Deepak Shah v Maverick Biomaterials Pty Ltd
[2023] FWC 1549
•27 JUNE 2023
| [2023] FWC 1549 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Deepak Shah
v
Maverick Biomaterials Pty Ltd
(U2023/4340)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 27 JUNE 2023 |
Unfair dismissal application filed out of time – circumstances exceptional – extension of time for filing allowed
Mr. Deepak Shah (the Applicant) 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 for a remedy on the basis that he has been unfairly dismissed from his employment with Maverick Biomaterials Pty Ltd (the Respondent).
The Respondent has objected to the application on the ground that the application is out of time (the first jurisdictional objection). The Respondent also objected to the application on the basis that the Applicant’s dismissal was a case of genuine redundancy.
Before considering the merits of the application, the Commission must determine that the application was made within the 21-day time period prescribed by the FW Act or such further period as the Commission allows.[1] Objections in relation to whether a dismissal was a case of genuine redundancy must also be decided before the merits of an application are dealt with.[2]
After taking into account the views of the Applicant and the Respondent and considering whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference to determine the matter. The matter was listed for the determination of the first jurisdictional objection on 19 June 2023.
Permission to appear
The Applicant was self-represented at the conference. Mr. Hemmings, solicitor, sought permission to appear on behalf of the Respondent. The Applicant raised no objection to permission being granted and I determined that permission should be granted pursuant to s. 596(2)(a) of the FW Act.
Witnesses, Evidence and Submissions
The Applicant gave evidence on his own behalf at the conference. He also tendered a number of documents which were received into evidence without objection. The Respondent did not call any witnesses and relied on a single piece of documentary evidence, being correspondence from the Respondent to the Applicant dated 26 April 2023.[3] The Applicant filed brief written submissions in support of his application. The Respondent relied on the terms of the F3 Employer Response as its written submission.
When did the dismissal take effect?
The Respondent initially met with the Applicant on 26 April 2023 to advise that his position was to be made redundant, subject to further consultation with the Applicant. On 27 April 2023, the Respondent terminated the Applicant’s employment with immediate effect. This was confirmed by correspondence to the Applicant dated 27 April 2023.[4] It is not in dispute, and I so find, that the dismissal took effect on 27 April 2023.
When was the application made?
It is not in dispute, and I so find, that the application was made on 19 May 2023 when it was filed online by the Applicant.
Was the Application made within 21 days after the dismissal took effect?
The 21-day period prescribed for the lodgement of applications does not include the day on which the dismissal takes effect.”[5]
Given the dismissal took effect on 27 April 2023, the final day of the 21-day period was therefore 18 May 2023 and ended at midnight on that day.
Since the application was not made within 21 days of the date on which the dismissal took effect, I now need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[6]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 18 May 2023. The delay is the period commencing immediately after that time and extends until the lodgement of the application on 19 May 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[7]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[9]
Submissions
The Applicant submitted that the delay was primarily the result of an illness that he suffered from which commenced on or about the end of April 2023 and which lasted for a period of some 24 days. The Applicant also submitted that in the period immediately after his termination, he was preoccupied with attending to a serious medical condition that had been suffered by a relative who was visiting from overseas to attend the Applicant’s son’s wedding. The Applicant also submitted that he was emotionally disturbed by his dismissal and the manner in which he was treated and that this resulted in him miscalculating the number of days he had to complete his application.
The Respondent submitted that the Applicant had the opportunity to file an application in the period immediately following his dismissal and failed to do so. Moreover, the Respondent maintained that the Applicant had demonstrated that the illness which he relied on to explain his incapacity to file an application did not in fact prevent the Applicant from filing since his evidence was that the illness lasted for a period of 24 days and the application was filed well within that 24-day period.
Evidence
The Applicant’s evidence was that his relative was hospitalised in Sydney with cardiac problems from at least 25 to 27 April. The Applicant said his relative had flown in from overseas for the wedding and after he was released from hospital on 27 April, the Applicant had to arrange for accommodation for his relative in Sydney as the relative was not well enough to fly home. The Applicant remained in Sydney until 30 April to assist his relative before returning to his home at Dubbo on the evening of the 30 April.
