Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application lodged out of time - application dismissed.

• [1] Mr Myrjun Hiso (the Applicant) lodged a s.394 application under the Fair Work Act 2009 (the Act) for unfair dismissal remedy in relation to the termination of his employment with Somerville Retail Services Pty Ltd (Somerville or the Respondent).

• [2] Mr Hiso was employed by Somerville on 15 January 2020, and in July 2023 he suffered an injury in a motor vehicle accident. The injury sustained was not related to work and the TAC insurance scheme was enlivened to cover weekly payments and medical expenses. Mr Hiso did not return to work in any capacity because of his injuries and Somerville administered the payments as required by TAC. However, in December 2023 a vocational assessment[1] determined that there was scope for a gradual return to work. A return-to-work plan was developed consistent with medical advice for Somerville to provide 9 hours of work per week comprising 3 x 3-hour shifts with the intention of a gradual return. Mr Hiso performed 9 shifts between 12 January and 2 February 2024 then resumed his absence from work.

• [3] In February Mr Hiso stated that the pain he endured prevented any capacity to perform his duties. He also vocalised concerns about his weekly payments which dropped to reflect the hours he worked. He says this drop in weekly payments placed him in a position of serious financial hardship and importantly, he was unable to make his child support payments.

• [4] Mr Hiso submits that he was dismissed, but also says Somerville did not accept his withdrawal of resignation in February 2024. Somerville says that Mr Hiso resigned, and that it did not receive an alleged request to withdraw the resignation. This application was made on 29 September 2024.

• [5] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 11 March 2024 based on the resignation which was accepted on 19 February 2024. The application was therefore filed 202 days outside the 21-day period. Mr Hiso asks the Commission to grant a further period for the application to be made under s 394(3). Somerville opposes an extension.

• [6] Mr Hiso was self-represented, and the Respondent was represented by Mr Broadbent of CJB Law at the hearing on 7 November 2024.

• [7] On 20 October 2024, Mr Hiso further filed an unlawful dismissal application. It was explained to him that an unlawful dismissal application cannot be made where a general protection application can be made. Mr Hiso expressed his desire to claim general protection because he was dismissed due to his injury. I informed Mr Hiso that two dismissal applications cannot be made simultaneously. He understood this but could not decide which application is best to pursue. On this basis this decision only concerns his unfair dismissal extension of time application.

• [8] The Act allows for an extension of time if the Commission is satisfied that there are exceptional circumstances. 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.[2] 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.[3]

• [9] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the following must be taken into account:

(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);

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

• [10] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

• [11] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any 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 of the circumstances must be considered.[4]

• [12] Mr Hiso says he was unaware of his rights and while he had access to a lawyer that was referred to him from TAC in mid-2023, he received no legal assistance in the TAC claim, income protection insurance/superannuation benefits or any applications made in this Commission. He also says that his application was late because he made attempts for Somerville to accept the withdrawal of his resignation.

• [13] Mr Hiso provides insufficient explanation for the delay of 202 days which is a significant period. The explanation must be credible. And ignorance of the statutory time limit is not an exceptional circumstance.[5]

• [14] Mr Hiso says he was unaware of his rights. Ignorance is not an acceptable reason. I do further observe that Mr Hiso's first language is not English; he was offered an interpreter, and he declined. He confirmed his understanding of the matters discussed at hearing and his statements were clear.

• [15] Mr Broadbent for Somerville surmises that the driving issue for the application was Mr Hiso's inability to access salary continuance, perhaps because of the resignation. Having considered Mr Hiso's submissions, he explained carefully that the pain from his injury prevented his return to work even on the graduated plan. Further the graduated plan caused severe financial challenges for him and then with the termination of employment, all entitlements to TAC, superannuation and insurance were inaccessible. Having exhausted his options, Mr Hiso most likely made this application in the hope of altering the termination of employment to enable access to payments. Mr Hiso says in his written and oral submissions that he seeks as the desired outcome, access to his benefits.[6]

• [16] Mr Hiso did not directly reason the delay was because of his failed attempts to access benefits, but it is probable on the material before me that this is most likely the reason. In any event, a delay of 202 days is significant and the explanations offered do not weigh in favour of an extension. The reasons provided fail to credibly explain the delay.

