Dr Jomana Al-Nu'Airat v Salt Lake Potash

[2020] FWC 6193

[2020] FWC 6193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Jomana Al-Nu’Airat
v
Salt Lake Potash
(U2020/13459)

COMMISSIONER WILLIAMS PERTH, 23 NOVEMBER 2020

Termination of employment - jurisdiction - extension of time.

[1] Dr Jomana Al-Nu’Airat (the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Respondent is Salt Lake Potash (the Respondent).

[2] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[3] Consequently, I wrote to the Applicant explaining the requirements of section 394 of the Act and inviting the Applicant to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[4] The Applicant has provided a response to the Commission’s direction. The Respondent has similarly provided, through its legal representative, materials in opposition to the Applicant’s request for an extension of time.

[5] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Background

[6] The Respondent is in the process of developing a series of Sulphate of Potash operations across the Western Australian Goldfields regions. The Lake Way project is the Respondent’s main project and is currently in the construction phase.

[7] The Applicant commenced employment with the Respondent in the role of Chemical Engineer on 8 July 2019. The Applicant was the only Chemical Engineer working on the Lake Way project.

[8] In early 2020, the Respondent was in the process of negotiating funding for the Lake Way project. When the COVID-19 pandemic escalated in late March 2020, the Respondent’s funders were reluctant to fund any projects due to global uncertainty and negotiations fell through. The Respondent attempted to secure alternative funding at the time but was not successful.

[9] As a result of the Respondent not securing funding for the Lake Way project and the uncertainty of the COVID-19 pandemic, in early April 2020, the Respondent:

a. stood down part of its workforce;

b. requested that management employees take a 40% reduction to their salaries and general staff take a 20% reduction to their pay;

c. made 4 permanent roles across different areas of its operations, including the Applicant’s role, redundant; and

d. let go a further 10 casual employees.

[10] Following consultation, the Respondent confirmed the termination of Applicant’s employment by reason of redundancy, effective immediately, by letter dated 7 April 2020 from Mr Tony Swiericzuk (Mr T. Swiericzuk), CEO/Managing Director of the Respondent.

[11] In August 2020, the Respondent was able to secure funding for the Lake Way project. Whilst funding for the project has been approved by the Respondent’s financier, the Respondent says it has not yet received the funds. As a result, the Respondent has undertaken a number of capital raising processes to fund its continued operations prior to receiving the funds from the funder.

[12] Since the Applicant’s dismissal, the Respondent has not employed anyone to perform the role previously performed by the Applicant, as it continues to have no operational requirement for that role.

[13] On 16 September 2020, the Applicant sent an email to Mr A Swiericzuk and Mr T Swiericzuk stating that “I assume my position Salt Lake Potash can be re-instated” due to an update the Applicant had seen on “linkedIn that salt lake potash has weathered the covid crisis and is in a financially strong position”. The Respondent replied to the Applicant by email of 29 September 2020 confirming that the Applicant’s previous role remained redundant.

The reason for the delay

[14] The Applicant’s explanation of the delay is as follows:

“Dear Sir/Madam,

Thank you for the initial assessment of my application. Please find below the explanation of why I have submitted my application after the stipulated 21 days.

Rationale

The main reason for my late application is due to the misinformation from Salt Lake Potash. On the day of my dismissal I was informed that the redundancy was a result of COVID-19 pandemic, which startled many companies all over the world with financial losses, where many companies started to downsize at that time, I thought that SO4 was not an exception. However, after a period of being dismissed from the company, I started contacting my colleagues and reading into the overall financial situation and public statements of SO4, who repeated on many occasions that their finances have not been hit as they claimed in my dismissal email and phone calls.

I quote from the Annual Report to shareholders on 28th Sep 2020:

“Due to the concerted and quick action of the Company, the overall financial impact of COVID-19 has been minimal.”

And it is stated clearly in SO4 quarterly report in June 2020, that in April they were doing very well:

“In April 2020 the Company raised A$20m in a placement to existing and new institutional investors.”

In addition to that, and from my conversations with my previous colleagues I found that the company has been hiring new personnel, in light of this, I contacted the leadership team requesting re-instatement of my position on 16 September 2020. After which I received a notification from the HR manager on 29th September 2020 that my position remains redundant although their projects’ funding has been successful. I submitted the application for unfair dismissal on the 11 October 2020 – within the 21 days timeline of the recent redundant information.

28 Sep 2020 Annual Report to shareholders
2020 quarterly report

Sincerely

Jomana Al-Nu’airat”

[15] It is clear the Applicant first became aware of her dismissal on 7 April 2020 and it took effect that same day.

[16] The Applicant lodged this application on 11 October 2020.

