Ltd T/A UNC
(C2018/3199)
COMMISSIONER SAUNDERS | NEWCASTLE, 27 JULY 2018 |
Application to deal with contraventions involving dismissal – application for extension of time – application dismissed. Application to deal with contraventions involving dismissal.
[1] On 12 June 2018, Mr Wonho Park lodged an application pursuant to s 365 of the Fair Work Act 2009 (Act) alleging that the termination of his employment with KS Migration and Education Services Pty Limited (Respondent) was in contravention of the general protections provisions of the Act (Application).
[2] Section 366 of the Act provides that a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2
Hearing
[3] I heard Mr Park’s application for an extension of time on 25 July 2018. Mr Park gave evidence in support of his application and was assisted by a Korean interpreter. Mr Park also filed an outline of argument and tendered documents, which I have considered.
[4] The Respondent did not participate in the hearing on 25 July 2018, nor has it filed a response to the Application.
Legislative Scheme
[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:
“(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 like position.”
[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking an extension.
[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group Pty Ltd. 3 In that matter the Full Bench held as follows in relation to “exceptional circumstances”:
“[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.”
Consideration
Reasons for delay – s 366(2)(a)
[8] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 4 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,5the Full Bench explained (at [31]) the correct approach by reference to the following example:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
[9] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s 366(2)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 6
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
[10] As to credible explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 7
Relevant chronology of events and reasons for delay
[11] Mr Park contends in his Application that he was dismissed on 17 July 2017. Mr Park gives the following background to his dismissal in section 1.3 of his Application:
“There have been several problems between Mr Woo and I regarding my unpaid superannuation. Finally, on the 17th of July, I have lodged a report to the ATO for unpaid super contributions from my employer. Following my report to the ATO, KS migration have been avoiding my contact and ignoring it. Consequently, I have not been able to receive any salary, and have been completely disconnected from the company, essentially dismissed, but without any formal documentation.”
[12] Mr Park’s contention that he notified the Australian Taxation Office (ATO) on 17 July 2017 of the fact that the Respondent had not paid his superannuation guarantee obligations is supported by a letter from the ATO to Mr Park dated 18 August 2017. By letter dated 10 January 2018, the ATO informed Mr Park that its investigation had found that the Respondent owed him superannuation guarantee amounts. By letter dated 16 May 2018, the ATO informed Mr Park that work was in progress to collect the superannuation guarantee debt owed by the Respondent.
[13] I accept Mr Park’s contention that his employment relationship with the Respondent came to an end on 17 July 2017. The 21 day time period for Mr Park to make his Application therefore expired on 7 August 2017. 8 Given that Mr Park filed his Application on 12 June 2018, the Application was filed 309 days late.9
[14] In accordance with the principles summarised in paragraph [8] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 7 August 2017 to 12 June 2018. However, the circumstances from the time of the alleged dismissal on 17 July 2017 must be considered when assessing whether there is credible explanation for the delay, or any part of the delay, beyond the 21 day period.
[15] Mr Park gave the following explanation for his delay in section 1.4 of his Application:
“I believed that the ATO would be able to solve the issue and somehow make things work between the company and I. However, as time progressed, nothing became solved, and the last contact I have received from the ATO was on the 16th May 2018, stating ‘your superannuation guarantee debt collection is progressing’. I believed that no further positive outcome would arise from the ATO, as I have not received any contact from Mr Woo either. This is why I have lodged a delayed complaint to the ombudsman.”
[16] In his outline of argument, Mr Woo explained his delay in making his Application as follows:
“I had been awaiting a response from the ATO regarding my unpaid superannuation against KS Immigration and Education Pty Ltd. I believed that the ATO could solve these problems. However, the application lengthened for almost a year, and could not resolve it. Also, I have not received my wages since June 2017. This sums up to 33,000 dollars and 3,135 dollars of superannuation. This is why the application was handed in late.”
[17] In the circumstances of this case, I accept that Mr Park has provided credible explanation for not filing his Application for a month or so from 17 July 2017, on the basis that the Respondent was refusing to communicate with him. However, I do not accept that Mr Park has provided credible explanation for not filing his Application in respect of the period from a month or so after 17 July 2017 to 12 June 2018. Waiting for the ATO to pursue unpaid superannuation from an employer is not a reasonable explanation for a long delay in making a general protections application in circumstances where the Act provides for such applications to be made within 21 days, subject to an ability to extend the timeframe in exceptional circumstances.
