1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Luke Tamu
v
Australia for UNHCR
(C2018/1901)
COMMISSIONER SPENCER BRISBANE, 4 JANUARY 2019
Application to deal with contraventions involving dismissal – jurisdictional objection –
application filed out of time.
INTRODUCTION
[1] An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Mr
Luke Tamu (the Applicant) alleging that the termination of his employment from Australia for
UNHCR (United Nations High Commissioner for Refugees) (the Respondent) was in
contravention of the general protections provisions. The Applicant commenced casual
employment as a Fundraiser with the Respondent on 29 November 2017. Australia for
UNHCR is a member of the Public Fundraising Regulation Association (PFRA). It was
submitted that the PFRA is a self-regulatory organisation, established by Australian charities
to set and enforce professional standards in face-to-face fundraising (F2F).
[2] The Respondent raised a jurisdictional objection; that the application was filed outside
of the 21 day statutory time limit. This decision relates to whether an extension of time should
be granted pursuant to s.366(2) of the Act.
[3] Prior to the hearing of the extension of time matter, the application was the subject of
three appeals in relation to preliminary procedural matters. Subsequent to each of these
Appeals, it was necessary to then set further Directions were set to allow for the filing of
material. All of these submissions filed in response have been considered.
[4] In relation to the application, the Full Bench in the initial appeal decision stated:
“[3] On 11 April 2018 Mr Tamu filed a general protections dismissal application in
which he alleged that he had been dismissed by Australia for UNHCR (‘UNHCR’)
with several general protections contraventions being indicated including that his
dismissal was unfair, discriminatory and unlawful; that he had not been paid
correctly; and that his termination of employment came about for reasons that
included reports made by him of various colleagues committing fraud and timesheet
[2019] FWC 25 [Note: An appeal pursuant to s.604 (C2019/59) was lodged
against this decision - refer to Full Bench decision dated 9 April 2019
[[2019] FWCFB 2384] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb2384.htm
[2019] FWC 25
2
theft. While the application itself is unclear about the precise date of termination, it is
apparent that Mr Tamu received a termination letter on 15 March 2018.”1
BACKGROUND
[5] As referred to, there was some dispute between the parties as to whether and when the
dismissal took effect. The Applicant in his Form F8 was unclear on the date of termination; he
stated that he was telephoned by the Respondent on 9 March 2018 and informed that the
PFRA had contacted the Respondent and informed them that the Applicant was “detrimental”
to their business.
[6] The Applicant stated that on 12 March 2018, he was advised not to attend work by his
direct manager and subsequently on 15 March 2018, received a termination letter from the
Respondent. The Applicant however, as at 30 August 2018, stated that the Respondent had
failed to demonstrate that his employment had in fact been terminated at any time.2
[7] The Respondent submitted that the Applicant’s employment had been terminated
effective 9 March 2018, during the telephone conversation with Mr Matthew Keating
(Fundraising Program Manager of the Respondent), and Mr Benjamin Brogan (Training and
Development Manager of the Respondent). The Applicant was subsequently sent a
termination letter on 12 March 2018 (received on 15 March), which they stated confirmed the
Applicant’s employment had been terminated, effective 9 March 2018.
[8] The Applicant disputed those involved in the 9 March 2018 phone call. An Order to
Produce was made in response to the Applicant’s application for such, which sought the tape
recording of the 9 March telephone conversation. The Respondent’s Head of Governance and
Operations, Mr Mellsop, formally responded that no recording of the phone call was taken.
[9] The s.365 application was filed on 11 April 2018. Accordingly, it was argued by the
Respondent that the application was filed 12 days out of time, based on the 9 March 2018
dismissal date, or 6 days out of time from 15 March 2018, the date the Applicant confirmed
he received the letter of termination.
[10] As stated, there was some delay in the further extension of time Hearing as this matter
has been the subject of three appeals (on interlocutory issues) filed by the Applicant, (one
arising from the outcome of the first proceeding).3 In all three cases the Full Bench of the
Commission found the appeals to be either without utility or incompetent, and the matter was
returned to the Commission as currently constituted for the consideration of the extension of
time issue. On each occasion the Applicant advanced that it was unnecessary for the
Commission to consider whether an extension of time was required and that the matter should
proceed to determination of the substantive matter.
[11] The Applicant was entitled to file such appeal proceedings, and it is not necessary to
detail each application. However, the requirement for the initial determination of the
extension of time issue was addressed by that Full Bench in the following terms:
1 Tamu v Australia for UNHCR [2018] FWCFB 4332, at [3].
2 Applicant’s “Application to strike out Employer’s Jurisdictional Objection” dated 30 August 2018.
3 [2018] FWCFB 3522; [2018] FWCFB 4332.
[2019] FWC 25
3
“[8] On any available construct the general protections application made by Mr Tamu
appears to have been made more than 21 days after the date on which his termination
took effect. Section 366 of the FW Act provides that a general protections dismissal
application must be made within 21 days after the dismissal took effect. For an
application made on 11 April 2018 to be within time, the relevant dismissal must have
taken effect not earlier than 21 March 2018.
…
[26] The simple fact of the matter is that the extension of time question posed in
relation to Mr Tamu’s application has not been determined by any member of the
Commission. On the face of it Mr Tamu’s originating application plainly requires the
Commission to determine whether an extension of time is required, if the matter is not
otherwise resolved. The material filed by Australia for UNHCR in response to Mr
Tamu’s originating general protections application merely reinforces the need for the
extension of time issue to be determined. In those circumstances the appropriate
course is for the application to return to the Commissioner for determination as to the
next step to be taken.”4
[12] In terms of the dismissal, it is apparent on the evidence, that the Applicant was aware
that his employment had been terminated at least as at 15 March 2018, on receipt of the
termination letter. On these facts, the application was filed outside of the 21 day time limit by
6 days. The Respondent argued that the Applicant was aware of the dismissal at the earlier
date of 9 March 2018, when Mr Keating and Mr Brogan communicated the termination to
him by telephone, on that date. The Applicant took issue with the phone call and refuted that
the “Bogan” that provided evidence was not the “Bogan” that called him on 9 March 2018.
The Applicant predominantly pursued this evidentiary matter, during the proceedings.5 The
Respondent’s employee was Mr Brogan, who provided evidence and appeared by video at the
Hearing. The telephone call on the Applicant’s evidence was received by him on his
colleague’s phone. The Applicant would not acknowledge that Mr Brogan, with Mr Keating,
held the telephone discussion with him. The Applicant considered it was not Mr Brogan who
called him, however there was no evidence to support that he was able to see the other parties
on the phone, during that call. In any event, the 9 March 2018 phone call was followed by the
termination letter received by the Applicant, on 15 March 2018.
4 Tamu v Australia for UNHCR [2018] FWCFB 3522 at [8] and [26].
5 Transcript of Proceedings on 27 September 2018 in the matter C2018/4890 at PN69, PN71 and PN73.
[2019] FWC 25
4
RELEVANT PROVISIONS OF THE ACT
[13] Pursuant to s.365 of the Act:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the
industrial interests of the person, alleges that the person was dismissed in
contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal
with the dispute.”
[14] Further, s.366 of the Act relevantly provides:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
(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.”
SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE
[15] The Applicant, in his Affidavit set out he was born in Africa, and after graduating
from University has held senior roles in charity organisations. He stated that the reason for the
delay in filing the application was due to the fact that he had been lodging complaints for an
internal investigation through the Respondent’s internal complaints procedures and also by
lodging direct complaints to the UNHCR in Geneva.
[2019] FWC 25
5
[16] The Applicant submitted that it was not clear when the dismissal was effected.
Specifically, whether a dismissal occurred on 9 March 2018 via the phone call as alleged by
the Respondent, on 12 March 2018 when the termination letter was sent, or on receipt of such.
Accordingly, on this basis the Applicant submitted that the Commission has jurisdiction to
directly hear the substantive matter.6
[17] The Applicant stated, in his F1 application filed 30 July 2018 (extract verbatim):
“S365 and s366 (2) of the FW Act makes reference to 21 days. On 9th March 2009, two
people purpotting to work for Australia for UNHCR rang someone else's cellular
number and discussed with him employment issues and bullied and practiced unlawful
work place discrimination for about 30 minutes, in my presence and then they asked
him to pass the phone to me. They introduced themselves as Mr keating and Mr Bogan
from the Sydney office. I had never met Mr Bogan and I could not recoginise his voice.
They victimized me over the phone, made racial remarks and told me that the Public
Fundraising Regulatory Organization, ( a kind of unregulated 'regulator' also a
provider of fake legal advice to charities and supplier chains listed on its website had
told them to terminate my employment and that I was detrimental to UNHCR. This, in
spite of my not having any issues raised by UHCR and I was a top performer in the
company. Mr Keating and Mr Bogan told me that they were recording the
conversation, and because the call had initially been placed on Mr Fitsum's number,
the onus of providing that recording, as evidence of what was discussed lies solely on
them. I immediately told them that the information they alleged to have received from
PFRA was false and they needed to meet with me in Sydney to discuss this issues and
or write to me a letter inviting me to a disciplinary meeting or to purse United Nations
disciplinary procedures in relation to those issues. I had already raised complaints of
fraud by UNHCR staff including the conduct of Mr Keating to the real UNHCR in
Geneva and various arms of the UNHCR including Sydney and Canberra and I
discussed with Mr Bogan and Mr Keating these issues in more details, and including
time theft by staff. I immediately told Mr Keating on that phone call that I was
resuming work and will wait to receive a written letter inviting me to a disciplinary
meeting, with my support person, so I can explain my side of the story before any
action, and he agreed and I hung up and started canvassing for UNHCR.
UN disciplinary procedures is that HR Managers are involved in termination and or
sign off those letters and since I never attended the disciplinary meeting as had been
discussed, I have no reason to believe as UNHCR alleges that I was dismissed.
On 12th March 2018, I traveled Back to Rockhampton to recommence work as I had
not received an invite, in writing, to attend a discipliner. On Monday 12th March 2018,
I paid for my accomodation in Rockhampton for one week, until the 18th of March as
per UNHCR's Roster. However, On Monday Morning, when I resumed work in the
shopping Centre, I was told by the Team Leader that Mr keating had send a new and
inexperienced fundraiser from Sydney to take my place. I was really shocked and
confused. I send an email on 12th to other fundraisers informing them, but that
communication made it clear, if anything that I will be resuming. In the afternoon, I
went back to the shopping centre and I was not assigned. On Tuesday 13th March I
went to my work Place and I was not assigned. On 14th again I went to the shopping
6 Applicant’s Submission dated 26 April 2018 at page 3.
[2019] FWC 25
6
Centre and I was not assiggned. On 15th March 2018, I received a copy of
“termination letter” allegedly signed by Mr keating and not the HR Manager, making
disparaging remarks and undocumented assertitions of “issues” UNHCR had not
raised with me in writing, as required by law, or called me for a discipliner including
the allegations from PFRA. In the absence of a documented disciplinary meeting, as
per procedures, I resumed work the following Monday but was not assigned to a
campaign by Mr Keating or those working under him. Throughout this time,from 9th
March 2018 onwards I was in touch of Mr keating and various others within the wider
United Nations and also in UNHCR also seeking a confirmation of my employment
status and my unresolved dispute including not limited to allegations that I was
dismissed and the grounds of the alleged dismissal.
UNHCR claims that I received a notice of dismissal on 12th March and the evidence
Mr Keating gives is his letter issued illegally and unprocedurally and allegedly dated
12th March 2018 as Notice of termination of employment. He attaches a copy of fake
email submission to my email address luke528tam@yahoo.com as the “evidence” that
I received it, or that I was terminated on the 9th or the 12th of March 2018, but there is
no basis for any intelligent people to believe such fraud, from a big organisation such
as the UNHCR and the incosistencies regarding alleged dismissal are so serious, on
one hand, Mr keating alleges I resigned on 9th March 2018 over the phone call, and on
the other, he says that he terminated me on the 9th and or the 12th and he is so confusing
as in my view, his letter dated 12th March 2018 is a foggery, and should be dismissed.
Further, all the affidavits filed by UNHCR staff to Back up Mr Keating's falsehoods
and foggeries are also foggerries and perjury and should also be dismissed,as no
investigation by UNHCR has been commenced to unravel what occurred.
The ONLY authentic document, UNHCR can produce, is to comply by the order issued
by Commissioner Spencer and issue the recording of what we discussed on 9th March
2018, between Mr keating and someone else. I cannot even confirm if the other person
that was so rude and offensive on the phone call was Mr Bogan, whom I have never
met and when or if I meet him before the FWC I will be able to identify his voice,
otherwise, in the absence of the tape recording to confirm his voice, if it was the
person that talked with me on 9th, I will seek orders for perjury as honest employers
document what they say and retain record. Further, I have NO reason, absolutely O
reason to believe that if UNHCR rang me, they will not have a recording, as they
record all calls.
When I applied to the FWC in April, I made it clear in original application that I was
not sure when, or IF, I have been terminated.
The 21 days notice would apply to people who are very clear when they are
terminated and where the employer can present irrefutable documentation beyond any
reasonable doubt as when they held disciplinary meeting and as to when the employee
was terminated. In the presence of incoherant inconsistent information provided by my
employer, I can confirm that I'm not sure WHEN or IF, I was terminated and therefore
seek relief to be exempted from the statutory period grounded in the fact that the
employer has been inconsistent in providing documents ordered by the FWC.”
(Emphasis added)
[2019] FWC 25
7
[18] In the submissions filed 26 April 2018, the Applicant stated:
“2. The applicant admits that some people rang him on another person’s number
[redacted] on Thursday 9th March and discussed his employment issues on that
number belonging to Fistsum [sic]. They purported to be working for Australia for
UNHCR and introduced themselves as Matthew Keating and Ben Bogan [sic] and
advised him that they were recording the conversation and would produce it in court
as evidence if need be. The applicant was unable to identify the callers as he has never
spoken with the two over the phone.”
[19] The Applicant however attributed particular weight to the merits of his substantive
application, submitting that the Respondent’s action in terminating him was unfair,
discriminative and unlawful in character, and that this was a significant factor in supporting
the application for an extension of time.
