Jackson Desira v Acciona Rail Pty Ltd
[2024] FWC 477
•22 APRIL 2024
| [2024] FWC 477 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jackson Desira
v
Acciona Rail Pty Ltd
(C2023/7691)
| COMMISSIONER YILMAZ | MELBOURNE, 22 APRIL 2024 |
Application to deal with contraventions involving dismissal – whether application lodged out of time – lodged out of time - whether there are exceptional circumstances to allow for a further period for the Applicant to make the application - extension of time denied – Application dismissed.
On 8 December 2023, Mr Jackson Desira (Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in relation to allegations by the Applicant that he was dismissed from employment by Acciona Rail Pty Ltd (Acciona or Respondent) in contravention of the General Protections provisions in Part 3-1. Mr Desira commenced employment as a safety adviser on 29 May 2022 and alleges that his dismissal took effect 17 November 2023. Acciona contend that the dismissal took effect on 16 November 2023, so the application is one day late of the statutory 21-day time frame.
Mr Desira submits that his application is not out of time. While a meeting was held on 16 November 2023 to discuss the outcome of a review of his performance, he submits that his employment was terminated the following day when he received a letter of termination, and on that basis, he contends that the dismissal took effect on 17 November.
Acciona filed a response to the application on 16 January 2024 and raised a jurisdictional objection that the application had been made out of time.
This decision deals with the date of dismissal as a threshold matter because if I find the application was made within the statutory timeframe, it will not be necessary to consider whether an extension of time should be granted.
Both parties sought leave to be legally represented, both were granted leave. The Applicant was represented by Mr Twomey, Counsel and Ms Neale of Baraka Lawyers. The Respondent was represented by Mr Fleeton of K&L Gates.
Mr Desira gave sworn evidence on his own behalf. For the Respondent, the following witnesses gave evidence:
Ms Julia Grbac, Head of People and Capability
- Ms Bettina Monello, Senior Human Resources Business Partner
- Mr Kevin Mercer, Project Director, Somerton Intermodal Terminal Project
The Applicant’s submissions
Mr Desira commenced employment on 31 May 2022 as a Safety Coordinator on the Level Crossing Removal Project – Southern Program Alliance on 31 May 2022. On 29 May 2023 he transferred to the Somerton Intermodal Terminal (SIT) Project. Between 1 August and 19 September 2023, he took a period of parental leave. He submits that on his return to work he was treated less favourably. He submits that antagonism from the leadership team and failure to reintegrate him into the team following changes to the team was discrimination relating to the period of parental leave and a contravention of s.351 of the Act. He further submits an investigation into alleged breaches of health and safety procedures by him and the subsequent dismissal were adverse action.
On 9 October 2023, Mr Desira was informed an investigation into alleged breaches of health and safety procedures by him had commenced (referred to as the Safety Investigation and Fair and Just Culture Review). The outcome of this investigation was to be delivered to him in a disciplinary meeting on 16 November 2023. It is contended by Mr Desira that the dismissal occurred with a letter of termination the following day after the disciplinary meeting. If the dismissal took effect on 17 November 2023, as he contends, he submits t it is unnecessary to consider s.366(2) of the Act. However, in the alternative, if I was to find that the dismissal took effect on 16 November 2023, he submits the Commission ought to exercise its discretion to grant an extension of time.
It is not contested that Mr Desira attended a meeting with Ms Grbac, Mr Mercer and Ms Monello of the Respondent on 16 November 2023. On 14 November 2023 at 5.27 PM, Mr Desira received an email invitation from Ms Monello to attend the meeting on 16 November to discuss the findings and outcome of the Safety Investigation and Fair and Just Culture Review which commenced on 9 October 2023.
The invitation to attend the meeting was as follows:
“From: Bettina Monello
Sent: Tue, 14 Nov 2023 17:27:19 +1100
To: Desira, Jackson;Kevin Mercer;Julia Grbac
Subject: PRIVATE & CONFIDENTIAL - Investigation Outcome - Jackson Desira
Attachments: 231006_Safety Investigation _Just and Fair Culture Review_Jackson Desira.pdfHi Jackson
As discussed on the phone this afternoon, the Safety Investigation and Fair and Just Culture Review process has now concluded and this meeting it to notify you of the findings and outcome, including any disciplinary action that may apply.
Please note that in attendance at this meeting will be Kevin Mercer, Project Director, Somerton Intermodal Terminal Project, Julia Grbac, Head of People and Capability, Acciona Rail, and Bettina Monello, Senior HR Business Partner, Acciona Rail. You may bring a support person or representative of your choosing to the meeting should you wish to do so. If you do elect to bring a support person or representative, please advise of your intention to do so prior to the meeting and confirm the individuals full name and relationship to you.
………………”
The following day, on 15 November 2023, Mr Desira says that he spoke to Mr Mercer at around 3.00 PM about a photograph he took of a consultant earlier in the afternoon. He says that during the discussion Mr Mercer told him to go home for the day noting that he had the review meeting the following day and it was thought that Mr Desira was unable to focus.[1] On getting home and checking his emails he noticed an email from Mr Mercer at 4.08 PM which raised 4 issues requiring a written response. No date for the required response is noted in the email, nor is there any detail regarding date or time of the alleged incidents. He says that he did not provide a response to the email. While home he attended to his children, including an infant child and his partner.[2] The email received on 15 November read as follows:
“From: Kevin Mercer
Sent: Wed, 15 Nov 2023 16:08:19 +1100
To: Desira, Jackson
Cc: Bettina Monello
Subject: follow up on issues raised today 15/11/2023Hi Jackson,
As discussed with you this afternoon.
