Deraine Rodrigo v KDR Victoria Pty Ltd

[2021] FWC 6459

[2021] FWC 6459

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deraine Rodrigo
v
KDR Victoria Pty Ltd
(U2021/9142)

DEPUTY PRESIDENT COLMAN MELBOURNE, 25 NOVEMBER 2021

Unfair dismissal – application for extension of time – exceptional circumstances

[1] This decision concerns an application made by Mr Deraine Rodrigo for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Rodrigo’s employment with KDR Victoria Pty Ltd, which trades as Yarra Trams (company), was terminated with effect from 20 September 2021, for the reason that he was unable to perform the inherent requirements of his job as a tram driver. Section 394(2) of the Act states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 11 October 2021. Mr Rodrigo’s application was lodged on 12 October 2021, one day out of time. In order for Mr Rodrigo’s application to proceed, he requires the Commission to grant a further period of time within which to bring his application.

[2] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances.’ I adopt the approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. I note that the requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is fair to do so.

[3] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: 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. I will consider each of these matters as they pertain to Mr Rodrigo’s application.

[4] The Act does not indicate the reasons for delay that might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an acceptable or reasonable explanation. Mr Rodrigo said that the termination letter of 20 September 2021 had advised him that, under the Yarra Trams Enterprise Agreement 2019 – Operations (2019 Agreement), he could appeal the decision to terminate his employment by making a request in writing to the chief executive officer within 48 hours, which he proceeded to do. Mr Rodrigo said that he followed up on his internal appeal with an email on 3 October 2021 and was told that the company would let him know the outcome in due course. Mr Rodrigo said that on 12 October 2021, he received an email message from Ms Deborah Kingdom on behalf of the company, which stated that the internal appeal process did not in fact apply to his case, because he had not been dismissed for misconduct or unsatisfactory performance, and that the advice in the termination letter that an internal appeal was available to him had been wrong. The email from Ms Kingdom went on to state that Mr Rodrigo could file an unfair dismissal claim but noted that such a claim must be made within 21 days of the dismissal. It was now 22 days since the dismissal had taken effect. Mr Rodrigo filed an application later the same day. In his unfair dismissal application, Mr Rodrigo said that he had been unaware of his right to bring an unfair dismissal claim against the company until he was told about this in the email from Ms Kingdom on 12 October 2021. At the hearing, Mr Rodrigo’s daughter, who spoke for him, suggested that it was in fact the 21-day filing requirement of which he was unaware. Mr Rodrigo’s application also said that he had been a ‘total mess’ since his dismissal and that he was currently experiencing bouts of depression.

[5] The company contended that Mr Rodrigo’s ignorance of his right to bring an unfair dismissal application was not an acceptable reason for delay, and that he could have made inquiries or sought legal advice about his rights following his dismissal but did not do so. It submitted that Mr Rodrigo could not rely on his own inaction and lack of diligence as an acceptable reason for this delay. It further contended that there was no evidence that Mr Rodrigo’s mental state had prevented him from filing his unfair dismissal claim. The company submitted that, although the termination letter had contained an erroneous reference to the availability of an appeal, it was the conduct of the applicant that was relevant in an application to extend time, and that Mr Rodrigo had chosen to sit on his hands. It submitted that none of the circumstances referred to by Mr Rodrigo as explaining the delay in filing his unfair dismissal application were reasonable or exceptional.

[6] It is well established that a person’s unawareness of the possibility of making an unfair dismissal application or the requirement to lodge an application within 21 days of dismissal is not an acceptable reason for delay. Information about filing unfair dismissal applications, including the 21-day lodgement requirement, is available on the Commission’s website. Further, I am not persuaded that Mr Rodrigo’s mental state prevented him from lodging his application on time. He has not filed any medical evidence demonstrating that this was the case.

[7] A peculiar circumstance of the present case is that the company’s advice to Mr Rodrigo that he could appeal his dismissal to the CEO was wrong. It was not until the day after the 21-day period had expired that the company told Mr Rodrigo that in fact he had no internal right of appeal, and that he could instead pursue an unfair dismissal claim. There was no obligation on the company to advise Mr Rodrigo of his unfair dismissal rights, either within the 21-day period or at all. And the fact that a person pursues an internal appeal is not of itself an acceptable reason for delay in lodging an unfair dismissal claim. The company is correct to say that Mr Rodrigo could have made relevant inquires, or sought legal advice, and filed an unfair dismissal claim on time while his internal appeal was being considered.

