Dang Le v Bystronic Australia
[2025] FWC 234
•29 JANUARY 2025
| [2025] FWC 234 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dang Le
v
Bystronic Australia
(U2024/14793)
| COMMISSIONER MIRABELLA | MELBOURNE, 29 JANUARY 2025 |
Application for an unfair dismissal remedy
On 9 December 2024, Mr Dang Le (the Applicant) filed in the Fair Work Commission (the Commission) an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).
The Applicant disputes that he filed his application outside the statutory period because he asserts that he was dismissed on a later date than the effective termination date in his Form F2. Section 394(2) states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or such further period as the Commission allows pursuant to s.394(3). Prior to my consideration of the matters in s.394(3), I must determine the date of dismissal.
The matter was dealt with by way of determinative conference on 16 January 2025 at which the Applicant gave evidence in support of his application. Although the Respondent did not file any submissions in opposition to the application, in their Form F3 they maintained the termination date was 15 November 2024 and at the determinative conference opposed the Applicant’s application.
In his Form F2, the Applicant lists the date on which he was notified of his impending dismissal as 4 November 2024 and his effective date of dismissal as 15 November 2024. Bystronic Australia Pty Ltd (the Respondent) agrees with these dates for notification and dismissal. If the date of dismissal is accepted as being 15 November 2024, the application was filed 3 days out of time.
Subsequent to the filing of his application, the Applicant submitted that his effective date of dismissal was 18 November 2024 and that because the 21st day after 18 November 2024 fell on a weekend, he had until 9 December 2024 to file within the statutory time allowed. The Applicant gave evidence that he believed his last day of employment was 18 November 2024 because among other things, he needed to attend a client of the Respondent in Dandenong to collect tools left behind and submit the work case report – effectively a timesheet and report of the work carried out. This was required in order for the employer to have the relevant information to invoice the client.
The Respondent submits that the Applicant knew he was dismissed with the effective date of 15 November 2024 because he signed the termination letter and was paid 5 weeks’ pay in lieu of notice. It submits that the termination letter is unambiguous where it states:
‘…your employment ceases at the conclusion of this process, i.e. Friday 15th November 2024…’[1]
At the determinative conference, I asked the Applicant when he believed he had been dismissed. The Applicant said words to the effect that he always believed he had been dismissed on 18 November 2024. The Applicant was later asked why he had listed 15 November as his effective dismissal date in his Form F2. After some unclear responses, the Applicant said words to the effect of ‘I got no reason, I just made a mistake.’
I do not find the Applicant’s explanation that he made a mistake in his Form F2 credible. Further, his demeanour whilst giving evidence was not convincing. He signed the letter of termination; he knew his last day at work was 15 November and that he was paid in lieu of notice. Accordingly, I find that the date of dismissal was 15 November 2024. In order for the application to proceed, the Applicant requires an extension of time.
The Commission may only allow a further period within which to file if it is satisfied that there are exceptional circumstances, taking into account:
The reason for the delay,
Whether the person first became aware of the dismissal after it had taken effect,
Any action taken by the person to dispute the dismissal,
Prejudice to the employer (including prejudice caused by the delay),
The merits of the application, and
Fairness as between the person and other persons in a similar position.
In deciding on whether there are exceptional circumstances, I must consider and give appropriate weight to each of the matters in s.394(3). These are circumstances that are ‘out of the ordinary course, or unusual, or special, or uncommon’ but that ‘need not be unique, or unprecedented, or very rare’
Relevant factors
Section 394(3)(a) – The reason for the delay
The Applicant did not give a reason for the delay because he asserts there was no delay.[2]
The Applicant has not established an acceptable reason for any part of his delay in lodging his application. This factor weighs against the application for an extension of time.
Section 394(3)(b) – Whether the Applicant first became aware of the dismissal after it had taken effect
The Applicant does not dispute that he was advised both orally and in the termination letter that his dismissal took effect on 15 November 2024. Further there is no dispute that the Applicant signed the termination letter on 15 November 2024. I will treat this as a neutral consideration.
Section 394(3)(c) – Any action taken by the person to dispute the dismissal
Other than filing the application late, the Applicant did not take any action to dispute his dismissal and I consider this a factor tending to weigh against a finding of exceptional circumstances.
Section 394(3)(d) – Prejudice to the Respondent
The Applicant did not make any submissions regarding this fact. At the determinative conference the Respondent submitted that that the exercise of the discretion to extend the time for filing the application would cause prejudice to the Respondent because of the unnecessary time and costs associated with defending their position. I am not convinced by this submission, and accordingly treat this as a neutral consideration.
Section 394(3)(e) – The merits of the application
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested, but the merits are nonetheless a factor I am required to take into account in assessing whether there are exceptional circumstances.
The Applicant states in his Form F2 that:
‘I believe the service manager also had a personal reason to remove me from the company. I am one of the busiest employees there. I also have higher skills than the other engineers. At the same time, Bystronic was engaging contractors to do exactly my job. They also hire new sales manager. No offer of other alternative to redundancy.’
The Respondent submits that the Applicant was made redundant because of financial necessity and that the Applicant was chosen to be made redundant because he was assessed by a skills matrix test as being less skilled than another employee.
I do not reflect on the merits of the matter in any certain way and, at their highest, they must be taken to be of neutral weighting in my consideration of all relevant factors.
Section 394(3)(f) – Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
In the present case, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In all the circumstances I will treat it as a neutral consideration.
Are there exceptional circumstances?
Exceptional circumstances may 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 can be considered exceptional.
Having regard to all the matters in s.394(3) of the Act and the foregoing, I am not satisfied that there are exceptional circumstances in this case such that I allow the Applicant additional time within which to make his application.[3]
Conclusion
Having found that there are no exceptional circumstances in this case, I cannot grant an extension of time to allow the Applicant to file beyond the statutory period. Accordingly, the application is dismissed.
An order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Applicant
D Le – Applicant
Respondent
J Kahonde
A Wallace
Hearing details:
16 January 2pm
Final written submissions:
13 January 2024
[1] Page 28 of the Court Book.
[2] Nulty v Blue Star Group[2011] FWAFB 975 (Nulty), [13].
[3] Nulty at [13].
Printed by authority of the Commonwealth Government Printer
< PR783661>
0
0
0