Adnan Pal v Wsa Co Limited - [2024] FWC 2106

[2024] FWC 2106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Adnan Pal
v

Wsa Co Limited

(U2024/7079)

COMMISSIONER CRAWFORD

SYDNEY, 8 AUGUST 2024

Unfair dismissal application filed out of time – no satisfactory reason for delay – merits weigh against an extension - no exceptional circumstances – application dismissed

Background

Adnan Pal (Mr Pal) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he was unfairly dismissed by WSA Co Ltd (WSA).

The WSA initials represent Western Sydney Airport, which is currently being constructed at Badgerys Creek. Mr Pal commenced working for WSA on 10 October 2022 as a Technology Risk Manager. Mr Pal was employed under a maximum term contract which had an outer limit of 19 December 2025.

Mr Pal was dismissed effective 14 May 2024. WSA indicated the project had reached a point that Mr Pal’s role was no longer required. Mr Pal was paid for four weeks in lieu of notice as required by his contract.

Mr Pal filed a Form F2 unfair dismissal application on 19 June 2024.

WSA filed a Form F3 employer response on 1 July 2024. WSA raised two jurisdictional objections to Mr Pal’s application. Firstly, WSA submitted that Mr Pal’s application was not filed within 21 days of his dismissal taking effect. Secondly, WSA submitted that Mr Pal was not a person protected from unfair dismissal because his employment was not covered by a modern award or enterprise agreement, and Mr Pal earned above the high income threshold.

I issued directions for the filing of material regarding whether Mr Pal should be granted an extension of time to file his application and listed a determinative conference/hearing regarding that issue for 2 August 2024 via video.

Mr Pal represented himself at the determinative conference/hearing on 2 August 2024. WSA was represented by Steven Van Der Donk (Chief Legal Officer) and Kirby Grattan (Chief People Officer).

At the start of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference so I could take a more active role in gathering evidence from the parties. There was no opposition to this. I conducted the proceeding as a determinative conference.

Material filed

Mr Pal

Mr Pal relied on the following evidence in support of his request for an extension of time:

· Form F2 application. Given the absence of a witness statement and that the Form F2 contains evidence about Mr Pal’s dismissal and the reason for delay in filing his application, I marked the application as Exhibit A1. This was not opposed by WSA.

· A copy of Mr Pal’s termination letter dated 13 May 2024. This was provided to Mr Pal on 14 May 2024. I marked the termination letter Exhibit A2.

· An outline of argument – extension of time document…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 2106
Decision Date: 8 AUGUST 2024

CaseChat Overview and Summary

Adnan Pal brought an unfair dismissal claim against WSA Co Ltd (WSA) to the Fair Work Commission (FWC), alleging he was dismissed without a valid reason. WSA filed objections, arguing the application was out of time and Mr Pal was not protected from unfair dismissal under the Fair Work Act 2009. The FWC conducted a determinative conference to decide if Mr Pal should be granted an extension of time to file his application. The Commission considered whether there were exceptional circumstances to allow the extension, weighing factors such as the reason for the delay, prejudice to the employer, and the merits of the application. The Commission found Mr Pal did not provide a satisfactory reason for the delay, and the merits of his application weighed against granting an extension. The Commission concluded there were no exceptional circumstances and dismissed the application. The Commission also noted that Mr Pal may be entitled to redundancy pay, as his dismissal appeared to meet the redundancy definition in the Fair Work Act, despite being employed under a maximum term contract.

Mr Pal represented himself, while WSA was represented by Steven Van Der Donk and Kirby Grattan. The determinative conference was held on 2 August 2024 via video. The Commission marked various documents as exhibits and considered submissions from both parties. The Commission issued a detailed decision, explaining its reasoning and findings. The application was dismissed, and the Commission suggested further consideration may be needed regarding Mr Pal’s potential entitlement to redundancy pay.

Orders