Harmeek Vadhan v Night Owls Pty Ltd T/A Ferntree Print

[2014] FWC 5329

[2014] FWC 5329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harmeek Vadhan
v
Night Owls Pty Ltd T/A Ferntree Print
(U2014/7936)

COMMISSIONER LEWIN MELBOURNE, 29 AUGUST 2014

Application for relief from unfair dismissal - application for extension of time - alleged case of genuine redundancy - s 457 visa - exceptional circumstances - extension of time granted.

Introduction

[1] This decision concerns an application made by Mr Harmeek Vadhan (Mr Vadhan) under s 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to the termination of his employment by Night Owls Pty Ltd T/A Ferntree Print (Ferntree Print).

[2] Mr Vadhan was dismissed by Ferntree Print with effect from 21 May 2014. On 18 June 2014 Mr Vadhan made the application under consideration by filing it with the Victorian Registry of the Fair Work Commission (the Commission).

[3] The Act provides that an application under s 394 must be made within 21 days after the dismissal takes effect.

[4] Mr Vadhan filed the application seven days after the expiry of the time allowed for the making of the application.

Statutory provisions

[5] The relevant statutory provisions are set out below:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to 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 FWC allows under subsection (3).

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if 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.”

Background

[6] Mr Vadhan sought that the Commission allow a further period, up to the date of filing of the application, for the application to be made, as provided for by s 394(3) of the Act.

[7] Ferntree Print opposed Mr Vadhan’s application for the extension of time sought.

[8] In preparation for a hearing of the application for the extension of time sought, outlines of submissions were received on 14 July 2014 on behalf of Mr Vadhan and on 23 July 2014 on behalf of Ferntree Print. Witness statements were filed with the outlines.

[9] The application for the extension of time was heard in Melbourne on 1 August 2014. At the hearing permission was granted for Mr Vadhan to be represented by a lawyer. Ferntree Print was granted permission to be represented by a paid agent. Mr Mendis represented Mr Vadhan and Mr Mahoney, of Employsure, represented Ferntree Print.

[10] In deciding to grant permission it was apposite that there were issues of jurisdiction and the Commission’s power to accept the application out of time that would have to be addressed in order to deal with the application, including consideration of whether the termination of Mr Vadhan’s employment was a case of genuine redundancy, within the meaning of the Act. I considered that these questions involved some legal complexity which would be more efficiently dealt with if permission to appear was granted respectively.

[11] Mr Vadhan and Mr Poff, Managing Director of Ferntree Print, gave evidence at the hearing. The hearing of the evidence took until 5:00pm. and at the conclusion the Commission gave directions for final submissions to be made in writing. Directions were issued accordingly.

[12] The Directions were as follows:

“1. The Respondent, Night Owls P/L T/A Ferntree Print (Ferntree Print), is directed to file and serve with the Fair Work Commission, and serve on the Applicant, an outline of submissions and any witness statements and other documentary material the Respondent intends to rely on in respect to the jurisdictional objection in this matter, by no later than 5:00pm, Monday, 18 August 2014.

2. The Applicant, Mr Harmeek Vadhan, is directed to file and serve with the Fair Work Commission, and serve on the Respondent, an outline of submissions and any witness statements and other documentary material the Applicant intends to rely on in respect to the jurisdictional objection in this matter, by no later than 5:00pm, Monday, 25 August 2014.”

[13] The parties filed submissions accordingly. An issue arose concerning the submissions filed on behalf of Mr Vadhan, in particular, Ferntree Print argue those submissions contained factual assertions not addressed at the hearing on 1 August 2014. For the purposes of this decision, I have confined my consideration to the evidence and facts before the Commission at the conclusion of the hearing on 1 August 2014.

Genuine redundancy

[14] There was no dispute that Mr Vadhan was a person protected from unfair dismissal at the time of the termination of his employment. However, the reason submitted by the respondent for the termination of Mr Vadhan’s employment was the alleged redundancy of the position in which Mr Vadhan was employed, at the time that his employment was terminated. Accordingly, Ferntree Print submitted that the termination of Mr Vadhan’s employment was a case of genuine redundancy. If so, then Mr Vadhan could not have been dismissed unfairly within the meaning of the Act.

[15] In this respect the provisions of ss 385 and 386 of the Act and are set out below:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[16] The submission of Ferntree Print, that the termination of Mr Vadhan’s employment was a case of genuine redundancy, raises a question which was not fully addressed by the parties. That is, regardless of the time when the application was made was Mr Vadhan able to make an application for an unfair dismissal remedy and consequently, is there an application in respect of which the Commission can exercise the discretionary power conferred by s 394(3) to allow a further period for the application to be made by Mr Vadhan?

[17] In my view, the relevant consideration for the purposes of the application by Mr Vadhan for an extension of time arises from s386. That is, there is no dispute that Mr Vadhan’s employment was terminated at the initiative of Ferntree Print. Consequently, but for having been made outside the time prescribed by s394(2)(a), the application filed by Mr Vadhan is valid. The consequence is that the application may be accepted if the commission allows further time in accordance with s394(2)(b). However the application, if accepted, cannot succeed if the Commission is ultimately satisfied that the dismissal was a case of genuine redundancy within the meaning of the Act.

[18] On what is before me, I find that between the time of first being notified that the position in which he was employed was redundant and the filing of the application in this matter Mr Vadhan disputed the genuineness of the redundancy of his position, as alleged by Ferntree. In response to a question from Mr Mahoney, Mr Poff stated in his evidence that Mr Vadhan disputed the redundancy of the position in which he was employed. Moreover, Mr Poff testified that there was a vacant position as a result of the restructuring of the business at the time that Mr Vadhan’s employment came to an end. Mr Poff’s evidence is that Mr Vadhan could have performed the duties of that position.

