Yashkumar Patel v Bureau Veritas Minerals Pty Ltd

[2020] FWC 3152

[2020] FWC 3152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yashkumar Patel
v
Bureau Veritas Minerals Pty Ltd
(U2020/7498)

COMMISSIONER MCKINNON MELBOURNE, 17 JUNE 2020

Application for an unfair dismissal remedy – whether dismissed – effective date of dismissal – extension of time refused.

Introduction

[1] Until recently, Yashkumar Patel worked as a casual laboratory technician in the heavy liquids separation department of Bureau Veritas Minerals Pty Ltd. He was stood down from his role due to lack of work on 27 March 2020.

[2] On 1 June 2020, Mr Patel applied for an unfair dismissal remedy in relation to his employment with Bureau Veritas. Applications of this type must be made within 21 days after the dismissal “took effect”, or if there are exceptional circumstances, such further period as the Commission allows. 1

[3] This decision deals with whether Mr Patel was dismissed, and if so when. It also deals with his application for an extension of time to file the application outside the statutory 21 day timeframe.

Was Patel dismissed, and when?

[4] A remedy for unfair dismissal is only available to an employee who has been dismissed. 2 Under section 386(1) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative.3

[5] This requires analysis as to whether there has been a termination of the employment relationship at the initiative of the employer for the purpose of s 386(1)(a), as opposed to termination of the contract of employment operative immediately before the cessation of the employment. 4 The contract of employment and the employment relationship are not always one and the same, particularly when it comes to casual employees.

[6] Termination “at the initiative of the employer” means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. 5 It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship.

[7] The facts in this matter are these.

[8] On 27 March 2020, Mr Patel’s supervisors, Sam Dooley and Peter Yeung, approached him and said, in words to the effect:

“For the time being, you have to stay at home. There is no work for you. We will let you know when we have work for you.”

[9] On 1 April 2020, Mr Patel sent an email to Mr Yeung. The email advised that while he respected the stand down decision, he was having difficulty surviving without any income. He requested “documentary evidence (mail/letter) to prove that I am not working” so that he could claim government benefits. At the time, neither Bureau Veritas nor Mr Patel were eligible for the ‘jobkeeper’ scheme.

[10] On 2 April 2020, Mr Yeung advised Mr Patel that his email had been forwarded to Dora Mancini, HR Business Partner, SA/NT and that she had suggested he visit the Services Australia website for further information. He replied, reiterating that he “just needed some evidence to prove that due to coronavirus that currently I lost my job” or words to that effect.

[11] On 3 April 2020, Peter replied to the effect:

“Hi Yash, I will try again but the fact is that you are still on our books. We haven’t terminated your contract. If you want to you can contact Dora direct.”

[12] On 5 April 2020, Mr Patel wrote to Ms Mancini, requesting as follows:

“So I request you to provide me necessary documentary evidence (Mail/Letter) to prove that currently, I am not working due to above mention the condition of COVID 19 and it will really help me to claim money from the government.”

[13] Ms Mancini did not respond directly to Mr Patel. Instead, she sent an email to managers on 7 April 2020 about casual employees requesting evidence of the stand down. The email was to the effect that the company could not provide Employment Separation Certificates to employees as they had not been terminated, but that a certificate was not required to claim Jobseeker or other government payments. She included links to the Services Australia website. She asked managers to share these links with employees making requests for evidence and to confirm what they were seeking. If they wanted an Employment Separation Certificate, their employment would need to be terminated. Certificates would be provided once payroll had been finalised for that week.

[14] On 7 April 2020, Mr Yeung forwarded Ms Mancini’s email to employees including Mr Patel. Later the same day, Mr Yeung emailed Ms Mancini in words to the following effect:

“From my team, only Yash was requesting an Employment Separation Certificate or some kind of letter. I asked him to go to Services Australia website to see what he needs and to contact you directly.”

[15] Ms Mancini responded, asking Mr Yeung to please clarify that Mr Patel understood he can only receive an Employment Separation Certificate as a result of termination. According to Ms Mancini, Ms Yeung confirmed verbally with her that Mr Patel had requested an Employment Separation Certificate.

[16] Mr Patel says he did not ask for an Employment Separation Certificate. What he wanted was an email or letter from Bureau Veritas that said “currently we don’t have work and Mr Patel is stood down” to help him apply for jobseeker payments. I accept Mr Patel’s evidence on this issue and prefer it to the hearsay evidence of Mr Yeung.

[17] In the following weeks, Mr Patel kept in touch with his supervisors asking if there had been any changes in circumstances. He told them he was struggling financially and that he was willing to work.

[18] On 30 April 2020, Ms Mancini sent Mr Patel an email enclosing an Employment Separation Certificate completed by the payroll department that day. According to the certificate, Mr Patel’s employment had ceased on 27 March 2020. The reason for separation was “casual”.

[19] On 27 May 2020, Mr Patel contacted Ms Mancini to advise that he had just received his permanent residency, that the company could claim jobkeeper payments for him now and that he was still willing to work. Ms Mancini replied by advising that she would add the information to his file. Mr Patel was surprised to hear that the company still had a file for him, as he had been dismissed on 30 April 2020, in his mind with effect from 27 March 2020. He asked if that meant there was a chance he could get back to work again. Ms Mancini replied that there were currently no employment opportunities.

[20] It is apparent that there was a misunderstanding between the parties about precisely what Mr Patel was requesting in the period from 27 March 2020 until 7 April 2020. Mr Patel had difficulty communicating his position to Bureau Veritas and the company wrongly assumed both that Mr Patel had asked for an Employment Separation Certificate and that he knew this meant his employment would terminate.

