Gajendran Prabhakaran v A.C.P. Industries Pty Ltd
[2024] FWC 704
•18 MARCH 2024
| [2024] FWC 704 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gajendran Prabhakaran
v
A.C.P. Industries Pty Ltd
(U2024/533)
| COMMISSIONER SCHNEIDER | PERTH, 18 MARCH 2024 |
Application for an unfair dismissal remedy
Mr Gajendran Prabhakaran (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with A.C.P. Industries Pty Ltd (the Respondent).
The Respondent objects to the application on the grounds that it appears to have been lodged outside of the statutory timeframe. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
A Hearing regarding the out of time issue was held. At the Hearing, the Applicant gave evidence on his own behalf. The Respondent did not present any witnesses, as they did not file any materials in compliance with the Commission’s directions.
Pursuant to section 590(2) of the Act, the following individuals were ordered to attend for the purposes of being subject to questioning in regard to the events surrounding the Applicant’s dismissal:
· Mr Wayne Harding (Mr Harding), Employee (Butcher) of the Respondent.
· Mr Michael Harvey (Mr Harvey), Employee (Assistant Manager) of the Respondent.
· Ms Jennifer Jacomelli (Ms Jacomelli), Employee (Manager) of the Respondent.
Dismissal date
Relevant Law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“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.
…(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)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
The parties are in dispute about when the dismissal took effect.
Submissions and Evidence
The Applicant filed submissions in the Commission on 13 February 2024.
The Applicant received directions from Chambers on 6 February 2024, which outlined the below:
“The Applicant is directed to file in the Commission, and serve on the other party, the following materials in support of the Commission granting an extension of time in which to make the application:
a) Outline of Submissions.
b) Written statements of evidence for any witnesses to be called, including the Applicant.
c) Copies of any supporting documents.
These must be filed and served by 4:00pm 13 February 2024.”
Many of the other points raised by the Applicant in his submissions are not of notable relevance to the objection before the Commission.
The Applicant’s allegations against the Respondent in relation to certain practices which may or may not occur on or at the Respondent’s place of business do not, in this matter, explain why his application was delayed in being filed with the Commission. For example, the Applicant made the allegation that the Respondent “would tell me to steal from poor people. When a customer comes with a food voucher, craig would tell me scan multiple products twice which would add up the total amount of the voucher”.
The Applicant provided no evidence in support of some of these serious allegations against the Respondent and also did not articulate how this impacted his ability to file his application within the required time frame.
Overall, the submissions received from the Applicant were primarily a raft of complaints and allegations against the Respondent alongside expressions of his dissatisfaction with the Respondent’s decision to terminate the Applicant’s employment. For example:
“I strongly believe it was trap set up by Mr.Craig to get rid of me.
Craig took over the business from end of January 2023,From that time his approach to the business was not ethical.To begin with:
Craig would tell me to steal from poor people.When a customer comes with a food voucher, craig would tell me scan multiple products twice which would add up the total amount of the voucher.He said this to another staff also named Sae. I refused to do that.
About the minutes of the meeting.
The letter says meeting happened from 09:30am to 10:00am,actually the meeting happened around 11:00.The proof is after the meeting concluded Jenni advised me to clock off go home which did.My time card will prove it.And the letter says Phone call to craig.No phone call was made during the meeting.Mr.Wayne and Mr.Michael is the proof.And the letter says i said my actions were Stupid.I did not say that,i said this is stupid what was going on.
The letter says dismissal due to dishonesty/theft but separation certificate says a different reason.Unsuitability for this kind of work and surplus to requirement,this was the reason in the separation certificate emailed to my early January 2024.But the separation certificate attached along with the other document by the respondent says a different version.This is a form of forgery.This clearly shows they were in a rush to prepare the paper work and made multiple mistakes.I have attached a copy of the separation certificate emailed to me.
Other unlawful practices:
When the butcher Mr.wayne was on holidays Craig would buy meats and sausages from Woolworths Department stores and repack it in IGA butcher shop.I was forced to repack with IGA sticker on it. I refused to do this.I have proof.