[19] The termination of an employee’s employment in a redundancy situation will only be a case of genuine redundancy, within the meaning of Act, when the conditions prescribed by the Act are met.

[20] The relevant statutory provisions appear in s 389 of the Act which are set out below:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[21] On the evidence before me, I am unable to arrive at a conclusive finding that the dismissal of Mr Vadhan was a case of genuine redundancy, within the meaning of the Act. This is because Mr Poff’s evidence strongly suggests that it may well have been reasonable to redeploy Mr Vadhan to the vacant position referred to in Mr Poff’s evidence, as a result of the restructure of the business. Accordingly, I cannot be satisfied that Mr Vadhan’s dismissal was a case of genuine redundancy for the purposes of my consideration of Mr Vadhan’s application for an extension of time for the acceptance of the application.

Extension of time

[22] I therefore proceed to consider whether the power to allow the application to be accepted as filed seven days beyond the time allowed by s 394(2)(a) arises and if it does whether to exercise that discretionary power.

[23] In order for the power to allow a further period for the acceptance of the application to arise, I must be satisfied that there are exceptional circumstances in relation to the late filing of the application taking into account the matters set out in s394(3), above.

[24] What will be exceptional circumstances has been considered by the Full Bench of the Commission. It is now well settled that the statutory meaning to be attributed to the expression “exceptional circumstances” is as follows:

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurance, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 1

[25] The Respondent to the application submits that there was a restructure of Ferntree Print’s business for operational reasons. It was submitted by Ferntree Print, through the evidence of Mr Poff, that a consequence was that one of two employees, Mr Vadhan and Mr Vikas Sharma, would have to depart the business. Mr Sharma resigned and found employment elsewhere. As noted, it is also established that there was a vacant position that Mr Vadhan could perform at the relevant time. Mr Vadhan was told by Mr Poff that he would have to apply for that position.

[26] Mr Vadhan had come to Australia from India for trade training, which he had completed, and was employed to do the work for which he had qualified by Ferntree Print and was doing so at the time his employment was terminated.

[27] Mr Vadhan was working for Ferntree Print on a s 457 visa, of which Ferntree Print was the employer sponsor. In the period following the termination of Mr Vadhan’s employment Mr Vadhan met with Mr Poff at the Ferntree Print factory on a number of occasions to discuss continuing or further employment. On more than one occasion Mr Poff and Mr Vadhan continued the discussions at dinner. Mr Poff and Mr Vadhan discussed the difficulty arising from the restructure at Ferntree Print and the impact on Mr Vadhan’s s 457 visa. At the heart of the difficulty was that the remuneration of what Ferntree Print referred to as the vacant position was less than the remuneration prescribed by the terms of the s 457 visa. Mr Poff and Mr Vadhan discussed this matter and Mr Vadhan had a number of conversations with a migration agent about the possibility that the visa might lapse and that he would have to leave Australia.

[28] Mr Vadhan wanted to continue to be employed by Ferntree and to maintain his visa status. Mr Vadhan gave evidence that he hoped to negotiate continuing or further employment, to preserve his sponsorship and maintain his visa status during the period between the termination of his employment and the filing of the application.

[29] Clearly, Mr Vadhan sought to maintain a functional relationship with Ferntree Print, and Mr Poff, at least in part, for these reasons. Mr Vadhan testified that he considered Mr Poff a friend. I accept that he avoided making the application in this matter to minimise conflict and maximise his prospects of continuing or further employment with Ferntree Print, in order to preserve his alleged redundancy and visa status.

[30] In my view, the reasons for the delay described are somewhat outside the ordinary course of events that might be usually encountered by an employee whose employment is involuntarily terminated.

[31] Mr Vadhan was aware of the dismissal when it took effect.

[32] I consider that no prejudice to the employer would arise from allowing further time for the application to be accepted. The facts are simple and I think clear. The extension on time is urgent; there is no turnover of staff or issue of fading memory which might prevent Ferntree Print from effectively defending the application.

[33] On what is before me, I am satisfied the application is not without merit. If it proves that the vacant position was one to which Mr Vadhan could reasonably have been redeployed it is arguable that a finding could be reached that there was not a valid reason for the termination of Mr Vadhan’s employment.

[34] In these circumstances, the possibility of a favourable determination of the substantive application in favour of Mr Vadhan would be open.

[35] As far as I can see, there is no relevant consideration of any employees in similar circumstances to those of Mr Vadhan which I can bring to bear on my consideration of whether to allow a further period for the making of the application.

Conclusion

[36] I find that there are exceptional circumstances.

[37] Moreover, I consider, in light of the facts; the disputed redundancy of the position in which Mr Vadhan was employed at the time of the termination of his employment; the existence of a position to which Mr Vadhan might have potentially been redeployed; the complexity of the issues concerning Mr Vadhan’s visa status and Mr Vadhan’s considerable attempts to maintain a positive functional relationship with Ferntree Print, to enable further or continuing employment, that justice is best served by exercising the discretion to allow a further period for the acceptance of the application as filed.

[38] An order will issue accordingly.

[39] The matter will be listed again to hear and determine whether or not the dismissal was a case of genuine redundancy.

COMMISSIONER

Appearances:

Mr Mendis for the Applicant.

Mr Mahoney for the Respondent.

Hearing details:

Melbourne:

2014.

1 August.

Final written submissions:

From the Applicant: 25 August 2014.

From the Respondent: 14 August 2014.

 1   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; [2011] FWAFB 975, para [13].

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