Amir Mumin v DNA Empire T/A Schnitz Southland [2017] FWC 1541

1 Fair Work Act 2009 s.394—Unfair dismissal Amir Mumin v DNA Empire T/A Schnitz Southland (U2016/15206) COMMISSIONER GREGORY MELBOURNE, 16 MARCH 2017 Application for an unfair dismissal remedy. Introduction [1] Ms Amir Mumin was employed by DNA Empire T/A Schnitz Southland (“DNA Empire”) in its retail food store at the Southland shopping centre from 11 November 2015. However, he had worked at the same store location with two previous owners of the business since first being employed in November 2015. The business is one of several similar retail stores, which comprise both franchised and company owned stores. Mr Mumin worked with the business as a chef until his employment was terminated summarily on 7 April 2016. [2] Mr Mumin filed an unfair dismissal application with the Fair Work Commission (“the Commission”) on 20 December 2016. This is more than 7 months after the standard 21 day time period provided for making an application. This decision accordingly deals with whether it is appropriate to grant Mr Mumin additional time in which to make his application. [3] Mr Mumin appeared on his own behalf, with the assistance of an interpreter. Ms Rachel Gopal, of MGA Lawyers, was granted permission to appear under s.596(2)(a) as the matter involves a degree of complexity given the jurisdictional issue involved. The Issue to be Determined [4] The Fair Work Act 2009 (Cth) (“the Act”) provides at first instance that an unfair dismissal application is to be lodged within 21 days of the date of dismissal. However, s.394(3) provides that the Commission may extend the time for making application if it believes there are “exceptional circumstances” to warrant an exercise of this discretion, taking into account each of the following considerations: “(a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and [2017] FWC 1541 DECISION -- 1 of 8 -- [2017] FWC 1541 2 (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.”i [5] As indicated, Ms Mumin’s unfair dismissal application was filed more than 7 months after the expiry of the standard 21 day time period. He now seeks additional time in which to make application. The Commission is accordingly required to now determine whether there are “exceptional circumstances” existing, having regard to the considerations in s.394(3), to warrant an exercise of its discretion to grant additional time in which to make application. The Evidence and Submissions [6] Mr Mumin provided an unsigned statement and an additional outline of argument in support of his application. He subsequently indicated in his sworn evidence that these represented a true and correct statement of the facts he sought to rely on in support of the application. [7] Mr Mumin indicated that he was called to a meeting with a Manager of the store, Mr David De Araugo, on 7 April 2016. Ms Anita Aguado, who is a Director of the business, was also present. After a discussion about the relevant cooking instructions and other matters Mr Mumin was told his employment was terminated with immediate effect. [8] Mr Mumin said he left the meeting in a state of shock and went straight to the Dandenong Court to seek legal advice about his available options. However, he also then decided to call a person who he described as the original “co-founder of Schnitz,”ii who told him he would look to assist him to find work elsewhere in another store location. However, Mr Mumin said he made it clear that he would not work for the business again unless he received a letter of apology from Mr De Araugo, and this would be a necessary pre-condition to him agreeing to work at another store location. However, an apology was not forthcoming and he decided to decline any further offers of work. [9] He subsequently decided to again seek advice from the Dandenong Magistrates’ Court about his options and was referred to the legal aid office. However, while waiting for an appointment at that office a friend suggested he make contact with another law firm, which he did. He then met with a representative of the firm on 30 August 2016 and received advice in response. However, he was also told the firm could not act further on his behalf until an upfront payment was received. Mr Mumin said he was unable to pay this amount at the time and would need time to save the money. This took a further period of around 6 weeks. [10] A letter dated 14 November 2016 was then sent by the firm to DNA Empire on behalf of Mr Mumin seeking an apology and compensation. A response was received on 1 December 2016 from lawyers acting on behalf of DNA Empire denying all claims. Mr Mumin then met with the lawyer again and states that he was told at this point, for the first time, that he could make an unfair dismissal application to the Fair Work Commission. He was also told that he was late in making application, but the Commission might be prepared to extend time. He was then provided with details of the Commission’s website and phone number. -- 2 of 8 -- [2017] FWC 1541 3 [11] Mr Mumin said he was then able, with the assistance of a friend, to complete and submit an unfair dismissal application, and this was received by the Commission on 20 December 2016. He also made reference to the fact his English language skills are still developing and this impacted on his ability to understand what options might be available to him following his termination. He also highlights his limited resources, which made it difficult for him to obtain legal advice. He also denies the claims made by his former employer about intimidating other employees, and about taking food from the business. Mr Mumin also states that he immediately sought to obtain legal advice after being dismissed, but was initially persuaded by a representative from the head office of the business to defer taking any action on the basis that they would assist him by obtaining work at another store location. [12] DNA Empire