Whether the person first became aware of the dismissal after it had taken effect

• [17] Mr Hiso was aware of the date of termination; his evidence was that to access his annual leave accruals he resigned on 16 February 2024.[7] He says he requested the withdrawal of his resignation within 1-2 days. On his application he identifies the termination took effect on 20 January (this date was later corrected to 19 February 2024).[8] This means that Mr Hiso had the full benefit of the 21 days to file his application. Consequently, this consideration does not fall in Mr Hiso's favour for an extension.

• [18] Somerville contend that Mr Hiso did not take steps to dispute the termination of employment other than make inquiries regarding his payment of annual leave and final pay entitlements. Mr Hiso says that within 1-2 days he requested a withdrawal of his resignation and subsequently appealed to Somerville again multiple times until he was warned that his "harassment" would be reported to the police. Somerville dispute that a request to withdraw the resignation was made and there is no additional evidence to substantiate Mr Hiso's statements. A letter was tendered by Mr Hiso,[9] but there is no evidence that this letter was received by Somerville or sent. Further Ms Lacey the Payroll and Administration Officer submitted a witness statement in which she says that she did not receive a request to withdraw the resignation nor found any evidence of receipt of a letter as alleged.

• [19] I am satisfied that Mr Hiso communicated with Somerville requesting withdrawal of the resignation but was advised that the resignation was accepted. It is reasonable to deduce from the evidence that the resignation impacted the payment of TAC payments or other related financial benefits, and this was the reason Mr Hiso sought its withdrawal. Based on the numerous communications both via email and by telephone Mr Hiso persisted and was unlikely to accept the termination of employment. I am satisfied that Somerville were on notice that even though Mr Hiso says he had no capacity to work and did not indicate that he would make an unfair dismissal application, an application of sorts was nevertheless probable. For this reason, I find that Mr Hiso partially met this requirement.

• [20] Somerville contend that due to the lengthy delay in filing, it has the effect of creating prejudice. No evidence of prejudice is before the Commission, instead the submission identifies the prolonged period in this matter. I accept that a delay of 202 days causes inconvenience and requires the effort to respond to the extension of time proceedings, but prejudice must be more. It relates to prejudice that would not have been suffered had the application been made within the 21-day limit.[10] I observe that the Group Hr Manager and the Payroll and Administration Officer are still employed by Somerville. Therefore, I find no prejudice. But an absence of prejudice is a neutral consideration in supporting an extension of time.

• [21] Mr Hiso submits that he resigned on 16 February 2024 and tendered his letter of resignation.[11] In the letter Mr Hiso says his injury is the reason for his inability to perform the responsibilities of the role. While Mr Hiso had advised that he resigned on 16 February[12] it is most likely to have occurred on Saturday 17 February given the email exchanges of the same day. On 17 February the emails between Mr Hiso and the Group HR Manager concern his request to have his accrued annual leave paid into child support which Somerville confirms would be paid on receipt of a resignation letter if submitted by Mr Hiso.[13]

• [22] Somerville submit that the resignation was received on 17 February 2024 and on Monday 19 February the resignation was accepted and accrued leave entitlements were paid out together with an Employment Separation Certificate.[14] Somerville submit that discussions with Mr Hiso concerned his belief that he was entitled to payment for 38 hours per week despite his TAC claim determining that he had limited capacity to work. This understanding is reflected in emails between 31 January and 12 February 2023 and post resignation.[15]

• [23] On 31 January 2024 Mr Hiso requested a "separation certificate of termination" in email to the Payroll and Administration Officer. This prompted further communication where it became clear that Mr Hiso assumed the working arrangement of 9 hours per week was new employment and his 38-hour week contract was terminated. He further states that his absence from work for 6 months requires that Somerville terminate his employment.[16] Mr Hiso was informed that the 9-hour week arrangement was a return-to-work plan and Somerville had no intention of dismissing him. In that same discussion Mr Hiso was informed that should he decide to resign and wish to return some time in the future he would need to apply for employment.[17]

• [24] On 12 February Mr Hiso emailed Somerville advising his absence from work ought to be treated as either sick leave or annual leave. But further email correspondence shows an expectation of payment of 38 hours of TAC payments due to his inability to perform the duties as reflected in his contract of employment dated 2020.[18]