The Applicant said that by this time he was developing symptoms of bronchitis. He said he visited his local general practitioner in Dubbo on 1 May and was prescribed a course of antibiotics and rest. He said he experienced breathing difficulties, was unable to sleep properly and was tired all the time. In his oral testimony the Applicant said that he suffered from fluid on the lungs “for at least initially 10 days, 10 to 12 days.” The Applicant said that when there were no signs of improvement in his condition he went back to his doctor on 10 May and was prescribed a broad-spectrum antibiotic which was to last another 14 days. He said that during this period he was in no condition to “read through the requirements of unfair dismissal and how it applied to (his) case”.[10] He said that by Friday 19 May he was feeling better and so logged on to the Commission’s website to see what had to be done to raise an application. He said at that time he counted Friday 19 May as the 21st day after his dismissal. He said that “a combination of his emotional state and severely impacted health resulted in the delay”.[11]
The Applicant tendered a medical certificate from his treating physician dated 28 May 2023.[12] The certificate provided that:
the Applicant had developed a severe chest infection at the end of April;
the Applicant had initially seen the doctor on 1 May and had had three subsequent visits and had taken multiple courses of antibiotics; and
the Applicant was very unwell in May and his physical and mental health were severely affected by his illness.
The Respondent did not put on any evidence relating to the reason for the delay and elected not to cross-examine the Applicant in relation to this or any other matter.
Findings
Having regard to the above, I find that the reasons for the delay were as described in the unchallenged evidence of the Applicant. The delay can be explained by events that occurred in the period 27 April until 18 May. That is, in the days immediately following his dismissal he was attending to his seriously ill relative, including arranging for that person to have suitable accommodation until the relative could return to their home country. By 30 April the Applicant’s own illness had manifested itself. By the time he had returned home, the Applicant’s condition had deteriorated and he took himself to his local medical practitioner for treatment. The Applicant’s evidence that his physical and mental condition in the period 1 to 18 May was such that he was incapable of preparing and filing an application was not challenged in cross-examination. It was supported by the medical certificate. I accept the evidence of the Applicant as to each of these matters. Aside from the evidence as to miscalculation of the time period which does not assist the Applicant, I conclude that these factors weigh in the Applicant’s favour.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. This weighs against a conclusion of exceptional circumstances.
What action was taken by the Applicant to dispute the dismissal?
The Applicant submitted that he took action to dispute the dismissal. He said that he was first advised that his position was to be made redundant on 26 April 2023 and he was asked to provide feedback about that decision the next day. The Applicant said that at the discussion about his termination on 27 April he said that, as a Team Leader, he should have been given an opportunity to discuss the possibilities for resolving the problems rather than being “handed a decision.” That recollection was not disputed by the Respondent. The Applicant said he also indicated at the point of termination that he should have been considered for an alternative position.[13] The Respondent disputed that a suitable alternative position was available in submissions, but did not challenge the Applicant’s version of the conversation in cross-examination.
There was no evidence to show that the Applicant took any other steps beyond this to dispute his dismissal until the application was filed.
The Respondent submitted that the first they became aware that the Applicant was disputing the dismissal was when they received the Form F2.[14]
Findings
Based on the evidence, I find that the Applicant took some limited steps to dispute the dismissal at the point of termination but otherwise took no further action until the application was filed on 19 May 2023. The limited steps taken weigh in the Applicant’s favour.
What is the prejudice to the employer (including prejudice caused by the delay)?
It was conceded by the Respondent, and I conclude, that in the circumstances there would be no prejudice to the Respondent if an extension of time were to be granted. However, it is well settled that mere absence of prejudice to the Respondent is not, without more, a sufficient basis on which to grant an extension of time.[15] Nonetheless, I regard the absence of prejudice as weighing in the Applicant’s favour to a limited degree in the overall assessment.
What are the merits of the application?
The material going to the merits of the application is limited. The Applicant had commenced employment with the Respondent in April 2017 and so had been employed by them for six years. The Applicant submitted that the Commission should take into account the fact that he was terminated whilst he was on leave, that as a Team Leader he should have been given an opportunity to participate in the decision-making and that he should have been considered for an alternative position rather than being terminated. The Applicant’s evidence was that he believed he was not given a genuine opportunity to argue for an alternative course of action as the decision had already been made and the consultation process was a mere formality. The Applicant’s evidence on these issues was not challenged by cross-examination.
The Applicant said that he disputed the notion that his position was no longer required. He relied on a series of text messages that showed he was being asked for information about various aspects of unfinished work after his termination. He said that this demonstrated he was “in the middle of completing critical customer related reports” and that “no-one from (his) team could have completed that.”