[20] The substantive application raised allegations that the Respondent had breached the
general protections provisions of the Act7, specifically s.340 – Protection, s.343 – Coercion;
s.344 – Undue influence or pressure, and s.351 – Discrimination. The Applicant submitted
that the alleged breaches arose through such conduct by the Respondent as:
Bullying and harassment by his Team Leader;
Verbal discrimination; and
Differential treatment due to his nation of origin.8
[21] The Applicant filed an Affidavit which set out a number of issues relating to the
substantive application, and responding to the Employer’s Response and the reasons given for
termination. In brief, the Applicant made allegations against PFRA, which he described as
‘unregulated’ and stated that his difficulties in the workplace began in January 2017 when he
encountered Ms Emily Meyer, who he alleged was ‘ill disposed’ to his ethnicity and that she
said that she would make things very hard for him at his work and in the fundraising and
charity field in Australia. The Applicant said that after this point he was the victim of bullying
and other victimisation from PFRA, including posts on their website in respect of him and his
work, which he alleged was also a breach of his privacy. He generally referred to other
instances in which he alleged Ms Meyer and Ms Polly Kerne made discriminatory and
threatening comments towards him. He also alleged that he was treated with hostility by Mr
Keating and Mr Brogan throughout his employment, and that he was not paid appropriately
for travel time.
SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE
[22] The Respondent submitted that the facts relied on by the Applicant disclosed no prima
facie contravention of the general protections provisions. The Respondent submitted that the
Applicant’s employment was terminated due to a conflict of interest that arose in the conduct
of his duties, and further alleged substantiated misconduct.
7 Applicant’s Form F8 – General protections application involving dismissal at 3.1.
8 Ibid at 3.3.
[2019] FWC 25
8
[23] The Respondent submitted that the Applicant was dismissed via telephone on 9 March
2018 and that the dismissal was effective immediately. The purpose of the telephone call from
Mr Brogan and Mr Keating was to discuss with the Applicant issues of concern, namely that
the Respondent had been made aware of a potential conflict of interest in relation to the
Applicant (conducting conflicting charity fundraising work), and to determine the extent of
his involvement. Mr Keating advised the Applicant that he had also been made aware of two
incidents in relation to the Applicant’s conduct; Mr Keating further advised the Applicant the
conversation was a serious discussion, which may result in termination of his employment,
depending on the Applicant’s response. The Respondent submitted that the telephone call as it
progressed did in fact result in the termination of the Applicant’s employment, on the basis as
set out.
[24] The Respondent submitted that the Applicant was asked whether he was the director
of another charity, and the Respondent submitted that the Applicant confirmed he was. It was
also confirmed that the Applicant had not made the Respondent aware of this position during
his recruitment with the Respondent. The Respondent said that the Applicant was then offered
the opportunity to resign, but the Applicant declined such. The Respondent raised two further
allegations against the Applicant, involving his improper use of the charity’s hired motor
vehicle, and an instance (the subject of a complaint), whereby a hotel room hired by the
Respondent for the Applicant and other employees use, was left in an unclean state. The
Respondent said that the Applicant conceded both of these matters, but also argued that other
fundraisers had used work vehicles for private use, and other employees also used the hotel
room.
[25] Addressing the Applicant’s claim that his delay in filing was due to his attempts to
lodge internal complaints to his employer for investigation; the Respondent submitted that the
Applicant’s complaints had not been made clear to the Employer. The Employer stated it was
under the initial impression from emails sent by the Applicant to Mr Keating on 14 March
2018 and Ms Watters on 28 March 2018 that the grievance raised related to a potential
overpayment. Regardless, the Respondent considered that it was not a relevant reason for the
delay. The Respondent submitted that these requests for an internal investigation did not
explain the delay in filing the application; and did not constitute “exceptional circumstances”.
Accordingly, the Respondent submitted that the application should be dismissed for want of
acceptable reasons for the delay.
[26] Mr Matthew Keating, “Face to Face Manager” of the Respondent, gave evidence that
at no stage was he aware that the Applicant had raised concerns about unlawful
discrimination, bullying or fraudulent activities during his employment. Mr Keating stated in
response to the issues raised with the Applicant about the conflict of interest, that the
Applicant told him during the telephone conversation on 9 March 2018, that he was a Director
of NGO Fundraising. Mr Keating stated that, given this, he asked the Applicant if he intended
to resign his employment with the Respondent and the Applicant replied in the negative.
[27] Mr Keating stated that during the telephone conversation on 9 March 2018, he told the
Applicant his employment was terminated effective immediately, primarily due to him being
a Director of NGO Fundraising, which Mr Keating stated was an undisclosed conflict of
interest. On 12 March 2018, Mr Keating sent a letter to the Applicant confirming that his
employment was terminated on 9 March 2018.
[2019] FWC 25
9
[28] Mr Benjamin Brogan, “Face to Face Training and Development Manager” of the
Respondent, also gave evidence in these proceedings. Mr Brogan stated that he was also in
attendance during the telephone conversation on 9 March 2018, and his evidence of the
conversation was consistent with that of Mr Keating.
[29] The Respondent conceded that the Applicant had subsequently sent various emails in
relation to a range of topics to the Respondent, including an alleged over-payment made by
the Respondent to the Applicant, and seeking information on how the Respondent was dealing
with other employees conduct and requesting the Respondent’s bank account details. The
Respondent submitted that the Applicant’s emails were difficult to follow and often
incoherent.
[30] The Respondent refuted the Applicant’s allegation that this employment was
terminated in connection to the exercise of a workplace right. It was submitted that at no time
during his employment, did the Applicant raise issues of discrimination, bullying or
fraudulent and unprofessional conduct towards him. The Respondent stated that when the
allegation of fraudulent conduct was raised after the cessation of the Applicant’s employment,
the Respondent investigated the matters and determined that the allegation was baseless.
Furthermore, it was submitted that the Applicant had failed to adduce any evidence in support
of his allegations. The Respondent submitted the primary reason for the termination of the
Applicant’s employment, was that in breach of their policy, he had an undisclosed conflict of
interest, being that he was a Director of NGO Fundraising.
CONSIDERATION
[31] Pursuant to s.366(2) of the Act, the Commission must have regard to whether,
“exceptional circumstances,” exist to warrant extending the time for filing the application.
The term “exceptional circumstances” was considered in the Full Bench decision of the
Commission (then Fair Work Australia), in Cheyne Leanne Nulty v Blue Star Group Pty Ltd:9
“… 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.”10
(Emphasis added)
9 [2011] FWAFB 975.
10 Ibid at [13].
[2019] FWC 25
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[32] Further, the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd
t/as Richmond Oysters,11 held that:
“[38] As we have mentioned, the assessment of whether exceptional
circumstances exist requires a consideration of all the relevant circumstances.
No one factor (such as the reason for the delay) need be found to be
exceptional in order to enliven the discretion to extend time. This is so because
even though no one factor may be exceptional, in combination with other
factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs
to be taken into account in assessing whether there are exceptional
circumstances. The individual matters might not, viewed in isolation, be
particularly significant, so it is necessary to consider the matters collectively
and to ask whether collectively the matters disclose exceptional circumstances.
The absence of any explanation for any part of the delay, will usually weigh
against an applicant in such an assessment. Similarly a credible explanation for
the entirety of the delay, will usually weigh in the applicant’s favour, though,
as we mention later, it is a question of degree and insight. However the
ultimate conclusion as to the existence of exceptional circumstances will turn
on a consideration of all of the relevant matters and the assignment of
appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be
understood as suggesting that an applicant seeking an extension of time ‘needs
to provide a credible explanation for the entire period’, it is, with respect,
erroneous. It is not a pre-condition to the grant of an extension of time that the
applicant provide a credible explanation for the entire period of the delay.