[17] In this matter, there are two periods of delay. The first is from the day after the statutory 21 day period ended, being 29 April 2020, to the day that the Applicant alleges she formed the view that her dismissal was not a genuine redundancy.

[18] The Applicant has not provided any evidence as to the date on which she formed the view that her dismissal was not legitimate. However, at the latest, this must have occurred by 16 September 2020 when the Applicant sent her email to the Respondent requesting her role be “re-instated”. This is the most favourable interpretation for the Applicant.

[19] The Applicant is submitting that initially she accepted the legitimacy of her position being made redundant and her consequential dismissal. It was only months later when she became aware of various public statements and information about the financial position of the Respondent and new hiring that she came to doubt the legitimacy of her position being made redundant and concluded her dismissal was not legitimate.

[20] Relevantly, the Applicant’s email to the Respondent on September 16, 2020 put it this way:

“I noticed on linkedIn that salt lake potash has weathered the covid crisis and is in a financially strong position again. I assume my position with Salt Lake potash can be reinstated.” [sic] (Emphasis added).

[21] Whilst subjectively the Applicant may have formed the conclusion that her dismissal was not legitimate on the available information, considered objectively, there is no real basis for this conclusion.

[22] The Applicant’s email enquiry in September 2020 itself recognised the Respondent had weathered the COVID-19 crisis and its financial position was now strong.

[23] The Applicant’s changed opinion of her dismissal was based on information about the Respondent’s overall financial state at a point in time months after her position had been made redundant and on the fact the Respondent was hiring some employees. This information was so general in nature that it does not objectively support the conclusion that the particular position the Applicant held as a chemical engineer was not in fact redundant five months earlier in April 2020.

[24] Even if her changed subjective opinion about the legitimacy of her dismissal could be viewed as an acceptable reason for the first part of the delay in making this application by 16 September 2020 at the latest the Applicant had concluded her dismissal was not legitimate. However, she did not then file this application nor did she file this application within 21 days of 16 September 2020. The application was not filed until 10 October 2020.

[25] Instead of making this application promptly having concluded her dismissal was not legitimate the Applicant chose instead to ask her employer to reinstate her and then chose to wait for their reply. This is not an acceptable reason for the second period of delay in making the application from the time she first concluded her dismissal was not legitimate.

[26] Nothing prevented the Applicant from making the application within 21 days of 16 September 2020.

[27] In this matter there was not an acceptable reason for the either of the periods of delay in making this application. This weighs against the Commission finding that there are exceptional circumstances which would justify it exercising its discretion to allow a further period for the application to be made under section 394(3) of the Act.

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

[28] The Applicant was notified of her dismissal on the same day that it took effect by way of a termination letter.

Any action taken by the person to dispute the dismissal

[29] To the extent that the Applicant relies on her email of 16 September 2020 as evidencing an attempt to dispute her dismissal, that email does not make any reference to the Applicant disputing the genuineness of the redundancy of her role. Rather, it requests that the Applicant be “re-instated” now that the Respondent “is in a financially strong position again”.

Prejudice to the employer (including prejudice caused by the delay)

[30] I do not accept that there is any prejudice to the Respondent if a further period to apply was allowed.

The merits of the application

[31] The Applicant’s assertion that her dismissal was not a genuine redundancy appears to be based on reviewing the Respondent’s April decision based on a subsequent improvement in the respondent’s overall financial position and the fact that it was hiring some employees.

[32] The Respondent argues the dismissal was a genuine redundancy as the Respondent did not, at the time it made her position redundant in April 2020, require a Chemical Processing Engineer in her role.

[33] A Chemical Processing Engineer was only required if the Respondent was carrying out operational duties at the Lake Way project. The Respondent could not carry out these duties without funding and at the time of making the Applicant’s position redundant, it had not received the funding it needed to commence operation.

[34] The change in its operational requirements meant the Respondent no longer needed the Applicant’s position.

[35] The Respondent apparently complied with its consultation obligations. The Respondent says the position remains redundant.

[36] The fact the Respondent’s financial position may have improved after the Applicant’s dismissal does not impugn the Respondent’s decision made in April.

[37] For these reasons, the merits of the application weigh against the Commission finding that there are exceptional circumstances which would justify it exercising its discretion to allow a further period for the Application to be made under section 394(3) of the Act.

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

[38] There is no information regarding fairness between the Applicant and other persons in a similar position.

Conclusion

[39] The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days.

[40] I have considered the evidence and submissions and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[41] Consequently, there is no basis on which to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

[42] An order [PR724675] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 27 October 2020.
Respondent, 12 November 2020.

Printed by authority of the Commonwealth Government Printer

<PR724674>