[21] The company’s resistance to any form of written advice for casual employees about the stand down other than in the form of an Employment Separation Certificate, and then only in the circumstances of termination of employment, meant that it was wilfully blind to the possibility of meeting Mr Patel’s request in any other way. There is no apparent reason why confirmation of the stand down could not have been provided as requested.

[22] Mr Patel did not ask for an Employment Separation Certificate and he did not resign from his employment on 5 or 7 April 2020. Mr Patel was simply asking for written confirmation of the stand down by Bureau Veritas to assist in his claim for government support. He was expecting to return to work once circumstances changed. In the meantime, he wanted a “mail/letter” to prove that he was currently not working due to the COVID-19 pandemic. His use of the word “currently” and its connection to the pandemic reflected precisely what he had been told on 27 March 2020 by his supervisors about being stood down. He was consistent in this request each time it was repeated. Nothing in his language indicated that he had no intention of returning to work for Bureau Veritas once the stand down was over. While Bureau Veritas relies on Mr Yeung’s advice to Ms Mancini that he had confirmed the request for an Employment Separation Certificate from Mr Patel, that evidence is equivocal. It refers to Mr Patel’s request for a “certificate or some kind of letter”.

[23] The last day Mr Patel worked was 27 March 2020. As a casual employee, his final contract of employment came to an end on that day. However, the employment relationship between the parties continued as Mr Yeung’s email to Mr Patel on 3 April 2020 confirms.

[24] I find that the employment relationship came to an end at the initiative of Bureau Veritas. Mr Patel was dismissed on 30 April 2020 when he received an email from Ms Mancini enclosing his Employment Separation Certificate stating that his employment had ceased. The delay in making this application is accordingly 11 days.

Should additional time be allowed to make the application?

[25] An extension of time to apply for an unfair dismissal remedy can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon” but not necessarily “unique, or unprecedented, or very rare”.  6

[26] Section 394(3) of the Act sets out the factors to be considered in deciding whether additional time should be allowed, as follows:

a) the reason for the delay;

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

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

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

e) the merits of the application; and

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

[27] Reason for delay: Mr Patel’s reason for the delay in making his application is that Bureau Veritas was late in sending the Employment Separation Certificate. He was waiting and expecting to go back to work and had many follow ups with his supervisors. Many other casual employees were getting work but he was not. These matters explain his actions up until 30 April 2020, but not afterwards. On or about 10 May 2020, Mr Patel says he formed the view that Bureau Veritas was not going to call him. At some point in late May 2020 he looked for free legal advice and spoke to a community legal centre over the phone. Eventually he was given information about making an unfair dismissal claim and he acted. The evidence does not adequately explain why it took more than one month after he received advice of his dismissal for Mr Patel to bring his application to the Commission. The inadequacy of the explanation weighs against the grant of additional time.

[28] Whether the person first became aware of the dismissal after it had taken effect: Mr Patel became aware of his purported dismissal effective 27 March 2020 more than one month later, on 30 April 2020. However, as that was the time the dismissal took effect, the criterion is not relevant.

[29] Any action taken by the person to dispute the dismissal: After receiving advice from Ms Mancini on 30 April 2020 in the form of the certificate, which he was not expecting, Mr Patel did not respond to Ms Mancini and did not seek to challenge the dismissal directly, preferring to maintain contact with his supervisors in the hope he would be offered more work.I infer from his role as laboratory technician that Mr Patel is an educated man. At least from 10 May 2020, Mr Patel believed he was not going to be called back for work but there is no evidence that he researched or sought advice about his options until late May 2020. His failure to proactively take steps to preserve his position on and after 10 May 2020 weighs against a grant of additional time.

[30] Prejudice to the employer (including prejudice caused by the delay): Bureau Veritas submits that it has followed a process for all affected employees and that it has been consistent in its approach. It points to a number of other employees in a similar position to Mr Patel. I am not satisfied that there is any particular prejudice to Bureau Veritas if the application proceeds. No doubt it is operating in the context of what is a very difficult trading environment for many businesses and has been for some time. However, the same can be said for Mr Patel who has been without work or income for almost three months. This is a neutral consideration.

[31] Merits of the application: On its face, the dismissal has arisen from a misunderstanding between the parties and not, for example, because of the performance, capacity or conduct of Mr Patel. Bureau Veritas asserts that it will consider Mr Patel for re-employment if and when an opportunity arises although it is clear that he will not be given preference for a role if there is another person more suited in terms of skills and experience. Procedural fairness is likely to be in issue in this case. On balance, the merits weigh in favour of a grant of additional time.

[32] Fairness as between the person and other persons in a similar position: Mr Patel asserts that other less experienced casual employees have been re-employed since the stand down and that he has been overlooked. Bureau Veritas denies the assertion of differential treatment and says there are many other employees in the same position as Mr Patel. There is no evidence before me to tip the balance one way or the other. It is a neutral consideration in this case.

Conclusion

[33] The material before me is insufficient to establish that there are exceptional circumstances in this case such that additional time should be allowed for Mr Patel to bring his claim. Even if there were, on balance the factors resolve against the grant of additional time.

[34] The application is dismissed.

COMMISSIONER

Appearances:

Y Patel for the Applicant.
D Mancini for the Respondent.

Hearing details:

2020.
Melbourne:
June 15.

Printed by authority of the Commonwealth Government Printer

<PR720242>

 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Fair Work Act 2009 (Cth), s 385(a).

 3   Fair Work Act 2009 (Cth), s 386.

 4   Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162.

 5   Ibid.

 6   Nulty v Blue Star Group (2011) 203 IR 1 at [13].