Ali Maiga Akibou Ycaouba v Arch Recruitment Pty Ltd [2023] FWC 2416

1 Fair Work Act 2009 s.394—Unfair dismissal Ali Maiga Akibou Ycaouba v Arch Recruitment Pty Ltd (U2023/7139) COMMISSIONER LIM PERTH, 27 SEPTEMBER 2023 Application for an unfair dismissal remedy – jurisdictional objection - out of time [1] This decision concerns Mr Ali Maiga Akibou Ycouba’s (Applicant) application for an unfair dismissal remedy (Application) pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). [2] The Applicant’s employment with Arch Recruitment Pty Ltd (Respondent) commenced on 20 June 2022. The Applicant indicated on his Form F2 that his dismissal took effect on 19 January 2023. The Application was lodged with the Fair Work Commission (Commission) on 3 August 2023. [3] During the hearing for this matter, it was submitted by the Respondent that the employment relationship in fact ended on 16 February 2023. I accept this submission. I provide my reasons for accepting this submission in more detail below. [4] Section 394(2) of the Act provides that such an application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows. [5] Accordingly, the period of 21 days in this case ended at midnight on 9 March 2023. The Application was filed 147 days after the 21-day limit. [6] The Applicant requests the Commission grant a further period for the application to be made under s 394(3). The Respondent opposes this request. [7] The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) must be taken into account. [8] Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and accordingly there is no basis to grant an extension of time. Consequently, the Application is dismissed. [2023] FWC 2416 DECISION -- 1 of 9 -- [2023] FWC 2416 2 [9] The detailed reasons for my decision are outlined below. Observations on the evidence [10] Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was conducted on 21 September 2023 via MS Teams to determine the extension of time matter. [11] The Applicant provided a written summary of his position and gave sworn evidence. The Respondent also provided a written summary of their position and Ms Sarah Renshaw, General Manager for the Respondent, gave sworn evidence. [12] With respect, the evidence from both witnesses often lacking in detail. In particular, the Applicant had difficulty with dates and events. I have taken into account that both parties were unrepresented and were unfamiliar with Commission proceedings. [13] To the extent that the parties provided opinions on matters that are for the Commission to determine, I have treated that ‘evidence’ as submissions. Events associated with the dismissal and leading to lodgement of this application [14] The Respondent is a staffing agency that operates in the health and social care sector in Western Australia. The Respondent engages employees as ‘candidates’. These candidates are then matched up with clients who are seeking the services of a health care worker. Employees are engaged on a casual basis.1 [15] The Respondent uses a mobile app called Deputy to roster employees. Employees provide their availability through the Deputy app. The Respondent posts available shifts on the Deputy app, where employees can elect to pick up shifts. Alternatively, the Respondent may directly contact an employee to offer them shifts. [16] The Applicant signed up with the Respondent around May 2022 as a disability support worker. The Applicant attended an information session on 20 June 2022, where he received a copy of the Respondent’s Casual Employee Handbook, which sets out the Respondent’s practices and policies. The Applicant was offered his first placement in June 2022. [17] During his employment with the Respondent, the Applicant worked with several different clients. During oral evidence, the Applicant testified that over the course of his employment with the Respondent he always worked at least one shift a week and would generally work around five shifts a week. [18] In or around October 2022, the Respondent rostered the Applicant for clients at Uniting WA’s premises in Spearwood WA (Spearwood Premises). The Applicant’s evidence was that he was well-liked by the clients at the Spearwood Premises and so was regularly requested by Uniting WA from that point onwards. -- 2 of 9 -- [2023] FWC 2416 3 [19] On or around 21 December 2022, the Applicant and Ms Renshaw had a phone conversation. Ms Renshaw’s evidence was that a representative of Uniting WA had contacted her to convey concerns about the Applicant. A client had become too attached to the Applicant, to the point that the client had begun turning away other support workers (the Spearwood Client). Part of the concern was that the Applicant had provided his phone number to the Spearwood Client, which is against the Respondent’s practices. [20] Ms Renshaw’s evidence is that she conveyed these concerns to the Applicant. She also counselled the Applicant against giving out his phone number to clients and having direct phone contact with clients. Ms Renshaw informed the Applicant that Uniting WA had requested that he not be rostered on to work with them for a period of four weeks. [21] The Applicant’s evidence corroborated Ms Renshaw’s account of the phone conversation. The Applicant also gave evidence that the reason why he had given his phone number out was because the Spearwood Client had requested it. [22] For the next few weeks following the 19 December 2022 phone call, the Applicant continued to work shifts with the Respondent’s other clients. [23] On or around 17 January 2023, a representative from Uniting WA met with the Respondent with the concern that the Applicant had continued phone communications with the Spearwood Client. [24] It was the Applicant’s evidence that