[8] However, although the company was not required to give Mr Rodrigo advice about how to challenge his dismissal, it should not have given him wrong advice. The company told Mr Rodrigo that he had a right of internal appeal, when he did not. The information that Mr Rodrigo had when considering how to challenge his dismissal was distorted by the company’s error. Mr Rodrigo acted on this wrong information and brought an appeal that was not available to him. In my view, had the company not made the mistake it did, there is a reasonable possibility that Mr Rodrigo would have paid greater attention to exploring other ways to challenge his dismissal and discovered the relevant information about unfair dismissal applications and the requirement of lodgment within 21 days. It is also relevant that the company was not diligent in correcting its error, even after Mr Rodrigo’s inquiry of 3 October 2021, and only advised him of the fact that he had no internal right of appeal on 12 October, one day after the 21-day period had elapsed. It is true that in considering an application to extend time, the focus should be on the action (or inaction) of the applicant, but it would be wrong to ignore the conduct of the employer. In this case, the company misled Mr Rodrigo about the options available to him to dispute his dismissal. He did not ‘sit on his hands’, as the company contended. He chose to challenge his dismissal in the manner that the company had suggested. Had he known that there was in fact no possibility of an internal appeal, Mr Rodrigo could have considered his options in their proper light. In these unusual circumstances, I consider that there is a reasonable explanation for the delay. This weighs in favour of an extension of time.

[9] In relation to the consideration in s 394(3)(b), Mr Rodrigo said that he only received the termination letter on 22 September 2021, two days after the dismissal took effect. He acknowledged however that on 16 September 2021 he had received a telephone call from Mr Andrew Brown advising him of his termination with effect from 20 September 2021. Mr Rodrigo asked Mr Brown if he could retire. Mr Brown said that he could, but that a resignation letter would be required by 17 September 2021. On 20 September 2021, Mr Rodrigo told Mr Brown that he did not wish to resign. What is important is that there is no dispute that Mr Brown told Mr Rodrigo on 16 September 2021 that his employment would end on 20 September 2021. The fact that the termination letter did not arrive until later is irrelevant. Mr Rodrigo had the benefit of the full 21-day period to lodge his application. The consideration in s 394(3)(b) is a neutral factor.

[10] The consideration in s 394(3)(c) weighs in favour of an extension of time: Mr Rodrigo took action to dispute his dismissal by bringing an internal appeal to the CEO.

[11] The considerations in ss 394(3)(d) and (f) are neutral matters: there is no evidence of prejudice to the employer, and I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Rodrigo and other persons in a similar position.

[12]  In considering whether there are exceptional circumstances, the Commission must take into account the merits of the application (s 394(3)(e)). Mr Rodrigo submitted that his dismissal was unfair because he had been employed as a tram driver for 34 years and had been unable to work since July 2020 due to a physical inability to perform his duties. At the extension of time hearing, Mr Rodrigo explained that he has a calcium build up on his coccyx which makes it painful for him to sit. He said that this condition requires surgery which is considered elective and has been delayed due to the COVID-19 pandemic. He said that since July 2020 he has undergone three surgical procedures and that, at the time of his dismissal, he was awaiting a fourth procedure. Mr Rodrigo said that he had kept the company informed of his situation and that he had not been a financial burden because he has been on unpaid leave since 29 August 2020. Mr Rodrigo said that he was suddenly advised of his imminent termination and dismissed for a reason related to his incapacity.

[13] The company submitted that Mr Rodrigo had not worked since 25 June 2020, was unable to perform the inherent requirements of his job and had not cooperated with the company’s efforts to understand his condition. It said that in June, July and August 2021, Mr Brown had contacted Mr Rodrigo on numerous occasions to obtain information about his capacity to perform the requirements of his role and that Mr Rodrigo declined to provide the requested information. In a letter dated 7 June 2021, Mr Brown requested that Mr Rodrigo provide information from his own treating doctor concerning his medical condition and fitness for work and requested Mr Rodrigo’s doctor to answer a number of questions, noting that the company would pay for the doctor’s report. On 15 June 2021, Mr Rodrigo submitted a medical certificate which stated simply that he was unfit for duty and that an assessment of his condition would be made after his surgery. In another letter to Mr Rodrigo dated 19 July 2021, Mr Brown stated that the medical certificates submitted by Mr Rodrigo did not include any information about the nature of his medical condition or why he was unfit to perform his duties, and that in the circumstances Mr Rodrigo was required to undergo a medical assessment with a company appointed doctor on 3 August 2021. Mr Rodrigo refused to attend an assessment until after his surgery. At the hearing, Mr Brown said that Mr Rodrigo had told him only that he had a problem with sitting for more than five minutes, but that prior to the hearing he had not known that the problem concerned calcification of the coccyx.