Indeed, depending on the circumstances, an extension of time may be granted
where the application has not provided any explanation for any part of the
delay.
[41] The ‘reason for the delay’ is a factor that the Commission must take into
account in deciding whether there are exceptional circumstances. A distinction
may be drawn between the matters relevant to the determination of whether the
circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e))
and the elevation of a particular matter into a condition precedent to a finding
of exceptional circumstances.
[42] If we have correctly interpreted what is being said at [29] of the Decision,
then the Commissioner has elevated what is merely a relevant factor into a
decision rule so as to allow the automatic production of a solution. In deciding
whether there are exceptional circumstances, thus enlivening the discretion to
extend time, s.366(2) provides that the Commission must take into account
certain matters (at s.366(2)(a)-(e)); but it is not for the Commission to impose
an arbitrary limitation not expressed in the words of the Act.
11 [2018] FWCFB 901.
[2019] FWC 25
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[43] We acknowledge that there is a degree of ambiguity as to what is being
said at [29] of the Decision. We note that the statement is made in the course of
the Commissioner’s consideration of s.366(2)(a) and it may be read as saying
that a credible explanation for the whole of the delay is necessary in order to
conclude that s.366(2)(a) is to be treated as a factor weighing in favour of a
finding of exceptional circumstances. But, with respect, that proposition is also
incorrect.
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into
account in deciding whether there are exceptional circumstances. There is no
statutory basis for the adoption of a decision rule whereby if the applicant does
not provide a credible explanation for the entire period of the delay then the
matter in s.366(2)(a) tells against the finding of exceptional circumstances.
Common sense would suggest otherwise, it is plainly a question of degree and
weight.
[45] What if the period of the delay was 30 days and the applicant had a
credible explanation for 29 of those days? It seems to us that such
circumstances may weigh in favour of a finding of exceptional circumstances.
Of course, as mentioned earlier if there was a credible explanation for the
entirety of the delay that would weigh more heavily in favour of such a finding.
Conversely, if the applicant failed to provide a credible explanation for any
part of the delay that would tend to weigh against a finding of exceptional
circumstances.
[46] It follows that, however understood, the proposition advanced at [29] of
the Decision is erroneous. We would note, however, that the error was
understandable given the ambiguity in Cheval Properties and does not imply
any criticism of the Commissioner.”12
(Emphasis added)
[33] The Full Bench in Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette
Smithers,13 also noted:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as
“forming an exception or unusual instance; unusual; extraordinary.”14
[34] The Applicant has the onus of proof to establish that “exceptional circumstances”
existed to allow an extension for filing.15 As set out by the Full Bench decision in
Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,16 the
12 Ibid at [38] – [46].
13 [2010] FWAFB 7251.
14 Ibid at [5].
15 Francis v Holmesglen Institute [2017] FWC 3910; Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v
Smithers [2010] 197 IR 403.
16 [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018).
[2019] FWC 25
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assessment of whether exceptional circumstances exist requires a consideration of all the
relevant circumstances,17 across the period.
[35] In determining whether exceptional circumstances exist, s.366 of the Act requires the
Commission to take into consideration the matters contained in s.366(2)(a)-(e).
(a) the reason for the delay; and
[36] An application made pursuant to s.365 of the Act must be made within 21 days after
the dismissal takes effect. A dismissal is deemed to take effect when it is communicated to the
Applicant.18
[37] As set out, whilst the Applicant disputed the termination on the basis of procedure and
the date of dismissal, it was evident that the Applicant was aware that the Respondent
considered his employment came to an end on no later than 15 March 2018, when the
Applicant stated he received the termination letter. It is noted that the Respondent provided a
copy of an email sent to the Applicant on 12 March 2018 attaching a document titled
“Termination of Casual Employment.”19
[38] The Respondent argued this as the latest date, and that the application also from that
date of 15 March 2018, was filed outside of the statutory timeframe. The Commission may
allow a further period for the Applicant to file the application, after considering the legislative
criteria and if it is satisfied that there are “exceptional circumstances”.
[39] As referred to, “exceptional circumstances” have been considered as circumstances
that are out of the ordinary course, unusual special, or uncommon,20 however there is no
requirement that they be unique, unprecedented, or very rare.21 Furthermore, they may be a
single event or a series of events that considered together are exceptional. The assessment of
whether exceptional circumstances exist requires a consideration of all the relevant
circumstances.22
[40] Ignorance of the timeframe for lodgment is not deemed to be an exceptional
circumstance.23
[41] The Applicant stated that the reason for the delay in filing the application was due to
the fact that he had been lodging complaints for an internal investigation through the
Respondent’s internal complaints procedure and also by lodging direct complaints to the
United Nations High Commissioner for Refugees (the UNHCR) in Geneva. He provided two
17 Ibid at [38].
18 Beverly Jean Burns v Aboriginal Legal Service of Western Australia (Inc.) (21 November 2000) Print T3496 at [24];
Plaksa v Rail Corporation NSW [2007] AIRC 333 at [8].
19 Respondent’s material filed 4 May 2018 at Annexure A.
20 Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [25]; Nulty v Blue Star Group Pty Ltd [2011]
FWAFB 975 at [13].
21 Ibid.
22 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38].
23 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].
[2019] FWC 25
13
letters dated 18 March 2018 and 2 April 2018, addressed to the UNHCR.24 He referred to the
“Addressing Grievances in the UNHCR” document. The letter of 18 March 2018 stated:
“18th March 2018
UNHCR
Human Resources Officer (DRM)
Service by: FAX [redacted]
Reference: Individual staff Grievance
In response to my phone call to your office on March 16th 2018 in relation to my
employment at Australia for UNHCR, this letter will serve as a formal complaint
pursuant to your staff grievance procedures. Mr Matthew Keating, Ms Fiona Watters
and Ms Cavuoti in Sydney have not been returning my calls. I would appreciate it, if
you can resolve my employment issues in accordance with your procedures.
Please note that I have a right to be notified in writing of any disciplinary issues and a
right to be accompanied by my Union Representative. In the meantime, I will keep
reporting to work until issues are resolved.
Many thanks and Regards,
Luke Tamu”
[42] A letter of 2 April 2018 stated:
“2nd April 2018
UNHCR
Human Resources Officer (DRM)
Service by: FAX [redacted]
Reference: Individual staff Grievance
Further to my letter dated 18th March 2018, Mr Matthew Keating, Ms Fiona Watters
and Ms Cavuoti in Sydney are still not responding to my calls and my attempts to set
up a face-to-face meeting with any of Australia for UNHCR staff has been frutile.
I would appreciate it, if you can resolve my employment issues in accordance with
your procedures and or use your own mediation service as per your regulations.
Please note that I have a right to be notified in writing of any disciplinary issues and a
right to be accompanied by my Union Representative. In the meantime, I will keep
reporting to work until issues are resolved.
This letter will form my final notice.
