Daniel Madanat v R F Industries Pty Ltd
[2024] FWC 698
•18 MARCH 2024
| [2024] FWC 698 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Madanat
v
R F Industries Pty Ltd
(U2024/1506)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 18 MARCH 2024 |
Application for unfair dismissal remedy – application made more than 21 days after the dismissal took effect – extension of time
On 13 February 2024, Daniel Madanat (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) with the Fair Work Commission (Commission). The Applicant’s former employer and respondent to the application was R F Industries Pty Ltd (Respondent).
An application for an unfair dismissal remedy must be made within 21 days after the dismissal takes effect, or within such further period as the Commission allows.[1]
It was not in issue that the Applicant’s dismissal took effect on 19 January 2024. In that case, for the application to have been made within the prescribed time limit, it had to be filed on or before midnight on 9 February 2024.
The Respondent objected to the application on the basis that it was made outside the 21-day time limit prescribed by s.394(2) of the Act and argued that an extension of time should not be allowed. I am satisfied that the application was made four days outside the 21-day time limit.
No issue was raised about the Applicant being otherwise protected from unfair dismissal under s.382 of the Act and I am satisfied that he was so protected.
Directions were made that the parties file and serve evidence and submissions going to the issue of whether an extension of time should be granted. The matter was heard on 14 March 2024.
This decision deals only with the question of whether or not the time for the making of the application should be extended.
Background
The Applicant commenced employment with the Respondent on 9 February 2021. At the time of his dismissal, he was employed as a Team Leader/Supervisor in the services department of the Respondent.
The Applicant’s employment came to an end abruptly on 19 January 2024 when he was told by the Respondent that his position was being made redundant. The Applicant disputed that his position was genuinely redundant. He alleged that a series of previous incidents, including an interaction with management over his working hours and a request for a pay rise were the real reasons for his termination. The Respondent maintained that the redundancy was genuine.
Legislation
Section 394 of the Act provides that the Commission may allow a further period for an application for an unfair dismissal remedy to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
I deal with these criteria below.
Reason for the delay
The Applicant provided six reasons in writing for the delay. These are reproduced below:
(i)Illness of Child -: My son, was unwell from January 23 to February 9. I have attached a letter from his school confirming his absence due to illness during this period.
(ii)Illness of Another Child -: On February 9, my other son, fell ill, requiring urgent medical attention for which I have provided a receipt from Chemist Warehouse for the purchase of a Ventolin puffer.
(iii)Care Responsibilities Post-Recovery: Although both children resumed school on February 12, heightened restrictions on sick children's attendance required my continuous care at home. My wife was unable to take leave from work, which further limited my capacity to research and pursue legal advice regarding unfair dismissal.
(iv)Personal Illness - COVID-19: I contracted COVID-19 and experienced severe symptoms from January 22 to January 31. The nature of the illness and public health guidelines prevented me from seeing a doctor in person, making it impossible to obtain a medical certificate.
(v)Seeking Legal Advice: I contacted the Illawarra Legal Centre on multiple occasions (February 1, 2, 6, and 8) seeking guidance on how to proceed with an unfair dismissal claim. My call records, which I have attached, substantiate these efforts.
(vi)Technical Difficulties in Submission: Finally, with assistance from a lawyer within my church community on February 11, I attempted to submit my application. However, due to technical issues (attached screenshot – form was just not saving even after multiple attempts) encountered on February 12, the submission was unfortunately delayed until February 13.
The above reasons were expanded upon and supplemented by brief oral evidence from the Applicant. The Applicant said that January 2024 was an unsettled period as he and his family had recently relocated into a new area, his children had enrolled in new schools/pre-schools and his wife had taken on a new job. The following matters emerged from the Applicant’s cross-examination by the Respondent:
The illnesses of his sons were managed by him at home. There were no medical certificates or records (other than the pharmacist’s receipt) of the illnesses of the children or the Applicant’s own illness.
(ii)The Applicant did not attend the local medical practice when he had COVID-19 as there were often elderly patients there and he did not want to put them at risk. There were limited bulk-billing facilities. The Applicant managed his own symptoms following previous advice he had received about COVID-19.
The Applicant did not think he was going to proceed with an unfair dismissal application in the period he was suffering from COVID-19.
(iv)The illnesses of the children were not of a kind that meant that the Applicant could not attend to any other responsibilities during that period.
The Applicant’s children had recovered from their illnesses by 11 February 2024.
(vi)The Applicant did not keep track of the public health guidelines relating to COVID-19.
The Applicant spoke with a solicitor at the Illawarra Legal Centre (Centre) on two occasions about a possible unfair dismissal application. He was made aware that there was a 21-day time limit on applications during these conversations. The Applicant waited for a call back from the Centre and was ultimately told that they were unable to take on his case.
The first attempt the Applicant made to file an application was late on the evening of 12 February 2024 after he had obtained some assistance from a friend. The two or three attempts at that time were not successful because the Applicant had technical difficulties with the online lodgement process. The application was ultimately filed on 13 February 2024.
