Dan Le Tran v A-Gas (Australia) Pty Ltd T/A A-Gas Australia

[2015] FWC 820

[2015] FWC 820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dan Le Tran
v
A-Gas (Australia) Pty Ltd T/A A-Gas Australia
(U2014/15806)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Mr Dan Le Tran alleged that the termination of his employment by A-Gas (Australia) Pty Ltd was unfair.

[2] Mr Tran’s employment with A-Gas ended on 17 November 2014. His application was lodged on 9 December 2014. The unfair dismissal application was therefore not made within 21 days of the date of the dismissal

[3] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must have regard to the following criteria.

The reason for the delay

[4] Mr Tran’s solicitor 1 filed a witness statement and was not required for cross examination. In that witness statement Mr Maniatis advised that Mr Tran consulted Zaparas Lawyers on 21 November 2014 about his termination. Zaparas Lawyers represented Mr Tran in relation to his workers compensation claims. He instructed his lawyers to prepare his unfair dismissal claim. A conference was organised with a barrister for 24 November 2014 and the completed application form was provided to Mr Tran to sign on 4 December 2014. On 5 December 2014 the application was posted by registered post to the Commission. It was expected that the application would be received on 8 December 2014 and hence it would arrive in time. In fact the application was delivered on 9 December and hence was one day late.

[5] Mr Tran relies upon representative error to explain the delay. He submitted that he was blameless in this regard. He had signed the form in sufficient time to enable it to be lodged in time.

[6] It was submitted by A-Gas that as there was no evidence filed by Mr Tran I could not be satisfied as to the reason for the delay. I do not accept that submission. It is clear from the uncontested evidence of Mr Maniatis that Mr Tran did all he could reasonably have been expected to do. He consulted a lawyer and acted on their advice. He signed the application in sufficient time to allow it to be lodged within the 21 days.

[7] This is not a case where it could be said that Mr Tran sat on his hands and took no steps as to enquire as to the status of his application.  2 There was no way Mr Tran could have known that his lawyers would not be aware that they could file his application by fax, email, electronically or by phone. Nor could Mr Tran have been aware that the application had not been filed in time.

[8] I find that the reason for the delay weighs in favour of granting an extension of time.

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

[9] Mr Tran was aware of the dismissal at the time it took effect and had the full 21 days to lodge his application. This weighs against granting an extension of time.

Any action taken by the person to dispute the dismissal

[10] Mr Tran promptly sought legal advice. However, there is no evidence that he disputed his dismissal with his employer at the time. This criterion is neutral.

Prejudice to the employer

[11] A-Gas submitted that it will suffer prejudice in being required to defend what was a genuine redundancy situation and if time is extended A-Gas will be put to the time and expense of defending the claim when 9 positions have been made redundant since 2 September 2014. While I accept that extending time would prejudice the employer because A-Gas will not have to defend an unfair dismissal claim, I do not consider the prejudice is sufficient to weigh against the granting of an extension of time.

The merits of the application

[12] Mr Grahame Gordon 3 A-Gas’s managing director filed a witness statement and was not required for cross examination.

[13] It was his uncontested evidence that there had been a downturn in the business and there had been 2 meetings with all employees advising them of position of the business and possible redundancies. On 5 November 2014 at a further meeting he advised all employees that there would be redundancies.

[14] The 15 factory operators were then ranked against certain criteria and Mr Tran was one of the 4 people selected for redundancy. All employees were told on 17 November 2014 that 4 positions were redundant and advised that there were no redeployment opportunities. Mr Gordon then met with Mr Tran and told him he was redundant. Mr Tran was given an opportunity to ask questions and he was then provided with his notice of termination. Mr Tran was paid his entitlements including his redundancy pay plus an additional ex gratia payment of 2 weeks’ pay. He was further offered, but declined, outplacement services. Mr Gordon advised that a total of 9 employees had been made redundant during this period.

[15] Mr Tran nor his solicitor gave any evidence about the merits of his claim. In his application Mr Tran said that someone was still doing his job and that there had not been consultation with him. In his application he said that he did not know prior to 17 November 2014 that he was going to be made redundant. It was also submitted that Mr Tran could have been redeployed.

[16] On the evidence before me Mr Tran’s case is very weak. While it may be that Mr Tran’s work has been redistributed to other employees that does not mean that A-Gas did not have operational reasons for reducing the number of staff. While it is not disputed that Mr Tran did not know that he had been selected for redundancy until the 17 November 2014 that does not mean that A-Gas did not comply with its obligations to consult. Mr Tran makes no reference to the meetings that were held prior to that date and he did not instruct his lawyers to cross examine Mr Gordon on this evidence or to put before the Commission evidence to contradict this evidence. There is nothing beyond a mere assertion by Mr Tran that he could have been redeployed. However as there are contested facts, as evidenced by Mr Tran’s application, I am not prepared to conclude that Mr Tran’s case is bound to fail.

[17] The weakness of Mr Tran’s case does not weigh in favour of granting an extension of time.

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

[18] A-Gas submitted that the other employees made redundant at the same time have not made claims for unfair dismissal. Despite this, I consider this criterion is neutral.

Conclusion

[19] On balance I consider that there are exceptional circumstances. I do so despite, on the evidence currently before me, the weakness of Mr Tran’s case. I consider that the other factors, particularly the reason for the delay, tip the balance in finding that there are exceptional circumstances.

[20] It was submitted that it was the very weakness of Mr Tran’s the case that should cause me not to exercise my discretion to grant Mr Tran an extension of time. This was particularly in circumstances where, if A-Gas does not establish that there was a genuine redundancy, it will be because of a failure to consult (thought that was not admitted by A-Gas). In those circumstances were reinstatement was not possible any compensation would be minimal and Mr Tran had received an ex gratia payment of 2 weeks.

[21] I do not accept that submission as it is premised on the notion that the consultation would not change the outcome. Without hearing the evidence such a conclusion is not possible.

[22] I am therefore prepared to exercise my discretion to grant Mr Tran an extension of time to 9 December 2014 to lodge his application. The application will now be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

E Tueno representing Dan Le Tran

N Chadwick representing A-Gas (Australia) Pty Ltd t/a A-Gas Australia

Hearing details:

2015;

Melbourne;

30 January

 1   Exhibit A1.

 2 Robinson v Interstate Transport Pty Ltd [2011] IR 347 at [25]

 3   Exhibit R1

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