Ms Renshaw called the Applicant on or around 18 January 2023. The Applicant’s oral evidence was that Ms Renshaw explained to him that Uniting WA were unhappy with him and that he was no longer allowed to work with the Spearwood Client. It was unclear whether this phone call occurred before or after the Respondent’s meeting with Uniting WA. [25] On 18 January 2023, the Respondent deactivated the Applicant’s account on the Deputy app. [26] It was Ms Renshaw’s evidence that there were attempts from the Respondent to call the Applicant as they wanted to hear his version of events, but that he did not answer any calls. [27] I find that there was a phone conversation between the Applicant and Ms Renshaw around this point in time. However, it was not clear whether this occurred before or after the meeting with the representative from Uniting WA. Regardless, I find that not much turns on this point in terms of assessing the merits of the extension of time matter. [28] On 24 January 2023, Ms Kristy Holmes (Client Services Team Leader for the Respondent) wrote to Uniting WA. Her email stated: … Unfortunately, Sarah and myself had [sic] not been able to reach Ali to discuss the concerns we discussed in our meeting. -- 3 of 9 -- [2023] FWC 2416 4 A decision has been made to terminate Ali from Arch Recruitment, should he be in contact we will advise accordingly. … [29] On or around 24 January 2023, the Applicant noticed that his account on the app had been deactivated. [30] On 24 January 2023, the Applicant wrote to the Respondent asking for assistance as the app was not showing past or upcoming shifts. [31] On 25 January 2023, Client Services Team Leader Kristy Holmes wrote to the Applicant stating that the Respondent had been attempting to contact him since the week before. Ms Holmes asked the Applicant to call Ms Renshaw as soon as possible to discuss his matter further. [32] On 27 January 2023, the Applicant replied to Ms Holmes and Ms Renshaw. The Applicant asked them to ‘explain the matter through email’ and he would ‘respond clearly’. The Applicant explained that he would be travelling over Sunday or Monday. [33] On 31 January 2023, Ms Renshaw replied to the Applicant as follows: Hi Ali I hope your travels went well. I am available to discuss on the phone when you are ready. I need to speak with you and then happy to follow up on email. Thanks & have a great day. [34] On 3 February 2023, the Applicant wrote to Ms Renshaw. The Applicant asked her to email the reason why he could not access the Deputy app to view any shifts. [35] On 4 February 2023, Ms Renshaw replied to the Applicant as follows: Hi Ali, As previously stated on my emails, I would like to speak with you on the phone regarding feedback from our client so I can understand from your point of point [sic] what has happened. Your account has been suspended until we have a conversation. Thanks & have a great day. [36] There was no further contact between the parties until 1 August 2023. The Applicant sent a text message to Ms Renshaw asking that she activate his account, and that he had never received any written notification of any concerns. [37] Ms Renshaw replied that same day asking that the Applicant call her. The Applicant replied that he preferred notification in writing, and that he had been waiting since January to hear from her. -- 4 of 9 -- [2023] FWC 2416 5 [38] Ms Renshaw sent the following message: That is incorrect Ali. You have been given feedback so I’m unsure why you r asking again. I want to speak to u to see what you are unsure about then follow up in writing. Please clarify. [39] The Applicant and Ms Renshaw continued to send text messages over 3 and 6 August, where the Applicant in effect continued to request information from Ms Renshaw in writing and Ms continued to state that they could discuss the matter over the phone, after which she would send an email through. When was the Applicant dismissed? [40] During the hearing, I asked the Applicant why he had nominated 19 January 2023 as his termination date on his Form F2. He indicated that 19 January marked the day he had no shifts from the Respondent. [41] Ms Renshaw gave evidence that the Applicant was deactivated on their system on 18 January 2023. Ms Renshaw’s evidence was that the Respondent has a process where if an employee is deactivated or does not have any shifts for more than four weeks they effectively ‘drop off’ the system. That employee then must re-apply through the recruitment process to be ‘re-activated’ as an employee. This practice is also contained in the Respondent’s Casual Employee Handbook, which the Applicant received and acknowledged in writing on 20 June 2022.2 [42] Accordingly, Ms Renshaw’s submission was that the Applicant ceased to be an employee of the Respondent on 16 February 2023. I accept this submission. From the Respondent’s materials and evidence, deactivation on their system does not automatically equate to dismissal. [43] Further, from Ms Renshaw’s emails it was clear that post 19 January 2023, the Respondent had not made a final decision on the Applicant’s employment and wanted to speak with him to hear his version of events. [44] However, regardless of whether the Applicant’s employment ended on 19 January 2023 or 16 February 2023, his application is out of time by a significant margin. Should an extension of time be granted? [45] Under s 394(2) and (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. It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.3 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.4 -- 5 of 9 -- [2023] FWC 2416 6 [46] When determining whether there are exceptional circumstances, s 394(3) requires the Commission to take