• [25] Mr Hiso made submissions regarding the pain that he suffers in his pelvis and back that prevents any capacity to work. He tendered a medical report dated 4 April 2024 in support of a permanent disablement claim which diagnosed an inability to perform any duties because of pain in both hips.[19]

• [26] In July 2024 emails between Somerville and Mr Hiso show that he sought to have his insurance company informed that he was dismissed. Somerville advised him that that is incorrect. Mr Hiso asserts that ".... You terminated me im not resignation I cancelled it but miles didn't accept my cancellation."[20]

• [27] It is clear from the evidence that Mr Hiso maintains he has no capacity to perform any duties because of his injury and this application is intended to overturn the resignation to reflect a termination at the initiative of the employer to aid his access to financial benefits. All along since an assessment in November, that Mr Hiso had limited capacity to return to work, his concerns centred around the weekly payments and the impact of the reduction in meeting his child support payments.

• [28] I do not find any evidence of ambiguity in the resignation, nor is there any evidence of a resignation in the heat of the moment. There is no evidence that the resignation was not intended. Somerville accepted the resignation on 19 February 2024, and this cannot be construed as a termination at the initiative of the employer.

• [29] While it is unfortunate that Mr Hiso sustained a motor vehicle injury and his pain prevents his return to work, his resignation was accepted, and Somerville was not obliged to accept his alleged withdrawal. It is further unfortunate for Mr Hiso that it became evident to him at a later time that his resignation may have been a cause for his inaccessibility for financial benefits.

• [30] The merits of this matter have not been fully assessed, although on the substantive evidence before me it is apparent that Mr Hiso would likely have no reasonable prospect of success in his unfair dismissal application. Consequently, I cannot find the consideration of merit in favour of an extension of time.

Fairness as between the person and other persons in a similar position

• [31] Neither party addressed this issue, and I find therefore it is neutral in my consideration of the application

• [32] Having considered the material before the Commission against the requirements of s.394(3) of the Act I am not satisfied of exceptional circumstances for an extension of time. Of the matters I need to take into account, action taken to dispute the dismissal partially favoured Mr Hiso's application. Prejudice and fairness were neutral considerations, and the balance did not weigh in support of an extension. Therefore, as I find no exceptional circumstances to warrant an extension, the application is dismissed.

[1] Prepared by the certifying physiotherapist and rehabilitation consultant (and not including the treating GP), further amended on 11 December 2024, Digital Hearing Book ('DHB') pp. 36 - 55; Witness Statement of Ms Danielle Lacey, Attachment 1, DHB pp. 166-176.

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

[6] Applicant's Form F2 at 3.1, DHB pp. 3-9.

[7] Letter of resignation dated 19 February 2024, DHB p.20.

[8] The Respondent accepted the resignation and the Employment Separation Certificate confirmed the date that employment ceased was on 19 February 2024, DHB p.8-9, 189-191; Witness Statement of Ms Danielle Lacey, Attachments 1-6, DHB p.166-196.

[9] Letter of withdrawal of resignation dated 18 February 2024, DHB p.7.

[10] Clarke v Service to Youth Council Inc [2013] FCA 1018, [31].

[11] Letter of resignation dated 19 February 2024, DHB p.20.

[12] Applicant's Form F2 [3.1], DHB p. 3-9.

[13] Emails of Saturday 17 February, DHB p. 18.

[14] Applicant's Form F2; Respondent's Submissions, DHB p.155-161; Witness Statement of Ms Danielle Lacey, DHB p.162-165.

[15] Respondent's Submissions, DHB p.155, [7]; Witness Statement of Ms Danielle Lacey, Attachment 2, DHB p.177-180.

[16] Email of 31 January 2024 at 10.15am from Mr Hiso to Ms Lacey, Witness Statement of Ms Danielle Lacey, Attachment 2, DHB p.177-180.

[17] Witness Statement of Ms Danielle Lacey, Attachment 2, DHB p.179.

[18] Ibid, Attachment 2 and 3, DHB p.177-185.

[19] Medical Attendant's statement prepared by Mr Hiso's general practitioner dated 4 April 2024 forming part of the total and permanent disablement claim form, DHB p. 23-26.

[20] Witness Statement of Ms Danielle Lacey, DHB p.162-165; Witness Statement of Ms Danielle Lacey, Attachment 6, DHB p.192-196.

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