Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application filed out of time - health issues - limited English skills - video footage not provided - cumulative factors marginally establish exceptional circumstances - extension of time granted.

• [1] ABC Tissue Products Pty Ltd (ABC Tissue) manufactures toilet tissue, facial tissue, paper towels, and napkins. Jamie Ngoc Tran (Mr Tran) worked for ABC Tissue as a machine operator from 15 October 2007 until his summary dismissal for serious misconduct on 30 July 2024. ABC Tissue alleges Mr Tran punched another employee at work on 29 July 2024. Mr Tran filed an unfair dismissal application with the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) on 11 September 2024. Mr Tran's application was filed 22 days after the 21-day filing period for an unfair dismissal application had ended. As a result, Mr Tran needs an extension of time to file his application. This decision concerns whether I should grant Mr Tran an extension of time pursuant to s.394(3) of the FW Act.

• [2] I issued directions for the filing of material and listed a determinative conference/hearing regarding whether an extension of time should be granted on 1 November 2024 via video. I granted permission for Mr Tran to be represented by Monique Tran from Greenfield Lawyers at the determinative conference/hearing. This was not opposed by ABC Tissue. I was satisfied granting permission would enable the matter to be dealt with more efficiently. ABC Tissue was represented by Ninos Khoshaba (Assistant General Manager and Group People and Culture Manager) and Paul Johnson (Group WHS Manager). A Vietnamese interpreter was arranged by the Commission to assist Mr Tran during the determinative conference/hearing. At the start of the proceeding, I indicated my provisional view was that it was appropriate to conduct a less formal determinative conference instead of a hearing. The parties agreed to this course of action. I conducted a determinative conference.

• [3] Mr Tran provided a statutory declaration dated 10 September 2024. Ms Tran speaks Vietnamese and assisted Mr Tran to prepare the declaration in English. The statutory declaration sets out Mr Tran's version of the relevant events. Mr Tran says another employee was repeatedly trying to steal money from his wallet at around 7pm on 29 July 2024. Mr Tran told the employee to leave him alone. When the employee refused to leave, Mr Tran pushed him away. Mr Tran denied punching the other employee. Mr Tran claims he was pressured into signing a translated statement by Mr Khoshaba on 30 July 2024 via a threat of involving the police. Mr Tran gives evidence about the process implemented in terminating his employment. Mr Tran refers to having a mental breakdown after the dismissal. Mr Tran states he was reluctant to speak with a lawyer after his dismissal due to the stress of being involved in a proceeding about an Apprehended Violence Order in 2023.

• [4] The following documents were attached to Mr Tran's declaration:

• A Mental Health Plan prepared by Dr Patrick Teh for Mr Tran on 10 September 2024. The plan identifies the "problem" as "major depressive disorder." Dr Teh referred Mr Tran for treatment by a psychologist.

• A certificate of capacity issued by Dr Teh to Mr Tran. The certificate states Mr Tran sustained a back injury at work on 15 April 2024 and states Mr Tran is only fit for light duties from 29 July 2024 to 9 August 2024.

• A referral letter from Dr Teh concerning diabetes eye care for Mr Tran dated 23 November 2023. The letter includes Mr Tran's medical history.

• Mr Tran's termination letter dated 30 July 2024.

• A final warning letter issued to Mr Tran on 20 June 2024 for using his mobile phone during work time.

• A handwritten statement signed by Mr Tran on 30 July 2024, which contains his account of events on 29 July 2024. The statement was provided to ABC Tissue prior to Mr Tran's dismissal. Mr Tran admits pushing the other employee after he was seeking to "borrow $200." Mr Tran states he also queried the other employee about why he reported to Mr Khoshaba that Mr Tran had kicked a fridge. Mr Tran denies hitting the other employee and states "please ask Neno to check it."

• A letter from Patrick Pham (Clinical Psychologist) to Dr Teh dated 30 September 2024. Mr Pham's letter states Mr Tran "presents with major depressive disorder" with symptoms of poor appetite, disrupted sleep, rumination, irritability, poor motivation, and poor concentration. Mr Pham indicates medication would likely benefit Mr Tran.

• A medical certificate from Dr Teh dated 23 October 2024 which confirms Mr Tran has "profound hearing loss."

• [5] I marked Mr Tran's declaration and the attached documents as Exhibit A1.

• [6] Mr Tran was cross-examined on his evidence during the determinative conference. This was a difficult process given Mr Tran's hearing issues and the involvement of an interpreter. Mr Tran's evidence was somewhat hard to follow given these issues. Mr Tran maintained that he did not hit the other employee on 29 July 2024 and denied Mr Khoshaba's suggestion that he had instigated the incident by approaching the other employee.

• [7] Mr Tran also relied on written submissions dated 8 October 2024 and 30 October 2024. Ms Tran also made oral closing submissions at the end of the hearing.

• [8] ABC Tissue relied on an outline of submissions dated 15 October 2024 which addressed the criteria in s.393(3) of the FW Act and explained why an extension of time should not be granted to Mr Tran. ABC Tissue also filed an email from Mr Khoshaba dated 16 October 2024 which addressed a recent Full Bench decision in Sahil Verma v Coles Supermarkets Australia Pty Ltd [2024] FWCFB 395 (Verna v Coles). Mr Khoshaba argued the facts in Verna v Coles were similar to the facts in this case. An extension of time was not granted in Verna v Coles, and permission to appeal the decision was not granted by the Full Bench.