24 Applicant’s email to the Fair Work Commission dated 30 August 2018.
[2019] FWC 25
14
Many thanks and Regards,
Luke Tamu”
[43] A further letter of 4 April 2018 stated:
“4th April 2018
UNHCR
Mediator
Service by Fax [redacted]
Reference: Mediation
Reference: Application for Mediation
I am writing to request official mediation pursuant to your procedures. I'm a current
employee of Australia for UNHCR and I have been attending my place of work but not
being treated humanely. I have been asked by my Team Leaders to contact Mr
Matthew Keating to assign me to UNHCR campaign and when I contact him, he fails
to answer the phone. I had issues with him and he wrote to me a “notice of
termination” allegedly effective 9th March 2018, which from my view was fraudulent
and has no basis given the fact no disciplinary meeting occurred. I have not been
getting paid as well.
I have been contacting Ms Cavuoti and Ms Watters for a meeting on 6th April but I
have not received an written confirmation of the meeting. I still intend to Visit Sydney
and attend on 6th April.
I would appreciate it, if you can resolve my employment issues in accordance with
your procedures and or use your own mediation service as per your regulations.
Many thanks and Regards,
Luke Tamu”
[44] In the decision of Z Gao v Department of Human Services,25 the Full Bench of the
Commission considered an appeal against a decision of Deputy President Hamilton to decline
to extend the timeframe for lodgment of an unfair dismissal application. The employee in that
case had requested the employer to review (and then later to further review) a decision to
terminate his employment. It was argued that the time taken to engage in this process,
particularly in circumstances where the employer did not respond to the employee’s request
for a further review, should have been taken into account in considering the reasons for the
delay. The Full Bench observed that notwithstanding that the Deputy President did take these
25 [2011] FWAFB 5605.
[2019] FWC 25
15
circumstances into account, the employee could have reasonably sought a further review after
the application had been lodged.26
[45] In this case the Applicant has made reference to pursuing the Respondent’s internal
complaints processes, however provided no evidence regarding how these endeavours
impeded him making the application. He has linked the complaints with possible reasons for
the employment relationship ending, but provided no evidence in these proceedings to
demonstrate such. The termination had been implemented prior to these letters, as referred to.
[46] There was an exchange of correspondence between the Applicant and the Respondent
after the date of dismissal; the correspondence related to matters seeking redress, and
mediation, but also on an alleged overpayment made by the Respondent to the Applicant (and
seeking information on how the Respondent was dealing with other employee’s conduct, and
correspondence requesting the Respondent’s bank account details).
[47] The Applicant’s enquiries to the Respondent following the cessation of the
employment, primarily related to procedural matters with the termination. He also sought his
timesheets, and his travel arrangements.
[48] The Respondent submitted that the Applicant’s complaints had not been made clear,
and that the emails sent by the Applicant to Mr Keating on 14 March 2018 and Ms Watters on
28 March 2018 related to an alleged overpayment.
[49] In respect of the Applicant’s complaints to the UNHCR, the Applicant’s letters
addressed to the UNHCR were produced late in the proceedings. The Respondent at that time
objected to the admission of these letters27 on the basis that the Respondent had not been
aware that the Applicant had made these complaints to that body, and had not seen or received
copies of these, prior to those proceedings.
[50] In respect of the Applicant’s complaints to the UNHCR, there was no evidence that
the Respondent was made aware of those endeavours by the Applicant until a later stage.28
There was no evidence that the UNHCR Geneva was an appropriate body for the Applicant to
raise the type of grievance the Applicant refers to, and no evidence that it was able to
intervene and direct the Respondent. Furthermore, there was nothing preventing the Applicant
from filing the application within the 21 day time limit, whilst pursuing that grievance
procedure with the UNHCR. The Applicant’s ignorance as to which body to challenge his
dismissal with, is not an “exceptional circumstance” justifying an extension of time;29
additionally corresponding with the UNHCR demonstrated the Applicant could have lodged
his application within time.
[51] The Respondent submitted that the Applicant’s employment was terminated on 9
March 2018 and that this was confirmed in writing on 12 March 2018. The Respondent
submitted that despite the Applicant’s assertion that he was “sick and has been stressed and
there is medical evidence that attributes this to the defendant and the PFRA’s action,” there
26 Ibid at [10].
27 Respondent’s email to the Fair Work Commission dated 14 August 2018.
28 Transcript of Proceeding on 18 September 2018 at PN640-PN644.
29 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
[2019] FWC 25
16
was no medical evidence from the Applicant, before the Commission, in support of this
submission.
[52] The Applicant emphasised that the he did not consider that he had been dismissed, as
he did not agree that Mr Brogan was the Mr Brogan that, with Mr Keating, had telephoned
him to communicate the dismissal:
“MR TAMU: Who else from Australia for UNHCR attended that phone call meeting,
because I am going to submit that Mr Brogan you are presenting is not the Bogan(sic)
that spoke to me and that is the truth.
THE COMMISSIONER: It's Mr Brogan, I think.
MR TAMU: Mr Brogan, as you are bringing, is not the guy that spoke to me, and that
is the truth?---Yes, Mr Brogan, who is in attendance to day was the person on the call
for the entirety of the call.”30
[53] At the second jurisdictional hearing on this matter on 18 September 2018, both Mr
Keating and Mr Brogan gave evidence that the Mr Brogan, who was present at the hearing on
18 September 2018, was indeed the same person who spoke to the Applicant on 9 March
2018.31 It is not necessary to determine the factual dispute between the parties as to whether
the Mr Brogan who gave evidence to the Commission is the same person who spoke to the
Applicant on 9 March 2018. The question over the identity of Mr Brogan is, in fact, of little
relevance to the question of whether exceptional circumstances exist to justify the
Commission exercising its statutory discretion to extend the time for making an application
pursuant to s.365 of the Act.
[54] Whether or not the Applicant was dismissed as a consequence of the telephone call on
9 March 2018, and whether or not Mr Brogan participated in the 9 March telephone call, it is
not in dispute that the Applicant was aware of his termination by at least 15 March 2018.
Whilst the evidence of Mr Brogan, of his participation in the call was persuasive, the identity
of Mr Brogan does not alter the material fact, as admitted by the Applicant at the hearing, that
he was in receipt of a letter of termination by at least 15 March 2018.32 In the circumstances,
by 15 March 2018 there is little more the Respondent could have done to communicate to the
Applicant that his employment had been terminated. The Applicant’s objection to this letter of
termination, or alleged lack of knowledge as to whether the termination could be challenged,
does not amount to an “exceptional circumstance”.
[55] In respect of the Applicant’s alleged mental state, it is well-established that stress and
associated conditions are commonly encountered by persons in similar positions post
dismissal, and this alone will not generally satisfy “exceptional circumstances”, to justify an
extension of time. Furthermore (there was a lack of medical evidence) but also the fact that
the Applicant was able to, on his own evidence, take action to raise other grievances with the
UNHCR and the Respondent, demonstrated that the Applicant was able to engage in formal
proceedings and therefore able to file the s.365 application within time.33
30 Transcript at PN344-PN346.
31 Transcript of Proceeding on 18 September 2018 at PN175, PN392, PN402, PN404 and PN432.
32 Ibid. at PN272 and PN682.
33 Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645.