[18] Mr Park gave oral evidence that his last day of work for the Respondent was on 15 November 2017 and he was last paid by the Respondent in June 2017. Even if Mr Park’s employment with the Respondent came to an end on 15 November 2017, as distinct from the earlier date contended for by Mr Park of 17 July 2017, I would still find that Mr Park has not provided a credible explanation for not filing his Application from about the commencement of 2018 until 12 June 2018.
[19] On balance, I find that this factor (s 366(2)(a)) weighs strongly against a finding of exceptional circumstances and granting Mr Park an extension of time.
Any action taken by the person to dispute the dismissal – s 366(2)(b)
[20] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 10
[21] I accept that Mr Park made numerous attempts to communicate with Mr Woo and the Respondent to dispute his dismissal and the non-payment of wages and superannuation.
[22] For the reasons set out in the previous paragraph, I find that Mr Park did take action to dispute his dismissal and this factor (s 366(2)(b)) weighs in favour of a finding of exceptional circumstances and granting Mr Park an extension of time.
Prejudice to the employer (including prejudice caused by the delay) – s 366(2)(c)
[23] Prejudice to the employer will weigh against granting an extension of time. 11 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.12 The employer must produce evidence to demonstrate prejudice. A long delay gives rise “to a general presumption of prejudice”.13
[24] The period of the delay in this matter was 309 days. No evidence was adduced by the Respondent in this case to demonstrate prejudice.
[25] Although the lengthy delay in this case gives rise to a general presumption of prejudice, no evidence was adduced of any such prejudice. In the circumstances, I am satisfied that this factor (s 366(2)(c)) weighs in favour of a finding of exceptional circumstances. 14
Merits of the application – s 366(2)(d)
[26] Mr Park contends that the Respondent has contravened s 340 of the Act. Mr Park described the actions of the Respondent that led him to make the Application as follows: 15
“Mr Woo is operating a company in another person’s name, although he is the realistic owner, and is successfully expanding his business in Korea and Vietnam. I have lodged this application not only because he has not contacted me after rightfully reporting to the ATO about my unpaid superannuation and wages, but also to prevent his misconduct from occurring to anybody else.
I would also like to highlight that the Prime Education Pty Ltd is under the ownership of Mr Kyungsoo Woo, and I have extensive email correspondence to prove this. If this issue goes untouched, the injustice which has occurred to me will most likely happen to others as well.
…
According to the General Protections Bench book, it states that a person must not take adverse action against another person because the other person has a workplace right, or has, or is not exercised a workplace right. As soon as I have exercised my workplace regarding my unpaid super and salary, the company deliberately cut all contact with me and refused to pay my salary. It can be restated that Mr Woo and his company took adverse action to ignore my contact because I have exercised my right to request for my unpaid super and wages.”
[27] Although I do not have a great deal of information in relation to Mr Park’s substantive application concerning the Respondent’s alleged contravention of s 340 of the Act, I am satisfied that it is of sufficient merit to weigh in favour of a finding of exceptional circumstances.
Fairness as between the person and other persons in a like position – s 366(2)(e)
[28] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 16 considered this criterion and said (at [41]):
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
[29] I am not satisfied that the issue of fairness as between Mr Park and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant, I find that this factor is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[30] Having considered all the circumstances and taken into account the matters referred to in s 366(2)(a) to (e) of the Act, I am not satisfied that there are exceptional circumstances such as to allow a further period for the Application to be made.
[31] Accordingly, the application for an extension of time is refused. The jurisdictional objection to the Application being made out of time is upheld and the substantive Application is dismissed.
COMMISSIONER
Appearances:
Mr Park appearing on behalf of himself, assisted by Ms Yo, interpreter.
Hearing details:
Newcastle.
2018.
25 July.
Printed by authority of the Commonwealth Government Printer
<PR609460>
1 Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
2 Section 366(2) of the Act
3 [2011] FWAFB 975
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
5 [2016] FWCFB 349
6 [2018] FWCFB 3288 at [35]-[45]
7 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
8 That is, 21 days from 17 July 2017 (not including 17 July 2017) is 7 August 2017.
9 That is, 12 June 2018 is 309 days after 7 August 2017.
10 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
11 Ibid.
12 Ibid.
13 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
14 Long v Keolis Downer[2018] FWCFB 4109 [66]
15 Sections 3.1 and 3.3 of the Application
16 [2016] FWCFB 6963
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