The Respondent relied on the letter of 26 April 2023 titled “Consultation – Notice of Changes.”[16] The letter referred to “a significant reduction in client demand which has necessitated a restructure and downsizing of the business.” The Respondent also relied on the correspondence of the 27 April from the Respondent to the Applicant which included the following:
Redeployment
As discussed at our meeting, Maverick has considered the potential for you to be employed in an alternative role. We confirm however, that Maverick has not identified any available roles which are suitable to your skills and is not an option in all the circumstances.
The Respondent made various submissions going to the genuineness of the decision to make the Applicant’s position redundant. However, beyond the material described in the preceding paragraph, there was no evidence from the Respondent that assists me in forming a view about that issue for the purposes of the present proceeding.
Findings
In my view, any determination as to the merits of the application will largely turn on the question of whether the termination was a case of genuine redundancy. Given the present state of the evidence and in the absence of a hearing about that issue, an assessment of the merits of the application is not without its difficulties. However, on the basis of limited material available, and discounting the text messages relied on by the Applicant, I am satisfied that the Applicant has at least an arguable case that he was unfairly dismissed, particularly given the procedural aspects of the termination, including limited notice, limited consultation or discussion about alternatives and terminating the Applicant while he was on leave. I conclude that this factor weighs in favour of an extension of time.
Fairness as between the Applicant and other persons in a similar position
The Applicant was unable to say whether other employees of the Respondent who were made redundant or offered alternative work were given an opportunity to discuss the situation before a decision was made. The Respondent made a submission that 11 other employees were made redundant on the same day as the Applicant and that none of those had made a claim that their dismissal was not a case of genuine redundancy. However, there was no evidence from the Respondent going to this point. In relation to this factor, I regard this as a neutral consideration in my assessment of whether there are exceptional circumstances.
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.[17] 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.[18]
In this matter the Respondent urged a conclusion that exceptional circumstances did not exist and directed my attention to what was said to be an analogous situation involving the illness of an Applicant in the matter of McInnes v. Oracle Group (Australia) Pty Ltd.[19] That matter is distinguishable on the facts. In McInnes, the Applicant’s medical certificate covered the Applicant for the first part only of the 21-day time period. The Commission concluded that the Applicant in that matter had three days at the end of that period that were not covered by the medical certificate in which an application could have been lodged. Had the certificate covered the entire period the Commission indicated that it may have been minded to grant the extension. Moreover, the Commission in McInnes concluded that the illness in question was not of a kind that would have prevented the Applicant from completing an application since she had the capacity to prepare a detailed response to correspondence from her employer during the period covered by the certificate.
In this matter, the Applicant provided a credible explanation as to why he did not lodge an application in the three days immediately following his dismissal. He was dealing with a seriously ill relative. Whilst evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances, I am satisfied that the misfortune in this case seriously impeded the Applicant from lodging an unfair dismissal application in the first three days following the dismissal.[20] Further, the Applicant’s medical certificate covered the remainder of the 21-day period and, unlike the situation in McInnes, there was nothing to contradict the Applicant’s evidence that his illness was of a level of seriousness that prevented him from filing an application.
On balance and having regard to each of the various matters that I am required to consider under s. 394(3), I am satisfied that there are exceptional circumstances that warrant an extension of time. I consider that I should exercise my discretion and allow an extension of the time period for the filing of the application in this matter to midnight on 19 May 2023.
The matter will be relisted for programming to deal with the outstanding “genuine redundancy” objection and the merits of the matter on a date to be fixed.
DEPUTY PRESIDENT
Appearances:
Mr Deepak Shah, on his own behalf
Mr Cawley Hennings, Respondent Solicitor
Ms Katelyn Wilson, for the Respondent
Hearing details:
By video using Microsoft Teams on Monday, 19 June 2023 at 9:00am AEST.
[1] ss 396(a), 394(2)-(3).
[2] s 396(d).
[3] Exhibit R1.
[4] Exhibit A2.
[5] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’).
[7] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[8] Stogiannidis (n 6).
[9] Ibid [40].
[10] Exhibit A3.
[11] Exhibit A5.
[12] Exhibit A4.
[13] Exhibit A5.
[14] Respondent’s Response Form F3.
[15] Brodie Hans v. MTV Publishing Ltd (1995) 67 IR 298.
[16] Exhibit R1.
[17] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[18] Ibid.
[19] [2021] FWC 6586.
[20] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
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