[2019] FWC 25
17
[56] The Applicant further made a number of submissions at the hearing, contending that
his dismissal was not procedurally fair.34 It is evident, in this matter, that the employee was
clearly notified of the termination of his employment. A termination can occur
notwithstanding procedural or legal issues with how or why it occurred. Further, if the
Applicant’s employment had not in fact been terminated, as he appeared to claim during the
hearing, then it unclear as to what basis the Applicant had standing to bring the application he
filed for breach of general protections, relating to dismissal under s.365 of the Act.35 In the
circumstances, the procedural issues with the Applicant’s dismissal may be relevant to the
assessment as to the merits of the application; but on the current arguments do not provide a
reason for the delay.
[57] The circumstances provided by the Applicant are not commensurate with “exceptional
circumstances”. It is common for persons ceasing employment with an employer to continue
to liaise with that employer, concerning matters related to the finalisation of their
employment, such as travel arrangements and payment details, as was the case in this matter.
Further, it is incumbent on those who seek to challenge their dismissal, to do so in a manner
that is sufficiently expeditious, to allow for lodgement of an application, within the statutory
time limit. The Applicant has not adduced evidence nor made any submissions of satisfactory
reasons, to demonstrate he was impeded from lodging the application on time.
[58] The reasons provided, do not represent “exceptional circumstances”. The reasons
provided for the period of the delay (even at the shortest time frame from 15 March 2018), do
not account for the overall period of the delay. Whilst correspondence was forwarded by the
Applicant, this does not accord with the period of delay. Therefore, on this criteria the reasons
provided for the delay do not warrant extending the statutory timeframe.
(b) any action taken by the person to dispute the dismissal; and
[59] As previously stated, the Applicant did correspond with the Respondent following the
cessation of his employment. The Applicant (as set out in the letters to the UNHCR), disputed
the termination and sought a response and mediation. Correspondence also included matters
regarding obtaining timesheets and an alleged overpayment.
[60] Further to the correspondence as previously set out, the Respondent stated:
“On 14 March Mr. Keating wrote an email to Mr. Tamu in relation to his final pay
(Annexure F). As Australia for UNHCR did not have a signed timesheet for the last
shift worked by Mr. Tamu, Mr. Keating made Mr. Tamu aware that the payment would
be based off the roster.
From 12 March to 28 March Mr. Tamu wrote a series of emails to Mr. Keating and
Ms. Justine Ferguson, Payroll Officer at Australia for UNHCR requesting copies of
his timesheets. Mr. Keating responded to his email with attached timesheets. In these
emails Mr. Tamu also offered to pay for the additional cleaning required of the hotel
room, advised that he wished not to be paid based on ‘false timesheets and that he no
longer wished to be engaged with Australia for UNHCR (Annexure G).
34 Transcript of Proceeding on 18 September 2018 at PN680, PN684, PN686 and PN694.
35 Ibid. at PN691-PN694.
[2019] FWC 25
18
Subsequent to Mr. Tamu’s requests of Mr. Keating and Ms. Ferguson, he then emailed
the HR Manager Ms. Fiona Watters on 28 March 2018 (Annexure H) stating that
Australia for UNHCR had overpaid him and requesting company bank account details
to make a repayment, copies of his timesheets and that HR conduct an investigation
into Australia for UNHCR fundraisers claiming payment for hours not worked. Mr.
Tamu also advised that he had contributed to the unclean hotel room in Tasmania and
requested that the invoice for cleaning be sent to him to pay. Mr. Tamu requested
evidence of the disciplinary action taken against other fundraisers in relation to the
personal use of a vehicle during a work-related trip and the unclean hotel room.
Ms. Watters responded to Mr. Tamu’s email on Thursday 29 March (Annexure I). She
confirmed that Australia for UNHCR’s records showed that no overpayment had
occurred and that Mr. Tamu had received documentation of hours worked via his
payslip. Ms. Watters therefore took the view that it was not appropriate to provide
bank account details to Mr. Tamu and advised him as such in her email. Ms. Watters
also took the view that it was not appropriate to share any confidential details of other
employees such as disciplinary action and that any further comment on investigations
into time theft was also not relevant to Mr. Tamu or to the termination of his
employment.
On 31 March Mr. Tamu responded to Ms. Watters requesting his employment contract
and timesheets and Ms. Watters responded on 3 April with attached timesheets and
employment contract (Annexure J).
Mr. Tamu responded on 4 April (Annexure K) stating the timesheets were
unacceptable and requesting that call logs be made available to him. Mr. Tamu
advised that he would be in Sydney on 6 April and wished to make a complaint to the
HR Director on this date and in person. Ms. Watters was on leave from 4 April and
did not respond to Mr. Tamu’s email. Mr. Tamu emailed Ms. Carol Cavuoti, HR
Officer, having received Ms. Watters out of office reply.
Ms. Cavuoti did not respond to Mr. Tamu as she understood he would come into the
office on Friday. Mr. Tamu did not arrive in the office on Friday 6 April.
Ms. Watters received notification from the Fair Work Commission on 12 April that
Mr. Tamu had lodged a General Protections claim outside of the allowable time
period.
Ms. Watters received a further email from Mr. Tamu on 17 April outlining a number
of grievances and further requests for information (Annexure L). Mr. Tamu copied in
the Fair Work Ombudsman to this email. Ms. Watters elected not to respond to this
email from Mr. Tamu as a process with the Fair Work Commission had been initiated.
Mr. Tamu states that he has lodged complaints for internal investigation directly with
Australia for UNHCR. Mr. Tamu’s complaints have not been clear to Australia for
UNHCR. It was first understood the grievance was related to potential overpayment in
his email to Mr. Keating dated 14 March and overpayment in the email to Ms. Watters
on 28 March. Mr. Tamu made a request for an investigation be undertaken by
Australia for UNHCR into fundraisers being paid for hours not worked. Australia for
[2019] FWC 25
19
UNHCR reserves the right to decide when it undertakes an internal investigation such
as the type Mr. Tamu was requesting. Australia for UNHCR did not feel it was
relevant to Mr. Tamu or his termination to engage with Mr. Tamu’s request for an
investigation.”36
[61] The action taken by the Applicant, in corresponding with the Respondent and writing
to the UNHCR, evidenced that the Applicant was capable of filing the s.365 application, and
does not provide reasons preventing the lodgement or sufficiently explain the delay. The
further correspondence of the Applicant relate to regular post-employment requests regarding
timesheets, and querying payments, and do not justify a period of delay. These reasons do not
favour extending the timeframe for lodgment.
(c) prejudice to the employer (including prejudice caused by the delay); and
[62] It is relevant to note that there has been delays caused in the progress of this case, by
the Applicant undertaking three appeals in relation to interlocutory matters, prior to the
hearing of this jurisdictional matter. It is noted the Applicant exercised an entitlement to file
an Appeal.
