[2011] FWA 1555

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Kiki Lwin
v
Manpower Services (Australia) Pty Limited T/A Manpower Professional
(C2011/3189)

COMMISSIONER SIMPSON

BRISBANE, 21 APRIL 2011

Alleged contravention of general protections provisions - whether to grant extension of time for application - extension granted

[1] On 1 February 2011 Mr Lwin (the “applicant”) made an application pursuant to section 365 of the Fair Work Act 2009 (the “Act”). A conference was listed for 2nd March 2011 however was cancelled after notification was received that Manpower Professional (Australia) Pty Limited (the “respondent”) sought that Fair Work Australia (FWA) deal with the jurisdictional issue of the application being filed out of time before conciliation took place.

[2] As the applicant was dismissed on 30 November 2010 and the application filed on 1 February 2011 it was filed 2 days out of time. I issued directions on 24 February 2011 that the applicant file submissions and witness statements by 1 March 2011, the respondent by 25 March 2011 and the applicant’s reply submission by 31 March 2011. The directions also stated that if the parties require a hearing be conducted they must notify chambers by 4 March 2011. If notification was not received the Commissioner will determine the matter off the papers. No request was received from either party for a hearing.

[3] The respondent advised on 23 March 2011 that they did not receive the applicants submissions by 11 March as required by the directions order. An extension was granted for the respondent to file their submission on that basis which were received on 1 April 2011.

APPLICANT’S SUBMISSION

[4] The applicant submits that he had initially filed an unfair dismissal application but was subsequently advised that the application was jurisdictionally barred as he did not meet the minimum employment period requirements.

[5] He states that he subsequently contacted the Fair Work Ombudsman who he says advised him he could file a General Protections Dispute. He states that he then sought to contact Mr Damien Staunton at Fair Work Australia on “many occasions” without success.

[6] The applicant states that Government offices were closed between 24 December 2010 and 4 January 2011. In fact the office of Fair Work Australia in Brisbane was open on 28 and 29 December 2010.

[7] The applicant then makes reference to the flooding affecting Brisbane in January 2011. He stated that his residential area (the application gives his address as being in the suburb of Inala) was considered a high risk area during the floods. He states he experienced isolation, no power and no phone service for four days. He states that in total he experienced 4 days without electricity and shortly after four days without phone service.

[8] Further the applicant states that during this period his grandmother was “swept away” by flash flooding in Toowoomba and she was later flown from Toowoomba Hospital to the Princess Alexandra Hospital where she underwent surgery.

RESPONDENT’S SUBMISSION

[9] The respondent states that the applicant commenced casual employment with the respondent on 31 May 2010 in the position of Technical Support Agent for IBM/Apple Team working on site with a client of the respondent IBM, at IBM’s Brisbane site.

[10] The applicants casual employment was terminated by the respondent on 30 November 2010 and confirmed in an email on 1 December 2010.  1

[11] On that day Ms Jennifer Hunt, a solicitor for the respondent received a telephone call from Ms Ayezan Lwin, who informed Ms Hunt that she was the applicant’s sister and a solicitor. Ms Lwin advised that she was calling on behalf of her brother regarding “serious action taken against her brother by the respondent.” Ms Lwin discontinued the telephone call on the basis that she objected to being on a speaker phone with two solicitors participating in the conversation and demanded the email address of Ms Hunt.

[12] The following day Ms Hunt received an email from Ms Lwin summarising the facts of the applicants dismissal and proposing discussions within seven days to avoid “legitimate legal action through an unfair dismissal claim, an adverse action claim and/or discrimination claim.”  2

[13] Ms Hunt responded to the email on 6 December 2010. Ms Hunt requested confirmation from the applicant that Ms Lwin was representing the applicant if further correspondence was to be entered into, however also set out the circumstances regarding the dismissal which included prior formal warnings and a reasonable opportunity to improve his performance. Ms Hunts email also stated that the applicant’s employment fell short of six months and he was prevented from bringing an unfair dismissal claim. 3

[14] Ms Lwin responded by email on 14 December 2010 disputing that the applicant did not have 6 months service and stating other actions were available such as adverse action, a common law claim for breach of contract and discrimination which allowed longer time frames to bring a claim. 4

[15] The respondent states that while the applicant claims to have only been made aware on 23 December 2010 by Fair Work Australia that he did not meet the minimum employment period to make an unfair dismissal claim, in fact the applicant was made aware much earlier by Ms Hunt, who on 6 December 2010 had replied to an email from the applicants sister advising her that the applicant could not bring such a claim.

[16] The respondent also refers to comments from the applicants sister in emails dated 1 December and 14 December where the potential for bringing an adverse action claim were mentioned in response to the statement from the applicant that it was the Fair Work Ombudman who advised him he “should apply for a General Protection Dispute.”