• [9] Mr Khoshaba provided oral submissions at the end of the determinative conference. During the submissions, Mr Khoshaba confirmed ABC Tissue has video footage from 29 July 2024 which allegedly shows Mr Tran punching the other employee. Mr Khoshaba confirmed that the footage had not been provided to Mr Tran or the Commission, but ABC Tissue will rely on the footage if an extension of time is granted to Mr Tran.

• [10] Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

• [11] Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether Mr Tran first became aware of the dismissal after it had taken effect; and

(c) any action taken by Mr Tran to dispute the dismissal; and

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

(f) fairness as between Mr Tran and other persons in a similar position.

• [12] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

Consideration - should an extension of time be granted?

• [13] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 20 August 2024. The delay is the period commencing immediately after that time until 11 September 2024, although circumstances arising prior to that period may be relevant to the reason for the delay.[2]

• [14] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3]

• [15] Mr Tran does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Tran has not provided any reason for any part of the delay.[4]

• [16] Mr Tran provided the following reasons for the delay in filing his application:

1. Ignorance of the time limit.
2. Being surprised, devastated, and depressed after the dismissal.
3. Being deaf in both ears, which caused Mr Tran to feel isolated after his dismissal.
4. Being afraid of being involved in a court case.

• [17] As Mr Khoshaba submitted, it is well established that ignorance is not a satisfactory explanation for filing an application late.[5]

• [18] I do not accept fear of being involved a court case provides a sufficient explanation for the delay. This is a common emotion and could not be described as an exceptional circumstance.

• [19] In relation to the impact of being dismissed, the stress or distress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[6] Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[7]

• [20] The evidence indicates Mr Tran sought legal advice from Ms Tran on 9 September 2024 and attended a medical appointment with Dr Teh the next day where he was issued with a mental health care plan due to "major depressive disorder." This evidence is certainly relevant, but it does not necessarily confirm that Mr Tran was suffering from depression throughout the period between his dismissal on 30 July 2024 and the filing of his unfair dismissal application on 11 September 2024.

• [21] Although I accept Mr Tran clearly has hearing issues, I am not satisfied the hearing issues provide a sufficient explanation for the delay in the filing of his unfair dismissal application. I do not accept the evidence establishes Mr Tran was unable to use hearing aids after he was dismissed because he could not afford to maintain them, as submitted by Ms Tran. That explanation sounds somewhat unlikely. I am not prepared to accept the submission given the lack of supporting evidence.

• [22] After considering all the evidence and submissions, I find that the reason for the delay weighs marginally in favour of a finding of exceptional circumstances and the granting of an extension of time to Mr Tran. I am swayed by the medical evidence concerning Mr Tran's mental health condition. I consider it is likely, although not clear, based on the medical evidence that Mr Tran was experiencing significant depression during the period between his dismissal on 30 July 2024 and when his unfair dismissal application was filed on 11 September 2024.

Did Mr Tran first become aware of the dismissal after it had taken effect?

• [23] Mr Tran accepted he became aware of the dismissal on the day it took effect, 30 July 2024. I consider this to be a neutral factor.

What action was taken by Mr Tran to dispute the dismissal?

• [24] Mr Tran accepted he did not take any action to dispute his dismissal after it took effect on 30 July 2024 prior to consulting a law firm on 9 September 2024 and then filing the unfair dismissal application on 11 September 2024. I consider this a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [25] ABC Tissue argued it would be prejudiced if an extension of time is granted because it could have retained additional video footage if it was aware Mr Tran was disputing his dismissal within the 21-day filing period. Given Mr Khoshaba stated ABC Tissue has footage showing Mr Tran punching another employee on 29 July 2024, and this was the reason for Mr Tran's summary dismissal, it is not readily apparent what further footage would be required. I find prejudice to be a neutral factor.

• [26] It is well established that "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)", or in this case, s.394(3)(e).[8]

• [27] Mr Khoshaba indicated during closing submissions that ABC Tissue had made a conscious decision not to file the footage which allegedly shows Mr Tran punching another employee. The reason for that decision seemed to be either as part of ABC Tissue's legal strategy or to not cause further distress for Mr Tran.

• [28] Given ABC Tissue has not provided any evidence to establish that Mr Tran punched another employee on 29 July 2024, I cannot conclude that Mr Tran's case has no prospects of success. I also consider Mr Tran's length of service and personal circumstances (his age, health issues, and limited English skills) may weigh in favour of a finding that his dismissal was harsh.

• [29] I find the merits of the application to be a neutral factor.

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

• [30] Neither party made any persuasive submissions directed at this factor. I consider this factor is neutral.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [31] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [32] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[9] Exceptional circumstances may 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.[10] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension.[11]

• [33] Having regard to all of the matters at s.394(3) of the FW Act, I am marginally satisfied that there are exceptional circumstances.

• [34] I do not consider there is a single exceptional circumstance in this case.

• [35] I am satisfied there are a combination of factors in this case that taken together can be considered exceptional. The factors I am referring to are:

• Mr Tran struggles to hear and has limited English skills.

• I consider it is unusual and rare for an employee with the personal circumstances of Mr Tran to lose a job they have held for over 17 years on the basis of video footage that they have not seen.

• [36] Although there are some similarities between the facts in Verna v Coles and the facts in this case, there are also differences. Each case ultimately turns on its own facts.

• [37] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

• [38] Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[12] I am satisfied that it is appropriate to extend the period for the application to be made to 11 September 2024.

• [39] The application will proceed to be dealt with in accordance with the Commission's normal processes.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] ('Stogiannidis').

[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[3] Stogiannidis Ltd [2018] FWCFB 901, [39].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, [14].

[6] Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].

[7] Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [22].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[11] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21].

[12] Fair Work Act 2009 (Cth) s 577.

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