Gurpreet Marwaha v La Trobe Financial Services Pty Limited

[2014] FWC 5234

[2014] FWC 5234

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gurpreet Marwaha
v
La Trobe Financial Services Pty Limited
(U2014/9829)

SENIOR DEPUTY PRESIDENT ACTON MELBOURNE, 4 AUGUST 2014

Application for relief from unfair dismissal — application lodged outside 21 day period after dismissal took effect — no exceptional circumstances — extension to file the unfair dismissal application not granted — application for an unfair dismissal remedy dismissed.

Introduction

[1] Ms Gurpreet Marwaha was dismissed from her employment by La Trobe Financial Services Pty Limited (LFS) on 27 November 2013. At the time, the dismissal was said by LFS to be due to her services being redundant. Ms Marwaha made an unfair dismissal remedy (UDR) application to the Fair Work Commission (the FWC) on 5 June 2014.

[2] Section 394 of the Fair Work Act 2009 (Cth) (the Act) provides as follows:

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] Ms Marwaha’s UDR application was made more than 21 days after her dismissal from LFS took effect. This decision deals with Ms Marwaha’s application for the FWC to allow her a further period for the making of her UDR application.

[4] In support of her application for an extension of time for the making of her UDR application, Ms Marwaha filed a written outline of submissions 1 and also made oral submissions. Further, Ms Marwaha submitted a witness statement, with numerous attachments, going to many of the matters set out in her written outline and oral submissions.2

[5] LFS opposed Ms Marwaha’s application for an extension of time for the making of her UDR application. LFS also provided a written outline of submissions opposing the extension of time 3 and made oral submissions.

Consideration

[6] I turn then to consider the matters in s 394(3) of the Act.

a) Section 394(3)(a) — Reason for the delay

[7] The reasons for Ms Marwaha’s delay in making her UDR application were, in summary, that:

● she was unaware of the FWC’s unfair dismissal jurisdiction until early June 2014; and
● she became aware in early June 2014 that LFS had advertised on 30 May 2014 for an employee to perform her former duties, with a similar advertisement having been placed by LFS in March 2014.

[8] Ms Marwaha also advanced as reasons for her delay in making her UDR application that:

● she was, and is, suffering from ill health, with various reasons for her ill health;
● she did not have access at her home to the internet; and
● she was concerned she would not receive favourable references from LFS if she made a UDR application.

[9] The material she presented with respect to her suffering ill health, however, does not establish that she was incapable of making a UDR application any earlier than 5 June 2014.

[10] Further, home access to the internet is not required to obtain knowledge of or to make a UDR application. Moreover, Ms Marwaha received a favourable written reference from LFS on or around 22 January 2014, 4 some four months before she made her UDR application, and she made her UDR application notwithstanding the potential for LFS to give her an unfavourable oral reference.

b) Section 394(3)(b) — Whether Ms Marwaha first became aware of the dismissal after it had taken effect

[11] Ms Marwaha first became aware of her dismissal when it took effect.

c) Section 394(3)(c) — Any action taken by Ms Marwaha to dispute the dismissal

[12] Ms Marwaha submitted the following in respect of the matter in s 394(3)(c) of the Act:

“The day I was made redundant, when I was leaving the office I asked IT Head - Mr. Dubey if I could talk to Mrs. Bev Christou (who looks into HR issues) and I was advised that she will not be able to assist in any way as it is CEO’s decision to make me redundant and if I will talk to anyone about it, I will not get good reference for my future employment.

After coming back from India I called Mr. Dubey on number of occasions on his company’s mobile phone to ask about the reason for redundancy and other positions, if available. I was told that it’s due to my bad luck and CEO was not happy for some reason and hence my position was made redundant. I was advised to not to talk to anyone in the company about the dismissal as it will affect my reference.” 5

[13] Ms Marwaha went to India on 30 November 2013 and returned to Australia on 4 January 2014.

[14] Ms Marwaha was given a favourable written reference by LFS on or around 22 January 2014.