[17] In response to the claim from the applicant that he had been unable to contact Mr Damien Staunton at Fair Work Australia, the respondent points out that the applicant has only provided one automatic reply from the email address of Mr Staunton as evidence of this, and further that the automatic reply email provided an FWA telephone number and email address for urgent enquiries, as well as Mr Staunton’s mobile phone number. The applicant provided no evidence that he sought to use these means to contact Mr Staunton, or evidence that he sought to contact Mr Staunton the following day when Mr Staunton’s automatic reply email advised he was returning from leave.

[18] The respondent states there is no evidence that the applicant sought to contact FWA between 24 December 2010 and 10 January 2011 and that he had ample opportunity throughout December 2010 and early January 2011 to do so. The respondent also states that if the applicant was without means of lodging his application between 11 January 2011 and 19 January 2011 he still had eleven days before the 60 day time limit expired.

[19] The respondent maintains it is disingenuous of the applicant to maintain he only learned of his ability to bring a general protections claim after discovering he was unable to bring an unfair dismissal claim.

CONSIDERATION

[20] The relevant provision in the Act for the purposes of determining this application is as follows:

[21] The Application was filed 2 days out of time which is only a brief delay. The respondent disputes the level of understanding the applicant claims to have had about his capacity to bring either an unfair dismissal claim or a general protections claim and also the point at which he would have first become aware he was unable to bring an unfair dismissal claim and the point at which he would have first become aware that he was capable of bringing a general protections claim.

[22] From my perspective the level of his knowledge regarding his rights in the period of December 2010 and early January 2011 were not as important as what occurred following 11 January 2011 and their impact on the applicant when deciding whether to allow an extension beyond the 60 day time limit.

[23] A major flooding event affected south east Queensland from 11 January 2011. The offices of Fair Work Australia in Brisbane were closed between 11 January 2011 and 21 January 2011 due to flood damage.

[24] The Application filed by the applicant states his address as being in the suburb of Inala which is a suburb impacted by flooding in January 2011.

[25] As I have set out above the applicant states that he experienced isolation, no power and no phone service for four days. He states that in total he experienced 4 days without electricity and shortly after four days without phone service.

[26] Further the applicant states that during this period his grandmother was “swept away” by flash flooding in Toowoomba and she was later flown from Toowoomba Hospital to the Princess Alexandra Hospital where she underwent surgery.

[27] It is not surprising that in such circumstances the filing of this Application within the 60 day time limit became a secondary consideration to other matters occurring in the affairs of the applicant. On that basis with all things considered I accept that the reason for the delay is not an unreasonable one in this case.

[28] I have described in detail above the view of the respondent regarding the applicant’s level of understanding regarding his rights under the legislation during the month of December 2010. However even on the respondent’s submission it must be conceded the applicant was taking active steps to dispute his dismissal. It is likely on perusal of the email exchanges between Ms Hunt and the applicant’s sister that the applicant had given his sister a summary of the facts regarding his termination and requested that she attempt to negotiate with the respondent a settlement regarding the dispute on his behalf.

[29] Further I have searched the FWA Case Management System which revealed that an Unfair Dismissal claim U2010/15090 was filed by Mr Kiki Lwin on Monday 13 December 2010 which was within time but outside jurisdiction for the reasons set out above.

[30] The applicant would have been made aware at some point in December that the time frame for filing a General Protections Application was 60 days and presumably that is why he did not take steps to ensure the application was filed before the end of December or in the early part of January. As discussed earlier after 11 January 2011 other events took over.

[31] I do not believe the employer will suffer any significant prejudice by the making of the application or in a delay of two days in its filing.

[32] The respondent has made the claim in its submission that the Application has no merit as the termination was not because the applicant had exercised a workplace right but because of performance issues. The applicant states in his application that he raised harassment claims in the week before his termination. The termination letter provided to the applicant dated 1 December 2010 includes the following sentence;

“Is it noted a mediation session was conducted with you on Tuesday 23 November 2010, in respect of a complaint made by you of your manager at IBM.”

[33] I have referred to this sentence only because it acknowledges that the applicant did make a complaint which was the subject of a mediation session in the week before his termination. On that basis on the material before me I cannot say that the application is completely without merit.

[34] With regard to the question of fairness between the applicant and other persons in a like position it is more likely for an extension of time to be granted in a case such as this one where the delay is so brief, although not always.

[35] On consideration of all the matters before me I am satisfied that the particular circumstances of this case which involve the applicant being personally impacted by flooding, and also having a close relative hospitalised due to the flooding constitutes exceptional circumstances taking into account the criteria set out in s.366(2). The extension is allowed and the matter will be listed for conference in the near future.

COMMISSIONER

 1   Respondent’s submission Annexure A

 2   Respondent’s submission Annexure B

 3   Respondent’s submission Annexure C

 4   Respondent’s submission Annexure D



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