When i was working in the Deli Management will force me to cook out of date products,like Pizza,quich etc.Which i refused to do. This is were i believe criag would have decided to get rid of me.Because from the next weeks roster i was mysteriously taken out of the Deli.
So many practices like this management would Refreeze the chilled products and put extra dates on the chilled products.Which made the product not consumable.We had several complaints about products being having mold.
It happens across all the departments.This the main reason most of the staffs left.Employee records will prove it.Couple of former employees are ready to come forward and give evidence that this practices did happen.
In Craig's letter he had accused me of many things.
I strongly deny such things happenned. I would like to explain everything in the meeting.
But for example couple of things:
It mentions i was given a final written warning in the past. I was not given any written warning.
My.Wayne is the proof.
Chauvinistic and aggressive behavior pattern towards female staff.
Again i deny.But if this has happened,it is a serious work place harassment offence.Why was i not fired straight away,because it didn't happen.
Many accusations are serious issues, which i deny it happened.But if it had happened craig should have fired me long back.
But he choose not to because none of them occurred.” (sic)
As can be deduced from the above, the Applicant’s materials largely address the merits of the matter.
Although the merits of the matter are listed as a consideration in determining the objection, the Applicant’s materials do not offer much information relevant to the determination of the dismissal date or the other criteria to be considered.
As a result, much of the information discussed in this decision is gleaned from the evidence given at Hearing, noting the witness testimony more thoroughly discussed the facts and issues most central to jurisdictional issue.
The Respondent failed to provide any materials despite additional time being afforded.
The Applicant, in his F2 application form, states that the dismissal took effect on 14 December 2023.
In the F3 response form, the Respondent states that the dismissal took effect on 12 December 2023, when the Applicant was verbally advised of his termination during a meeting between the Applicant and representatives of the Respondent.
Neither party provided clear or detailed submissions as to when the dismissal took effect outside of the above statements.
At the Hearing, the Applicant gave the following evidence regarding his dismissal date:
· He was told his employment was terminated on 12 December 2023.
· It took an extended period of time to receive his separation certificate and that the date listed on his separation certificate was 14 December 2023.
· He was told that if he wanted to appeal the decision or seek his job back, he would need to speak to Mr Craig Becker (Mr Becker), the Owner of the Respondent.
At the Hearing, Ms Jacomelli gave the following evidence:
· She had advised the Applicant that his employment with the Respondent was terminated with immediate effect on 12 December 2023.
· During the dismissal meeting, the Applicant was upset, and she explained that the decision was final and that she was acting on the instructions of Mr Becker.
· Explained that she advised the Applicant that he would need to speak to Mr Becker if he wished to dispute the dismissal.
Mr Harding and Mr Havery were witnesses to the dismissal meeting.
Both Mr Harding and Mr Havery confirmed that Ms Jacomelli clearly articulated to the Applicant that his employment was terminated and that he was dismissed with immediate effect.
Consideration
Having considered the evidence of the Applicant and the witnesses, I am satisfied that the Applicant was verbally advised his employment had been terminated, effective immediately, during the meeting 12 December 2023.
Whilst the absence of a formal letter of termination is not best practice or recommended, I am satisfied that, on the evidence before the Commission, notably the Applicant’s own testimony given under oath, the Applicant was aware and understood that his employment had been terminated on 12 December 2023.
The Respondent should, in the future, ensure that an employee who is being dismissed is provided with a letter confirming the termination of their employment in writing.
Having regard to the matters I have referred to above, I am satisfied that the dismissal took effect on 12 December 2023.
It is a matter of record that the application was made on 15 January 2024.
As I found above, the dismissal took effect on 12 December 2023. The final day of the 21-day period was therefore 2 January 2024 and ended at midnight on that day.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Extension of time
Relevant law
Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.
The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(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.”
The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted in the given circumstances.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4]
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.[5]
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.[6]
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.[7]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[8]
This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.
Consideration of Criteria
Reason for the delay - Did the Applicant first become aware of the dismissal after it had taken effect? - What action was taken by the Applicant to dispute the dismissal?