submits, in response, that Mr Mumin was dismissed on the basis of serious misconduct after taking food from the store. It submits this was confirmed by CCTV footage and that he subsequently provided some acknowledgement of what had occurred in the discussions on 7 April 2016 when his employment was terminated. It now objects to the application on the basis that it was lodged more than 7 months after the 21 day time period provided for in the Act, and submits there are no “exceptional circumstances” that would justify an exercise of the Commission’s discretion to extend time in which to make application. [13] Mr De Araugo is employed as a Manager at DNA Empire and states that Mr Mumin was asked to attend a meeting on 4 April last year when he was to receive a warning about various matters, including not following required cooking procedures and intimidating other staff. However, further concerns were subsequently raised about him removing food from the store without permission and, in a meeting on 7 April 2016, Mr Mumin was dismissed on grounds of serious misconduct after making some admissions about these matters, although he also indicated that he did not believe he had done anything unlawful. [14] Mr Bill Bath is a Business Development Manager at the head office of the business. He said that Mr Mumin did contact the office by telephone, following his dismissal, to complain about what had occurred. Mr Mumin subsequently approached the Knox store and was later offered a casual position. At this time the Knox store was not aware of the circumstances of his dismissal from the Southland store. However, Mr Bath stated that Mr Mumin then failed to follow up to confirm when he would be able to commence work and the offer of work at the store lapsed. [15] DNA Empire emphasises in its submissions that it is now more than 8 months since Mr Mumin was dismissed, and highlights the prejudice that would flow if it was now required to deal with his unfair dismissal application after such an extended period of time. It submits, in conclusion, that there are no exceptional circumstances that would warrant an exercise of the discretion to grant additional time in which to make application. Consideration [16] As indicated at the outset in considering an application for an extension of time the Commission must have regard to each of the matters in s.394(3) in deciding whether “exceptional circumstances” exist to warrant an exercise of its discretion to extend time. A number of decisions of this Tribunal and its predecessors have previously considered what is required to find that “exceptional circumstances” exist to justify an extension of time. The -- 3 of 8 -- [2017] FWC 1541 4 Full Bench decision in Nulty v Blue Star Group (Nulty) was handed down in the context of a general protections application, however, the principles established in the decision have been held to be of broader application. The relevant extracts from the Full Bench decision in the context of the present application are set out at [13] and [14] in the following terms: “[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. [14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”iii [17] The decision accordingly makes clear that “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. They are also circumstances that are out of the ordinary course, unusual, special or uncommon, however, at the same time they need not be unique, unprecedented, or very rare. However, they are not circumstances that can be said to be regularly, routinely, or normally encountered. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these authorities and the matters in s.394(3) I must have regard to. (a) the reason for the delay [18] Mr Mumin makes reference to various factors in explaining the reason for the extended delay in making application. He points, firstly, to his limited English language skills which made it difficult for him to understand what options might be available to him following his dismissal. As a consequence he initially decided to go straight to the local Magistrates’ Court to seek advice. [19] However, at the same time he decided to make contact with a person who was known to him at the head office of the business to discuss what had occurred. He claims that the -- 4 of 8 -- [2017] FWC 1541 5 option of work at another store location was raised in these discussions and this caused him to delay doing anything further while this possibility was explored. [20] When this option did not materialise he was apparently advised by a friend to seek further legal advice. His evidence indicates he then met with a law firm on 30 August 2016, but was told the firm could not act on his behalf until an upfront payment was received. This caused further delay as Mr Mumin was not able to make the payment at that time. A letter was finally sent from the firm to his former employer on 14 November 2016 seeking an apology and payment for the loss incurred as a consequence of his dismissal. Correspondence was received in response in early December from lawyers acting on behalf of DNA Empire denying all claims. Mr Mumin states at this point he was told by his lawyer, for the first time, about the possibility of pursuing an unfair dismissal claim in the Fair Work Commission. With the assistance of a friend he then completed and lodged the present application on 20 December last year. [21] DNA Empire submits, in response, that Mr Mumin did make contact with another store location following his dismissal and was offered the option of casual work. However, he failed to follow up this contact and the offer was eventually not taken up. It also submits that there is nothing “exceptional” in terms of the other circumstances relied on by Mr Mumin to explain why his application was lodged more than 7 months after the required date. (b) whether the person first became aware of the dismissal after it had taken effect [22] The submissions and evidence