[14] The company submitted that, based on the information provided to it by Mr Rodrigo, it concluded that he had no capacity for work, that he would not have such capacity for the foreseeable future, and that he was therefore unable to perform the inherent requirements of his position. On 11 August 2021, Mr Brown wrote to Mr Rodrigo and advised him that his ongoing absence from work was affecting operational requirements, and that the company was considering terminating his employment, noting that its most recent information indicated that he had no capacity for work. Mr Brown requested Mr Rodrigo to provide any information that he wished the company to take into account in assessing whether he was able to perform his role. In response to this letter, Mr Rodrigo sent to Mr Brown a notice from Dandenong Hospital which, aside from Mr Rodrigo’s name and a bar code, is clearly a generic notice to patients advising that non-urgent category 2 and 3 elective surgery has been suspended.

[15] An application to extend time is in the nature of an interlocutory application (see s 396). My assessment of the merits is necessarily one that is made on a preliminary basis. However, based on the evidence adduced to date, it appears to me that Mr Rodrigo’s case is weak. It is undisputed that Mr Rodrigo had been unfit for work for over a year. He appears to have made little effort to engage with the company’s attempts to understand and assess his condition. In this regard, I note the absence of detail in the medical certificates submitted by Mr Rodrigo, his failure to have his own physician provide the required information to the company, his failure to attend a medical examination with a company doctor, and the scant information he submitted to the company after receiving Mr Brown’s letter of 11 August 2021.

[16] Mr Rodrigo contended at the hearing that information about his health condition was private. It is difficult to see how such a contention could be sustained. This information was relevant to Mr Rodrigo’s fitness for work and his ability to perform the inherent requirements of his job, both presently and in the future. Generally speaking, medical information relevant to an employee’s fitness for work can reasonably be requested by an employer and should be provided by an employee. Mr Rodrigo said at the hearing that he did not want to undertake a medical assessment before having his surgery because he would fail the assessment. But an employer is entitled to assess its employees’ fitness for work and make reasonable requests of them to undergo assessments. These can also provide insight into an employee’s prospects of returning to work, taking into account future medical interventions.

[17] It seems to me, based on the information presently before the Commission, that there is force in the company’s defence to Mr Rodrigo’s unfair dismissal application, namely that it dismissed Mr Rodrigo after a lengthy absence during which he did not cooperate with its efforts to assess his condition, and that the reason for dismissal was that, based on the information that Mr Rodrigo had provided, he could not perform the inherent requirements of his job as a tram driver. In my assessment, the merits of the application tell against an extension of time.

[18] Nevertheless, for the reasons mentioned earlier, there was a reasonable explanation for the delay in light of the company’s incorrect advice to Mr Rodrigo that he could bring an internal appeal against his dismissal. This weighs in favour of an extension of time, as does the fact that Mr Rodrigo took action to dispute his dismissal by bringing an internal appeal. The merits appear to be weak. However, I am satisfied that there are exceptional circumstances, because the company’s erroneous advice presented Mr Rodrigo with a distorted picture of the options available to him to challenge his dismissal. But for this advice, he may well have acted differently. As I am satisfied that there are exceptional circumstances, the discretion to extend time under s 394(3) is enlivened and, on rather fine balance, I consider it appropriate to exercise it. In my view, despite his apparently weak case, Mr Rodrigo should have the opportunity, considering also his 34 years of service, to have his unfair dismissal application determined on the merits. Mr Rodrigo’s unfair dismissal application will shortly be programmed for hearing.

DEPUTY PRESIDENT

Appearances:

D. Rodrigo for himself
E. Mentiplay for the respondent

Hearing details:

2021
Melbourne
24 November

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