The Respondent provided evidence of NSW Government public health advice as at 24 January 2024. The advice said there was no requirement to self-isolate if a person tested positive for COVID-19, but that it was recommended that an affected person stay at home until symptoms had passed and take steps to protect others.
The Applicant argued that the circumstances he faced following his termination meant he was unable to move quickly enough to file an application in time. He said he did not “sit on his hands” but took some active steps to bring the application by approaching the Centre. The Applicant said he was not aware that weekends and public holidays counted as part of the 21-day time limit.
The Respondent submitted that medical evidence is generally required where a party seeks to rely on an illness to explain delay.[2] They said that there was insufficient evidence to conclude that the Applicant’s own illness was at a level of severity that would hinder him from filing an application on time.[3] Further, it was argued that people having to deal with sick children was not an exceptional situation and the need to provide medication such as Ventolin to children was a common occurrence.
The Respondent said the Applicant accepted that he was capable of attending to things such as managing the illness of his children, attending church and speaking to a legal centre about his rights and that this showed he was not incapable of filing an application on time.[4] They said the Applicant was unable to account for the period of the delay, that is the period after the expiry of the 21-day period to the date of the filing of the application and that the technical issues the Applicant referred to was, at its highest, a “point-in-time” difficulty that accounted for a very limited part of the delay. The Respondent referred to Commission an authority that said that the completion of an unfair dismissal application was not an onerous task.[5]
The Applicant appeared to me to be a truthful witness. He gave direct answers in cross-examination. He did not embellish his version of events and gave evidence which he would have known was not necessarily going to assist his case. I conclude that in the period preceding the expiration of the time limit the Applicant was still able to carry out ordinary tasks notwithstanding the periods of illness experienced by him and his family. I note that by as early as 2 February or at the latest 6 February, the Applicant was aware of the time limit that applied. It is also noteworthy that there was little by way of explanation for the period after 9 February when the application was due, aside from a one-off difficulty with online lodgement. Whilst I accept that the Applicant experienced some difficulties in the period after his termination, even putting the Applicant’s evidence at its highest, I do not think that the reasons for the delay, individually or combination, favour a conclusion that there were exceptional circumstances in this case.
Whether the Applicant first became aware of the dismissal after it had taken effect
The Applicant was dismissed on 19 January 2024. He was told about his termination on that day and was given a termination letter on the same day stating that his termination took immediate effect. The Applicant was therefore aware of the dismissal on the date it took effect and had the benefit of the full 21-day period to lodge his application. This weighs against a conclusion that there are exceptional circumstances justifying an extension of time.
Any action taken by the Applicant to dispute the dismissal
The Applicant conceded that he did not make any contact with the Respondent in the period after his dismissal but before he filed the application. He did not take steps to dispute the dismissal and the Respondent only became aware that the dismissal was disputed when it was served with the application. This does not weigh in the Applicant’s favour.
Prejudice to the employer
The Respondent accepted that there was no relevant prejudice to them as a result of the delay in making the application. I regard this as a neutral consideration in this case.
Fairness as between the Applicant and other persons in a similar position
The Applicant did not point to other persons in a similar position. I regard this as a neutral consideration.
Merits of the Application
The Applicant said his redundancy was not genuine. He said the real reason for his termination were factors such as his access to flexible work arrangements and a request for a pay rise. He said the Respondent was actively recruiting people for similar positions to his when he was terminated.
The Respondent said a review of the Services Department had been undertaken and it was decided as a result of the review that the Applicant’s position was no longer required. They said that two other positions were also made redundant. The Respondent said that another position was being advertised at around the same time but that this was a technical position, being a radio technician with skills in the VHF and IHF range, which skills the Applicant did not have. They said that the possibility of redeployment for the Applicant was considered but nothing suitable was identified. They said that no award or agreement covered the Applicant and that he was paid redundancy pay and pay in lieu of notice in accordance with the National Employment Standards (NES).
It is not possible to come to a definitive view about the merits of the application given the present state of the evidence. That would require a full hearing and a more in-depth consideration of whether this was a case of genuine redundancy, including whether it would have been reasonable in the circumstances to redeploy the Applicant. I regard the merits as a neutral consideration in the overall assessment.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 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.
Conclusion
Having regard to the conclusions I have reached on each of the various matters above I am of the view that there are no exceptional circumstances to justify an extension of time in this case.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr D. Madanat for the Applicant.
Mr D. Kensey, Solicitor for the Respondent.
Hearing details:
By Video using Microsoft Teams at 10:00am AEDT on Thursday, 14 March 2024.
[1] Section 394(2).
[2] Jones v. Valley Health Care Group Pty Ltd[2022] FWC 2102.
[3] Kenney v. Marshall Electric[2022] FWC 2664.
[4] Kapuria v. Trajan Scientific Australia Pty Ltd[2020] FWC 4726.
[5] Reid v. RTC Construction Pty Ltd[2021] FWC 5147.
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