DECISION

Fair Work Act 2009
s.365—General protections

Austine Umudu
v
Veolia Water Operations Pty Limited T/A Veolia Australia and new Zealand Group
(C2019/3092)

Application to deal with contraventions involving dismissal - extension of time.

[1] This decision concerns an application by Mr Austine Umudu under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] The date that Mr Umudu’s employment ended was 10 April 2019. His application was not lodged until 15 May 2019. The period of 21 days ended at midnight on 1 May 2019 and the application was therefore lodged 14 days out of time. Mr Umudu seeks that the Commission allow a further period of time for the application to be made. The Respondent company opposes the grant of an extension of time.

[3] On 4 July 2019 I conducted the proceeding by way of determinative conference. Mr Umudu appeared on his own behalf and gave evidence. Ms Stone and Ms Withey appeared on behalf of, and gave evidence for, the company.

Background

[4] Mr Umudu commenced employment with the company on 15 October 2018, in the position of Management of Change Engineer. His employment was terminated on 10 April 2019. Mr Umudu is Nigerian.

[5] In his Application, Mr Umudu says that the company exerted undue pressure on him to agree to the deduction of amounts from his final payments in breach of section 344 of the Act and took adverse action against him on the basis of his race and colour in breach of section 351 of the Act. 1 However, at the determinative conference Mr Umudu conceded that no amounts had been improperly deducted from his final payments and accordingly, he no longer pressed this ground. The company says that Mr Umudu’s employment was terminated solely for poor performance and failing to meet the expectations of his role during the qualifying period of his employment.2 The company says it provided Mr Umudu with formal feedback regarding his performance and expectations on 19 February 2019, 21 March 2019 and 28 March 2019.3 His employment was subsequently terminated on 10 April 2019. The company denies that it has acted in contravention of Part 3-1 of the Act.

Consideration

[6] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 4

[7] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty), 5 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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.6

[8] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.”

Reason for the delay

[9] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 7 or a reasonable explanation.8 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd the Full Bench noted that the absence of an 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 the circumstances must be considered.9 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.10

[10] In his Outline of Argument 11 Mr Umudu states that he was unaware of his rights upon termination, that he was in shock and became unwell with the flu, and stress arising from his dismissal.12 He says further that he sought advice from GTC Lawyers on 21 April 2019 as to his rights and was advised that he was not able to make a claim due to his employment being terminated during his probationary period. He then says that following an issue arising with the company regarding his final payments, he contacted the Commission, which referred him to JobWatch. Through JobWatch he says he was made aware of his rights to make a general protections application, following which he did so. He also says that he sought internal review of his dismissal and that delayed his “plans”.13

[11] Accordingly, on the material filed it appears that the reasons advanced by Mr Umudu for the delay in lodging his application are manifold and are that he:

•  was unaware of his rights to challenge his dismissal;

•  was in shock;

•  was unwell with flu;

•  sought internal review of the decision to dismiss him; and

•  was not advised by GTC lawyers of his right to lodge a general protections claim.

[12] However, at the determinative conference, Mr Umudu’s evidence was that the reasons for the delay were his lack of awareness of his rights and the alleged failure of his legal adviser from GTC Lawyers to advise him as to his rights to lodge a general protections claim. His evidence is that he attended a consultation with GCT Lawyers on 21 April 2019, 11 days after his dismissal. 14 Further, Mr Umudu’s evidence is that he paid funds into trust in advance of that consultation on 16 April 2019. This is six days after his termination. In these circumstances, it is difficult to see how it can be said that Mr Umudu was unaware of his rights to challenge his dismissal or was so unwell and in shock as to establish an adequate explanation for the delay in lodgment. He was clearly able to seek and obtain legal advice in relation to his dismissal, well within the 21 day time frame for lodgment. In addition, Mr Umudu provided no medical evidence to support his assertion that he was in shock or unwell with the flu and, indeed, did not rely upon these matters at the determinative conference.

[13] Mr Umudu gave further evidence at the determinative conference that he was unaware of his right to make a general protections claim or the time frames which applied to such applications and was not advised of this by GTC Lawyers. He says he only became aware of these matters after he contacted JobWatch. His evidence as to when he contacted JobWatch was somewhat contradictory. Ultimately, however, his evidence at the determinative conference was that he did not know the date when this had occurred. Accordingly, given this, it can not be that this could establish an adequate explanation for the delay. Further, irrespective of when he contacted JobWatch, ignorance of the timeframes that apply to an application is not an exceptional circumstance. 15

[14] As to the issue of “internal review”, Mr Umudu gave evidence that on 17 April 2019 he wrote to the company, by email, seeking that his termination be rescinded and that he be allowed to resign from his employment. He also raised certain issues regarding his final payments. This he says is the internal review request. The company’s evidence is that Ms Stone responded to Mr Umudu’s email on 23 April 2019, refusing his request that he be allowed to resign and providing clarification as to his final payments. At the determinative conference Mr Umudu accepted that this was the case. Accordingly, Mr Umudu knew the outcome of his request for “internal review” on 23 April 2019, at least seven days before the time for lodgment expired. As such, this also does not establish an acceptable explanation for the delay.

