Getachew Hadgu v Team Global Express Pty Ltd
[2024] FWC 1461
•5 JUNE 2024
| [2024] FWC 1461 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 – Unfair dismissal
Getachew Hadgu
v
Team Global Express Pty Ltd
(U2024/5169)
| COMMISSIONER TRAN | MELBOURNE, 5 JUNE 2024 |
Application for an unfair dismissal remedy – extension of time – extension not granted – application dismissed
On 7 May 2024, Mr Getachew Hadgu (the Applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s 394 of the Fair Work Act (the Act) in relation to the termination of his employment by Team Global Express (the Employer/Respondent).
Mr Hadgu commenced employment with the Employer in or around 2007. He was notified of his dismissal during a meeting on Thursday 28 March 2024, when he was handed a termination letter.
Before determining whether the dismissal was unfair, the Commission must be satisfied that an application was made within time or allow a further period of time under s 394.
The dismissal took effect on 28 March 2024. The statutory period of 21 days therefore ended at midnight on 18 April 2024. The application was filed on 7 May 2024, 19 days after the end of the statutory period.
Having considered the evidence and submissions of the parties, and the factors in s 394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. Therefore, the application is dismissed. My detailed reasons follow.
Materials relied upon
Directions were issued and both parties filed materials in accordance with those directions. My chambers compiled the materials into a digital hearing book, which was provided to the parties prior to the hearing. I accepted into evidence the entirety of the digital hearing book.
I held a determinative conference via Microsoft Teams on Monday 3 June 2024.
Mr Hadgu gave evidence and made submissions on his own behalf. I found Mr Hadgu to be genuine, honest and diligent in giving his evidence and making his arguments. Ms Margaret Crossley, AM Depot Manager, gave evidence on behalf of the Respondent. Mr Daniel McGee, Senior Manager Industrial & Employee Relations, made submissions on behalf of the Respondent.
Relevant Law
Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made:
“(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).”
Section 394(3) of the Act provides that:
“[t]he 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 legislation is clear that the power to extend time is discretionary but may only be exercised if first satisfied that there are exceptional circumstances.
Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[1] establishes the following:
-the Commission must consider all of the circumstances;
-the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
-but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
-a single event can be exceptional;
-a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon.
The matters in s 394(3) are factors to be taken into account in ascertaining whether there are exceptional circumstances. The factors themselves do not have to be exceptional. The final conclusion about whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[2]
Factors to take into account
394(3)(a) – the reason for the delay
Mr Hadgu’s evidence is that the reason for the delay in lodging his application was that he was unaware that there was a time limit and that he had been devastated by the termination of his employment after the lengthy period of time that he was employed there. Mr Hadgu described his employment as ‘his second home’, and he was devastated to learn that he would no longer be working there.
Mr Hadgu says that he did not know, until 6 May 2024 when he spoke to a solicitor and then the Commission, that he was required to lodge an application for an unfair dismissal remedy within 21 days. After he learned of the time limit, he lodged his application the following day.
I asked Mr Hadgu what he had done about the termination of his employment prior to 6 May 2024 when he spoke with a solicitor. He said that he was very depressed, on antidepressant medications and sleeping pills. He said that he was not himself. Mr Hadgu gave evidence that he is seeing his general practitioner, pain management specialist, psychiatrist and psychologist, but he did not request or supply any medical evidence in support of the oral evidence he gave about his health and its impact on his ability to challenge the dismissal. He gave evidence that he attended appointments 2 – 3 days a week, and otherwise went to the library to avoid the stress and depression of home.
I do not consider that Mr Hadgu has provided satisfactory reasons for the delay, and the reasons he has provided – ignorance of the time limit and generalised information about how the dismissal devastated him – are not unusual or out of the ordinary.[3]
I consider that this factor does not weigh in favour of extending time.
394(3)(b) – whether the person first became aware of the dismissal after it had taken effect
While the copy of the termination letter that Mr Hadgu filed with his application is dated 28 April 2024, he confirmed that he received the letter on Thursday 28 March 2024 when he was called into a manager’s office and handed the letter. Mr Hadgu says that he was aware at the time that he received the letter that his employment had been terminated, although he did not read the letter until much later. I find therefore that Mr Hadgu became aware of the dismissal when it took effect.
I consider that this factor does not weigh in favour of extending time.
394(3)(c) – any action taken by the person to dispute the dismissal
Mr Hadgu did not take any action to challenge his dismissal until he sought advice from a solicitor on 6 May 2024, which was after the end of the statutory period.
I consider that this factor does not weigh in favour of extending time.
394(3)(d) – prejudice to the employer (including prejudice caused by the delay)
The delay was 19 days. The Respondent did not make any submissions in relation to prejudice except that, in and of itself, lack of prejudice should not weigh in favour of an extension.
I consider this factor neutral in my determination of this matter.
394(3)(e) – the merits of the application
My assessment of the merits for this matter is primarily whether the Applicant has an arguable case. Mr Hadgu’s case is that in the circumstances of his long period of employment and that he was on reduced duties due to his workplace injuries, that his dismissal was unfair. The Employer’s arguments are that they had a valid reason – medical capacity – and they had followed a fair process prior to dismissing Mr Hadgu.
I am of the view Mr Hadgu has an arguable case and consider this factor neutral in my determination of this matter.
394(3)(f) – fairness as between the person and other persons in a similar position
Neither party made submissions in relation to this factor and so I consider this factor neutral in my determination of this matter.
Conclusion & Order
I have formed the view that there were not exceptional circumstances such as to allow me to exercise a discretion to extend time.
I therefore dismiss the Applicant’s application for an unfair dismissal remedy.
COMMISSIONER
Appearances:
G Hadgu for the Applicant
D McGee for the Respondent
Hearing details:
3 June 2024
Video using Microsoft Teams
[1] [2011] FWAFB 975 at [13].
[2] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39].
[3] See Shergill v Dairy Technical Services Ltd[2014] FWC 495 at [25].
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