[63] In the first appeal,37 the Full Bench considered that the appeal was incompetent as it
was not an appeal against a decision howsoever described. The second appeal was, amongst
other reasons, an appeal against a procedural decision to adjourn the proceedings for a period
of four days.38 In respect of that issue, the Full Bench held:
“[23] The adjournment was for a short period, from 23 July to 27 July 2018. Further,
on 24 July 2018, Mr Tamu requested the hearing listed for 27 July be adjourned due to
changes in his own circumstances. The Commissioner granted Mr Tamu’s request, and
a new hearing date is yet to be fixed. In the circumstances there is no utility in
granting permission to appeal as the initial adjournment decision (which is the subject
of the appeal) has been overtaken by events, namely the grant of Mr Tamu’s
subsequent adjournment request. In any event, concerns about the scheduling of
matters before the Commission should be fully addressed with the Member responsible
before an appeal of this nature is contemplated by a party who is impacted by a
change in such arrangements.”39
[64] The third appeal concerned an objection by the Applicant to some of the Respondent’s
evidence, and that a jurisdictional hearing should not be held in this matter. This appeal was
found to be incompetent, given the extension of time hearing was yet to occur, and these
matters would be relevant to the consideration at the extension of time matter. The Applicant
objected to the evidence of Mr Brogan, on the basis that he can’t be a witness for an event he
was not a party to. The evidence of the Respondent witnesses was accepted in the
proceedings; the applicant was able to cross-examine these witnesses as to their involvement
in the telephone call, where the termination was discussed. The Applicant also provided
further submissions on this. It was clear on the evidence, and further to the cross-examination,
Mr Brogan and Mr Keating undertook the 9 March 2018 telephone call with the Applicant.
36 F8A Employer Response form dated 23 April 2018, at Q 2.2.
37 [2018] FWCFB 3522.
38 [2018] FWCFB 4332.
39 Ibid at [23].
[2019] FWC 25
20
[65] The expression “prejudice to the employer (including prejudice caused by the delay)”
does not limit the circumstances that the Commission may take into account in determining
any prejudice to the employer. Indeed, specific delineation of “including prejudice caused by
the delay” implies that there are circumstances other than prejudice caused by the delay in
filing, that the Commission may take into account.
[66] In circumstances where the Applicant has made three appeals (on preliminary
procedural matters) requiring additional responses to such by the Respondent, the Respondent
has been burdened with the additional responses and attendances on such. This is relevant in
the current circumstances where the merits of the case do not favour granting an extension
and the material does not demonstrate prima facie contraventions or general protections
infringements.
[67] A finding that the Employer in the current circumstances has been prejudiced, does not
infer that parties should be dissuaded from appealing, or conducting their case in a manner
that does not strictly conform to well-established rules of procedure; however this matter is
novel in both regards. It is determined the Applicant’s filing of these particular appeals on the
procedural matters has prejudiced the Employer; given the need to respond and be heard on
each, and such has added to the factual matrix of the overall context of the matter.
(d) the merits of the application; and
[68] The Applicant attributed particular weight to the merits of the substantive application,
submitting that the Respondent’s action in terminating his employment was unfair,
discriminative and unlawful in character, and was a significant factor in supporting the
application for an extension of time.
[69] The substantive application raised allegations that the Respondent had breached the
general protections provisions of the Act, specifically ss.340, 343, 344 and 351. The
Applicant submitted that the breaches arose through such conduct as:
Bullying and harassment by his direct manager;
Verbal discrimination; and
Differential treatment due to his nation of origin.40
[70] The Applicant filed an affidavit in these proceedings. In summary terms, the Applicant
made a number of serious allegations against PFRA, the organisation which purportedly
informed the Respondent that the Applicant was “detrimental” to their business. The
Applicant alleged that in January 2017, he encountered an employee of PFRA who the
Applicant alleged was “ill disposed” towards him due to his ethnicity. The Applicant made
generalised assertions that this employee then made performing his work difficult.
[71] The Applicant stated that after this point, he was the victim of bullying and other
victimisation from PFRA, including posts on their website in respect of him and his work,
which he alleged was also a breach of his privacy. He referred to other instances in which he
alleged different employees of PFRA made discriminatory and threatening comments towards
him. He also made unparticularised allegations that he was treated with hostility by Mr
40 Applicant’s Form F8 – General protections application involving dismissal at 3.3.
[2019] FWC 25
21
Keating and Mr Brogan throughout his employment, and that he was not paid appropriately
for travel time.
[72] In terms of the merits of the application, the Respondent stated:
“On 5 March 2018, the PFRA notified its members that it had terminated the
membership of NGO Fundraising, a F2F fundraising agency whose Director was Mr.
Tamu. Up until that time A4U Managers working in the F2F team had not been
advised or made aware of Mr. Tamu’s position as a Director of NGO Fundraising.
Around the same time, Mr. Keating had received two reports concerning Mr. Tamu’s
conduct as a fundraiser. One was in relation to personal use of a hired car on a work
travel trip. The second was receipt of a fine for accommodation which Mr. Tamu had
shared with other fundraisers on a work travel trip which was left unclean.
As the non-disclosure of Directorship in a fundraising organisation was a potential
conflict of interest and conduct around personal use of a hire car and accommodation
left unclean on a work related trip was concerning conduct, Mr. Keating took the step
to discuss these incidents with Mr. Tamu.
On 9 March Mr. Keating and Mr. Brogan phoned Mr. Tamu to discuss the issues that
had recently come to light. Mr. Keating advised Mr. Tamu that he was made aware of
a potential conflict of interest in relation to Mr. Tamu and that the purpose of the call
was to determine Mr. Tamu’s involvement. Mr. Keating also stated that there were two
incidents relation to Mr. Tamu’s conduct which he also wished to discuss. Mr. Keating
advised that it was a serious discussion and that termination of employment may occur
depending on Mr. Tamu’s response. Mr. Keating asked Mr. Tamu if he was prepared
to have this type of discussion now or would he rather find a quiet place and call him
back. Mr. Tamu advised he was happy to proceed with the discussion. Mr. Keating
outlined two points and sought Mr. Tamu’s response on each of the points:
- Mr. Keating stated that the PFRA had advised its members in an email
(Annexure D) that Mr. Tamu was a Director of NGO Fundraising and that
the membership of NGO had been cancelled from the PFRA. Mr. Keating
asked Mr. Tamu if he was a Director of NGO Fundraising. Mr. Tamu
confirmed he was a Director of NGO Fundraising. Mr. Keating stated the
importance of the PFRA to Australia for UNHCR and reminded Mr. Tamu
of the responsibility each fundraiser has to disclose any conflicts of
interest. Mr. Keating confirmed that Mr. Tamu did not make Australia for
UNHCR aware during recruitment or employment that he was a Director
of another fundraising organization. Mr. Tamu agreed he did not disclose
this information. Mr. Tamu offered to resign from his position. Mr. Keating
stated Mr. Tamu was in his rights to resign and asked if this is what he
wanted to do. Mr. Tamu stated no, he did not want to resign. Mr. Keating
asked Mr. Tamu if he had anything further to say about this conflict of
interest, Mr. Tamu stated he did not.
- Mr. Keating stated that he was recently made aware of two incidents that
concerned Mr. Tamu’s behavior as a fundraiser. Mr. Keating stated that
Mr. Tamu was alleged to have driven a car which was hired for a work
[2019] FWC 25
22
travel trip from Lismore back to Brisbane. The purpose of Mr. Tamu’s
travel was personal and not work related. Mr. Keating asked Mr. Tamu if
this was correct. Mr. Tamu agreed it was, but that he was aware that other
fundraisers had also used hired cars for personal use. Mr. Keating stated
he was concerned about safety and that Mr. Tamu had shown poor
judgment in using the hire car for his personal use. Mr. Keating went on to
state that he had received a fine for accommodation in Tasmania which
was left in an unclean state and that he was made aware that Mr. Tamu
was a part of this trip with three other fundraisers. Mr. Tamu agreed he
was on this travel trip but stated he did not contribute to the unclean
accommodation. Mr. Keating asked if Mr. Tamu saw that the
accommodation was in an unclean state. Mr. Tamu agreed he did see that
it was left unclean.