[15] In her witness statement, Ms Marwaha said the following about what took place on 27 November 2013, being the day of her dismissal:

“14. On 27th November 2013 morning around 11 O’clock while I was working on the e-newsletters, I was called in a meeting room by Prashant Dubey, IT Head at that time. Brian Ford, COO of the company in presence of IT Head gave me a piece of paper stating that I was made redundant and I was told that it was a Business Decision and was asked to leave premises immediately. It was a big shock for me. I just could not believe what was happening as I was called in middle of my work and told to leave premises immediately. I was never given any reason of redundancy and an opportunity to ask about the redundancy. It was very harsh, unjust and rude and I was not even allowed to touch my computer and IT head stood there all the time while I was packing my stuff. I quietly took my stuff and left the place. He came to the lifts with me and took my access card away. I was never told about what could be done if I am not happy with the decision and was left in a state to wonder what happened and what wrong I did that I have been dismissed. My Manager did not even come to say bye to me. Attached and Marked “G” is a copy of my Redundancy Letter and Pay Advice.” 6

[16] In early June 2014, Ms Marwaha also contacted the Fair Work Ombudsman about genuine redundancy and unfair dismissal.

[17] LFS submitted that Ms Marwaha did not take any steps to dispute her dismissal prior to making her UDR application.

[18] I accept Ms Marwaha took action to dispute her dismissal prior to making her UDR application by asking to speak to Mrs Christou on the day of her dismissal, by calling Mr Dubey at LFS on a number of occasions following her return to Australia from India on 4 January 2014 and asking about the reason for her redundancy and other positions, and by contacting the Fair Work Ombudsman about genuine redundancy and unfair dismissal in early June 2014.

d) Section 394(3)(d) — Prejudice to LFS (including prejudice caused by the delay)

[19] There is no prejudice to LFS, including prejudice caused by Ms Marwaha’s delay in making her UDR application or prejudice if the FWC was to allow her a further period for the making of her UDR application.

e) Section 394(3)(e) — The merits of the application

[20] On the material before me I am unable to conclude Ms Marwaha’s UDR application is without merit.

f) Section 394(3)(f) — Fairness as between the person and other persons in a similar position

[21] In this case, there are no issues relevant to the matter of fairness as between Ms Marwaha and other persons in a similar situation.

Conclusion

[22] Taking into account my findings on the matters in s 394(3)(a) to (f) of the Act, I am not satisfied there are exceptional circumstances for allowing Ms Marwaha a further period for the making of her UDR application.

[23] My findings on the matters in s 394(3)(a) to (f) neither individually nor collectively constitute exceptional circumstances warranting the FWC allowing Ms Marwaha a further period for the making of her UDR application.

[24] Ms Marwaha’s lack of awareness of the FWC’s unfair dismissal jurisdiction is not an exceptional circumstance.

[25] The advertising of Ms Marwaha’s position some three to six months after she was dismissed tends to support the position of LFS that the dismissal of Ms Marwaha was due to redundancy. 7 The advertisement and her becoming aware of the advertisement in early June 2014 are not exceptional circumstances.

[26] I have already referred to the difficulties with Ms Marwaha’s claims that her ill-health, lack of home access to the internet and concerns about not receiving favourable references from LFS were reasons for her delay in making her UDR application.

[27] While Ms Marwaha took the action I have earlier set out to dispute her dismissal prior to making her UDR application and I am unable on the material before me to conclude her UDR application is without merit, these do not represent exceptional circumstances.

[28] My findings in respect of the remaining s 394(3) matters also neither individually nor collectively constitute relevant exceptional circumstances.

[29] I therefore decline to allow Ms Marwaha a further period for the making of her UDR application and, to the extent necessary, dismiss her UDR application. An order to that effect is being issued at the same time as this decision. 8

SENIOR DEPUTY PRESIDENT

Appearances:

G. Marwaha, self-represented.

R. Donohoue for La Trobe Financial Services Pty Limited.

Hearing details:

2014.

Melbourne:

1 August.

 1   Exhibit A1.

 2   Exhibits A2 and A3.

 3   Exhibit R1.

 4   Attachment to the application in U2014/9829.

 5   Exhibit A1.

 6   Exhibit A3.

 7   Harrison v Kollaras Group T/A City Beach Function Centre, [2010] FWA 8194.

 8   Marwaha v La Trobe Financial Services Pty Limited, PR553913.

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