make clear that Mr Mumin was aware of his dismissal at the time it took effect on 7 April 2016. This is not in dispute. (c) any action taken by the person to dispute the dismissal [23] Mr Mumin’s actions in disputing his dismissal have been detailed above and are not restated now. The evidence indicates that he took various steps at different times to take issue with his termination. However, it also indicates that at different times and for various reasons he changed his mind or failed to follow through with those actions until he finally lodged the present application in December last year. (d) prejudice to the employer (including prejudice caused by the delay) [24] There will inevitably be prejudice to the employer if Mr Mumin is now given additional time in which to make his unfair dismissal application in that it will have to do what is required to respond. This situation is likely to be exacerbated by the extended time that has elapsed in the present matter since Mr Mumin was dismissed in that witnesses might no longer be available, for example, and the evidence of what occurred might be more difficult to ascertain. (e) the merits of the application [25] There is a significant divergence among the parties about the respective merits of the application. Mr Mumin submits that he was a trusted and valued employee, who had been employed by the business under different owners for a significant period of time. He claims to have been totally surprised and shocked when told his employment was terminated. DNA Empire has a very different view and submits there were good reasons for Mr Mumin being -- 5 of 8 -- [2017] FWC 1541 6 summarily dismissed. In this context it refers to his aggressive behaviour towards other employees and food being removed from the store without permission. However, the Commission does not have sufficient evidence before it at this time to come to any concluded view about the respective merits of the application. [26] The relevance of the issue of “merit,” when determining an application for an extension of time has been considered in previous Commission decisions, including in the Full Bench decision in Kyvelos v Champion Socks Pty Ltd (Kyvelos) when dealing with similar legislative provisions to those now contained in the Fair Work Act 2009 (Cth). The Full Bench held: “In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.”iv [27] It concluded by stating: “It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.”v [28] As indicated, I am not in a position to form a concluded view about the respective merits of the present application. However, the decision in Kyvelos makes clear that I am not required to do so at this point. (f) fairness as between the person and other persons in a similar position [29] This consideration is of limited relevance in the circumstances of the present matter. Conclusion [30] In coming to a decision in this matter I have had regard to each of the considerations in s.394(3) that I am required to take into account. I also have some sympathy for Mr Mumin in all the circumstances of this matter. He has worked at the Southland store for just over four years with three different owners and appears to have been proud of his work as a chef, and the fact he was asked on occasions to assist new employees employed by the store for the first time. He also appears genuinely aggrieved by his dismissal, and has attempted to take various actions in response. This has not been assisted by his limited English language skills and his limited resources. He has also pursued the option of work at another store location at one point, which appears to have distracted him at the time from taking issue with the circumstances of his dismissal. [31] He has also sought advice on different occasions. It appears that he has not always been well advised at times, but on other occasions it appears he did not pursue these options to a point where appropriate advice might have been obtained. -- 6 of 8 -- [2017] FWC 1541 7 [32] Previous decisions of the Commission have made clear that there must be an acceptable reason for the delay in making application and, further, that the applicant needs to provide a credible reason for the whole of the period that the application was delayed. The decision in Nulty also makes clear that ignorance of the timeframe for lodgement is not necessarily an “exceptional circumstance.” [33] It is unfortunate that Mr Mumin eventually decided not to follow through his immediate response to his dismissal, which was to seek advice from the local Magistrates’ Court. If he had he might well have been directed to a legal aid service, who could have provided him with informed advice about his options, and the timeframe in which to pursue those options. Unfortunately, he did not do this and decided instead to contact the head office of the business, which led to some discussion about the option of work at another store location. [34] I have already made reference to various factors that can be said to have worked against Mr Mumin making application within the required time period. However, I am not satisfied that they provide a credible explanation for the extended period of delay in this case, which is more than 7 months. I am therefore unable to conclude that there are “exceptional circumstances” existing to justify an exercise of the Commission’s discretion to provide an extension of time to Mr Mumin, in which to make application. The application is accordingly dismissed. COMMISSIONER Appearances: A Mumin on his own behalf. R Gopal for the Respondent. Hearing details: 2017. Melbourne: March 10. Printed by authority of the Commonwealth Government Printer <Price code C, PR591082> -- 7 of 8 -- [2017] FWC 1541 8 i Fair Work Act 2009 (Cth) s 394(3). ii Witness statement of Applicant, received 1 March 2017, at [10]. iii [2011] FWAFB 975 at [13]-[14]. iv Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 at [14]. v Ibid. -- 8 of 8 --