[15] In my opinion, in light of all of the above matters, Mr Umudu has not established an acceptable or reasonable explanation for the delay in lodging the application. This weighs against the grant of an extension of time.

Action taken by the person to dispute the dismissal

[16] Mr Umudu’s employment was terminated in a meeting on 10 April 2019. It is agreed that at this meeting the company advised him of the deficiencies in his performance and that consequently his employment was terminated. Mr Umudu says he contested the performance issues raised in the meeting and disputed his termination. The company says that Mr Umudu did not agree with all of the performance issues raised but that Mr Umudu did not dispute his dismissal. I accept that Mr Umudu did contest at least some of the performance issues identified by the company and as such he did dispute his dismissal. This weighs in favour of granting an extension of time.

Prejudice to the employer

[17] I cannot identify any particular prejudice that would accrue to the employer were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[18] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[19] As set out above, at the determinative conference Mr Umudu abandoned his claim in relation to section 344 of the Act and relied solely on his claims in relation to section 351.

[20] Section 351 provides, relevantly, that an employer must not take adverse action against an employee because of the employee’s race or colour. At the determinative conference, Mr Umudu’s evidence was that the company had taken adverse action against him by denying him training and tools required to adequately perform his role and by changing and expanding his job responsibilities. He asserted that the reason for this adverse action was his race or colour. At the determinative conference, Mr Umudu did not submit that adverse action, in the form of dismissal, was taken against him because of his race and colour, such as to establish a claim under section 365 of the Act. I note though that such a claim is alluded to in the material filed by Mr Umudu 16 and for present purposes I am prepared to proceed on the basis that Mr Umudu also seeks to claim that adverse action, in the form of dismissal, was taken against him because of his race or colour.

[21] In his material Mr Umudu simply asserts that it ought be concluded that the alleged adverse action was taken against him because of his race or colour because he is the only person of colour at his work site. 17 On the basis of the material before me, it is difficult to see how this claim could be established.

[22] The company denies that Mr Umudu was denied training or tools necessary to perform his role and that his job responsibilities were expanded. It says that Mr Umudu’s employment was terminated solely for failing to meet the expectations of his role and point to the formal meetings regarding his performance on 19 February 2019, 21 March 2019 and 28 March 2019.

[23] On the material before me, Mr Umudu’s claims appear to be weak, at best. However, Mr Umudu is unrepresented and it may be that he is able to develop these claims with the assistance of Counsel should this matter proceed further. Given the interlocutory nature of these proceedings, I am prepared to consider the merits to be a neutral factor.

Fairness as between the person and another person in a like position

[24] Applications to extend time generally turn on their own facts. Mr Umudu did not draw my attention to any persons or cases that would be relevant to the question of fairness as between him and other persons in a like position. The company referred me to the decision of Ballarat Truck Centre v Kerr [2011] FWAFB 5645. I do not consider that case to provide any particular assistance in this matter. Accordingly, I find the question of fairness between Mr Umudu and other persons a like position to be a neutral factor.

Conclusion

[25] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[26] Having regard to all of the matters that I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. Aside from Mr Umudu having taken steps to contest the dismissal, none of the factors in section 366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[27] I decline to grant an extension of time under section 366(2). Accordingly, Mr Umudu’s application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

A Umudu on his own behalf

K Stone and G Withey for the Respondent

Hearing details:

2019.

Melbourne:

4 July 2019

Final written submissions:

For the Applicant: 10 July 2019

For the Respondent: 12 July 2019

Printed by authority of the Commonwealth Government Printer

<PR710285>

 1   Exhibit A1, question 3.3

 2   Exhibit R1, question 2.2

 3   Exhibit R4, Exhibit R6 and Exhibit R7

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [14]

 5   [2011] FWAFB 975

 6   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

 7   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, per Gostencnik DP at [9]

 8   Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]

 9   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39]

 10   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 11   Exhibit A2

 12   Exhibit A2, question 1d

 13   Exhibit A12, paragraph 4

 14   Exhibit A2, question 1d

 15   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 16   Exhibits A1, question 3.1; Exhibit A2, question 1h paragraph 12; Exhibit A12, paragraph 7 and 26

 17   Exhibit A2, question 1h final paragraph; Exhibit A12, paragraph 7