- Mr. Keating stated that based on the fact that Mr. Tamu had admitted he
was a Director of NGO Fundraising and that he had not previously advised
anyone at Australia for UNHCR during recruitment or employment of this
fact, that his casual employment would be terminated effective immediately.
Mr. Keating advised that the recent incidents in relation to personal use of
a hire vehicle and leaving accommodation in an unclean state were
contributing factors as it demonstrated Mr. Tamu had shown poor
judgment.
- Mr. Tamu asked if Australia for UNHCR would fly him back to Brisbane.
Mr. Keating advised they would and that he would be paid 1 day in lieu of
notice as per his employment contract.
A letter confirming termination of employment and payment of an additional 7.5 hours
in lieu of notice was sent to Mr. Tamu on 12 March 2018 (Annexure E).”41
[73] Mr Keating gave evidence that at no stage was he aware that the Applicant had raised
concerns about unlawful discrimination, bullying or fraudulent activities during his
employment. Mr Keating stated that the Applicant confirmed during the telephone
conversation on 9 March 2018 that he was a Director of NGO Fundraising, and he would not
resign.
[74] Mr Keating stated that during the telephone conversation on 9 March 2018, he told the
Applicant his employment was terminated effective immediately, primarily due to him being
a Director of NGO Fundraising, which Mr Keating stated was an undisclosed conflict of
interest. On 12 March 2018, Mr Keating sent a letter to the Applicant confirming that his
employment was terminated on 9 March 2018. The letter of termination dated 12 March 2018
states:
“12th March 2018
Private and confidential
Mr Luke Amukhale Tamu
[redacted]
41 F8A Employer Response form dated 23 April 2018, at Q 2.2.
[2019] FWC 25
23
Dear Luke Amukhale Tamu,
Termination of Casual Employment
I am writing to confirm our discussion on Friday 9th March 2018, regarding
termination of your casual employment arrangement with Australia for UNHCR.
During the meeting, attended by myself, F2F Training and Development Manager Ben
Brogan and yourself, discussion surrounded general conduct and expectations of an
employee of Australia for UNHCR. In the meeting the following points were
discussed;
1. Confirmation of your previous role with NGO Fundraising and recent termination
of NGO Fundraising’s PFRA membership
2. Australia for UNHCR’s membership with the PFRA
3. Your personal use of a rental vehicle whilst on a travel trip
4. The accommodation you stayed in on a recent travel trip to Tasmania being left
unclean
As a result of the above concerns, in Friday’s meeting we confirmed with you the
immediate termination of your employment with Australia for UNHCR, effective 9th
March 2018. As discussed with you on the call, as per the terms of your employment
contract, in lieu of notice, we will pay you 7.5 hours for the shift you were unable to
complete on Saturday 10th March 2018, and 1 hour of travel time for your return to
Brisbane.
We wish you all the best in your future endeavours.
Matthew Keating
Face to Face Manager
Australia for UNHCR.”
[75] Mr Brogan also gave evidence in these proceedings, regarding his attendance during
the telephone conversation on 9 March 2018. His evidence was cogent and consistent with
that of Mr Keating.
[76] The Respondent refuted the Applicant’s allegation that this employment was
terminated in connection with a workplace right. It was submitted that at no time during his
employment, did the Applicant raise issues of discrimination, bullying or fraudulent and
unprofessional conduct. The Respondent stated that when the allegation of fraudulent conduct
was raised after the cessation of the Applicant’s employment, the Respondent investigated the
matters and determined that the allegation was baseless. Furthermore, it was submitted that
the Applicant had failed to adduce any evidence in support of his allegations. The Respondent
submitted the primary reason for the termination of the Applicant’s employment, was that he
had an undisclosed conflict of interest, being that he was a Director of NGO Fundraising.
[77] The Respondent set out that clause 10 of the Applicant’s contract of employment
provided that his employment may be terminated for undisclosed conflict of interest. Further,
the Respondent relied on clause 1.1 of the F2F Employee Handbook, which the Respondent
[2019] FWC 25
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stated was provided to the Applicant on 6 December 2017 by email. This states that any real
or perceived conflict of interest should be raised with a Campaign Manager or F2F Program
Manager. A current company extract of NGO Fundraising Consultancy Pty Ltd produced by
the Respondent in the proceedings confirmed the Applicant was the sole Director and
shareholder of the company.42 The Applicant agreed to this. The Respondent made reference
to the Code of Conduct in the Employee Handbook, which set out the professional standards
required.
[78] The Applicant has adduced no evidence that discloses a prima facie breach of the
general protections provisions by the Respondent. The evidence of Messrs Keating and
Brogan is favoured in respect of the conversation on 9 March 2018, and the reasons for
dismissal.
[79] In this matter, there were contested facts whether a dismissal occurred. In the decision
of Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital,43 it was set out
that:
“[40] For the reasons given, the content and structure of Subdivision A of Division 8 of
Part 3-1 of the Act support the proposition that it is sufficient to give the Commission
jurisdiction to conduct a conference under s.368 that a s.365 application to state on its
face that the applicant has been dismissed and it is alleged that the dismissal was in
contravention of Part 3-1.”44
[80] It was concluded in that matter that:
“[50] For the reasons given we do not accept that the Commission needs to be satisfied
that the applicant has been ‘dismissed’ from their employment before holding a s.368
conference. It is sufficient that the Commission has before it an application that on its
face alleges a dismissal in contravention of Part 3-1.”45
[81] In this current matter, the evidence demonstrates that a telephone call was made to the
Applicant which ended, on the Respondent’s evidentiary material, in a communication to the
Applicant that his employment had been terminated. It is not necessary to determine whether
the dismissal actually occurred, but on the evidence such was communicated to the Applicant
on 9 March 2018, or per the Applicant’s concession, by receipt of the termination letter on 15
March 2018.
[82] The Applicant made a number of submissions in relation to the unfairness of the
termination procedure. These submissions however are not factors directly relevant to the
current considerations.
[83] The Respondent stated the Applicant’s termination was lawful in accordance with the
contract of employment, on the basis of a conflict of interest.
[84] The merits of the application, as referred to, do not favour granting an extension.
42 Respondent’s material filed 4 May 2018 at Annexure H.
43 [2013] FWCFB 6321.
44 Ibid at [40], see also [42].
45 Ibid at [50].
[2019] FWC 25
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(e) fairness as between the person and other persons in a like position.
[85] Neither party referred to any other persons in a like position.
CONCLUSION
[86] Taking into account all of the facts and circumstances, and having regard to the
abovementioned matters, I find that exceptional circumstances are not present to warrant
extending the timeframe to allow the application. No satisfactory reasons for the delay (taking
into account the whole period) have been established on the evidence. Accordingly, pursuant
to s.366(2) I decline to exercise the discretion to grant an extension of time to accept the
application.
[87] The application made pursuant to s.365 of the Act is dismissed.
[88] I Order accordingly.
COMMISSIONER
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