into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [47] Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.5 [48] I set out my consideration of each matter below. Reason for the delay [49] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 9 March 2023. The delay is the period commencing immediately after that time until 3 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.6 [50] 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.7 [51] An applicant 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 the applicant has not provided any reason for any part of the delay.8 [52] The Applicant has submitted that the reason for his delay is that he did not know that his employment had been terminated as he had not been notified of termination in writing. The Applicant submitted that without that written notification, he did not know he had been terminated. The Applicant further submitted in effect that he did not know what to do with his situation. [53] The Applicant also submitted that he did not follow up the issue of his employment or lodge an unfair dismissal application in between the last email from Ms Renshaw on 4 February 2023 and 3 August 2023 because he was in Bunbury, Western Australia. The Applicant did not provide any reason why being in Bunbury had impeded him from filing the Application earlier. -- 6 of 9 -- [2023] FWC 2416 7 [54] I asked the Applicant if there was anything in August 2023 that prompted him to lodge his unfair dismissal application. The Applicant reiterated that he had been waiting for the Respondent to get back to him in writing. [55] I find that this is not a satisfactory explanation for the following reasons: • The Applicant acknowledged that he did not have any rostered shifts from 19 January 2023 onwards. Up until that point he had regularly received shifts every week. • As evidenced by his email to the Respondent on 24 January 2023, Applicant knew that there was something wrong with his account on the Deputy app. • Ms Holmes and Ms Renshaw sent him several emails asking him to contact Ms Renshaw. • Ms Renshaw’s email on 4 February 2023 explicitly stated, ‘Your account has been suspended until we have a conversation’. • The Applicant then had no shifts or contact from the Respondent for six months. [56] Accordingly, I consider that the Applicant has not provided a satisfactory explanation for the majority of the period of the delay in making the unfair dismissal. This is a factor that weighs against a finding of exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect. [57] As outlined above, the main substance of the Applicant’s argument is that he was not aware of the dismissal. [58] It was not disputed between the parties that the Respondent did not send a formal termination letter or otherwise officially notify the Applicant that his employment had been terminated. [59] This is a factor that weighs in favour of a finding of exceptional circumstances. Action taken to dispute the dismissal [60] The Applicant did message Ms Renshaw in the first week of August 2023 to ask that his account be reactivated. However, to the extent that this could be considered action taken to dispute the dismissal, the fact is that this occurred six months after he initially became aware he had been deactivated. This factor is not conducive to a finding of exceptional circumstances. Prejudice to the employer (including prejudice caused by the delay) [61] Neither side advanced arguments on this point. The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. This is a neutral factor in this case. -- 7 of 9 -- [2023] FWC 2416 8 Merits of the application [62] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.9 Further, the primary consideration is whether the Applicant has an arguable case.10 [63] The Applicant’s position in his Form F2 is effectively there was no valid reason for his dismissal. Neither party articulated submissions on the merits of the substantive unfair dismissal application at the hearing. [64] I find that this is a neutral factor in assessing whether there are exceptional circumstances. Fairness as between the Applicant and other persons in a similar position [65] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances. Conclusion [66] I have found that the considerations in s 394(3) of the Act are mostly of neutral significance in this matter. The exceptions are s 394(3)(a) and (b). [67] Though it was not contested that the Respondent did not formally notify the Applicant of his dismissal, I find that this consideration is outweighed by the significant length of the delay. [68] Having considered all the circumstances of this matter and the factors in s 394(3), I am not satisfied that there are exceptional circumstances. [69] As the Application was lodged beyond the initial period provided by s 394(2)(a) of the Act and an extension of time has not been granted, there is not a valid application before the Commission. [70] On that basis it is appropriate to dismiss the Application and an Order11 to this effect will be issued with this Decision. -- 8 of 9 -- [2023] FWC 2416 9 COMMISSIONER Appearances: A Ycaouba, Applicant S Renshaw for the Respondent Hearing details: 2023. Perth (via Microsoft Teams) 21 September 2023 Printed by authority of the Commonwealth Government Printer <PR766384> 1 Digital Court Book, Arch Recruitment Casual Employee Handbook, p. 34. 2 Digital Courtbook, p. 9. 3 Nulty v Blue Star Group Ltd [2011] FWAFB 975 at [13]. 4 Ibid. 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 6 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 8 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40]. 9 Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14. 10 See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34]. 11 PR766385 -- 9 of 9 --