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 2 January 2024. The delay is the period commencing immediately after that time until 15 January 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]
The Applicant largely relied upon the Respondent’s failure to provide written confirmation of his termination of employment:
“I was not given a formal written communication about my dismissal.
The week I was told verbally that I am dismissed I was paid only for the days I worked not my holiday pay. I contacted the site several times to enquire about my holiday pay and written communication. I was told that manager is on holidays and boss is in perth and they have sent a email about this to the boss and they can’t do much about it.
I called the boss few times but in vain no response. Then the next week I got paid my holiday pay and it didn’t say final settlement. I was waiting for the written communication about my dismissal,that is why the delay in lodging. I still haven’t got any formal written communication about my dismissal.”
While giving evidence, the Applicant explained that he attempted to contact Mr Becker on numerous occasions in relation to his final payment and to see if he could get his job back. However, the Applicant stated, Mr Becker did not respond to his calls.
Having regard to the above, I am satisfied there was some level of confusion caused by the absence of a written notice of termination – leading to some apprehension in immediately pursing action. Nevertheless, on assessment of the evidence before me, the Applicant was aware of his termination. I am not satisfied that the Applicant’s desire to appeal his termination indicated any misunderstanding of the effective date.
The Applicant, being aware of his dismissal and when it took effect, had no reason to await some form of final settlement prior to pursuing this application.
There is no evidence before me that suggests the Respondent, at the time of the dismissal, indicated the Applicant would receive further correspondence or that confirmation of the details of his termination were to follow.
As noted earlier, I found that the Applicant was aware of his termination at the time it came into effect and had the benefit of the full 21-day period to file his application.
I note the comments made to the Applicant about potentially discussing the decision to dismiss him with Mr Becker.
I am satisfied that the Applicant did attempt to make contact with Mr Becker, and that contact was not returned.
It is likely that, if a discussion had occurred, the Applicant would have sought for the Respondent to reconsider the termination.
Accordingly, I am satisfied that the Applicant made, although unsuccessful, an attempt to dispute the dismissal.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[10] and the same applies to section 394(3)(e) of the Act.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.
In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reason for the delay, being the failure of the Respondent to provide written confirmation of the Applicant’s termination.
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the Applicant making some efforts to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
I am not satisfied that any individual criteria assessed in this matter gives rise to exceptional circumstances nor am I satisfied that assessment and balance of all the relevant criteria gives rise to exceptional circumstances.
The Applicant primarily relied upon the failure of the Respondent to provide him with written notice of termination and his unsuccessful attempts to contact Mr Becker regarding the decision.
The Respondent’s failure to provided written notification of termination to the Applicant may have contributed, in part, to some level of confusion which led to delay.
However, I am not satisfied this alone constitutes exceptional circumstances or excuses a 13-day delay. Additionally, I have reached the same conclusion regarding the Applicant’s unsuccessful attempts to contact Mr Becker. Further, in assessing both of these issues combined, I reach the same conclusion.
I am satisfied that the Applicant understood the fact that he was dismissed and, despite the lack of formality and common courtesy on behalf of the Respondent, it was open to the Applicant to file his application within the prescribed period.
Finally, in assessing all the relevant criteria and the circumstances of the matter before me, I am not able to reach satisfaction that there are exceptional circumstances which would give rise to considering an extension of time.
Although, on the evidence before the Commission, it appears the Respondent is plagued by poor communication as it relates to its employees, this deficiency alone has not, in this case, constituted exceptional circumstances or could be attributed primary blame for the lateness of this application.
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.[11]
COMMISSIONER
Appearances:
G Prabhakaran, Applicant.
C Becker, Respondent.
Hearing details:
2024.
Perth (by video):
February 27.
[1] [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.
[2] [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; [2015] FWCFB 1877.
[3] [2018] FWCFB 901, [39].
[4] [2011] FWAFB 975, [13].
[5] Ibid.
[6] [2018] FWCFB 901, [39].
[7] Ibid, [40].
[8] Ibid, [17].
[9] [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[10] [2011] FWAFB 975, [36].
[11] [PR772491].
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