I have had a number of issues raised today by workers and the HSR that need a response from you in writing, please provide the facts regarding;1. Being inside SpeedPro equipment containers without authority and without a subcontractor representative present and tagging equipment and tools out of service.
2. Taking photos of VSL Worker without consent, of worker not wearing Hard Hat while in the construction site, heated discussion with the worker.
3. Discussion with HSR about taking photos of VSL Worker without consent, of worker not wearing Hard Hat while in the construction site.
4. Discussion with HSR about workers being under video surveillance within the construction site.
Regards,
…………”
Mr Desira further tendered in evidence the Acciona Performance Management and Disciplinary Action Procedure Policy. The purpose and scope of the policy is as follows:
“2. PURPOSE AND SCOPE
ACCIONA is committed to improving business performance by supporting and encouraging Employees to achieve and maintain the required high standards of behaviour and work performance.
This Performance Management Procedure is:
· designed to help and encourage all employees to achieve and maintain acceptable standards of conduct and aims to ensure that all employees are treated fairly and equitably in relation to performance, discipline and termination.
· intended to uphold the values and principles of the ACCIONA Code of Conduct (Code). All Employees must familiarise themselves with the Code.
· to apply to all Employees of ACCIONA and is to be read in conjunction with the ACCIONA Global Corporate Policy Book. This Procedure does not apply to:
o independent contractors; or
o any Employee whose employment is covered by an enterprise agreement.
· to be read in conjunction with the National Employment Standards (NES), any applicable Modern Award and each Employee’s contract of employment. Where there is a discrepancy between this Procedure and any of the above, the NES, Modern Award or contract of employment will prevail to the extent of the inconsistency.
· a guide only and does not form part of an Employee’s contract of employment and ACCIONA may vary, revoke or replace this Procedure from time to time at its discretion. To the extent that the procedure may impose obligations on ACCIONA, or form representations, those obligations or representations are only guidelines for the Company and are not to be relied upon by Employees to enforce as a contractual right.”
Section 4 of the above policy identifies that the HR Director is to be informed, consulted and is ultimately accountable for the correct and thorough completion of the Management Action of Termination. The policy does not identify any other designated person within Acciona that has all three responsibilities to affect a dismissal. By contrast the HR Manager has responsibility to do the work to achieve the termination and to consult, while the HR team’s role is consultation. The policy identifies the HR Director as Pilar Gomez, who is also the reviewer of the document. The document was approved by the CEO, Bede Noonan. Mr Desira relies on this part of the policy and says that the policy was not followed as the HR Director was not consulted prior to his dismissal.
However, the policy refers to the employee’s Manager and Department Manager, both having different responsibilities. The employee’s Manager is to be kept informed and to be consulted. However, the Department Manager has responsibility to perform the task and for the decision. This responsibility of the Department Manager contrasts with any other role identified in the policy. During proceedings, it was noted that at each step of the policy, reference is made to the Manager performing the task or making the decision. It was also noted that in step 4 – termination of employment, it states that the “Manager must discuss with Human Resources and the Corporate HR Director before proceeding with a meeting that may result in the termination of employment.”[3]
Further, Mr Desira contends that his interpretation of the date of dismissal is consistent with the language in the policy. In particular, he submits section 6.4.1, which concerns the process for termination, is drafted in future tense. Therefore he asserts that the dismissal could not occur at the meeting as the obligation requires the manager to advise the employee that their employment “will be” terminated and where a termination “is to occur following the conclusion of the meeting, the employee will be provided with a termination letter.”[4]
In addition, Mr Desira contends that the termination letter supports the interpretation as the second page states “we advised you that we had determined that your employment was to be terminated.” And then the use of present and past tense in relation to the inability to trust and the conclusion that “it is unfortunate that your employment with us must end this way,” supports the view that the letter reflects the date of termination.
He gave sworn evidence that the purpose of the meeting was to inform him of the outcome of a review into his performance. He further states that at the meeting of 16 November he was informed that the investigation found that he had “committed a serious breach of conduct” and he was being “given a first and final warning and would be placed on a performance management plan.”[5]
He also gave evidence that following the discussion on the investigation Ms Grbac stated that they would discuss the allegations raised on 15 November 2023. He states that when Mr Mercer also raised an incident that occurred on 2 November which was not referenced in the email of 15 November, he became upset because his recollections of the outcome of that event varied and he accused Mr Mercer of changing his position. He says on becoming upset, Ms Monello suggested a 5-minute break.
Mr Desira gave evidence that on returning to the meeting after the 5 minute break, Ms Grbac “said words to the effect, ‘during the recess, Kevin, Bettina, and I had a phone call with Sean Bonham. Sean has made the decision to that your employment will be terminated.’”[6] Mr Desira further states:
“10. I was shocked to hear this. I did not understand how I could be terminated in the same meeting where I was given a final warning and where I had been told I would be put on a performance plan.
11. Prior to the meeting, I had reviewed the Acciona Performance Management and
Disciplinary Action Procedure. Attached and marked “C” is a copy of this procedure. I knew that in accordance with section 6.4.1 of that procedure, where a meeting that may result in the termination of an employee is to occur, the employee’s manager must discuss the meeting with the Corporate Human Resources Director before proceeding. I knew the Corporate Human Resources Director to be Ms Pilar Gomez.
12. After Julia said that Sean had decided to terminate me, I said words to the effect, “How can that happen, that doesn’t comply with the Performance Management Procedure, you need to discuss termination with Pilar”. Julia replied by saying words to the effect, “we don’t have to speak with Pilar because Sean has made the decision”.
13. After the meeting ended, Kevin took the Acciona equipment which I had been using including a laptop and a sim card, and I returned home. I was very uncertain about my position, given the sudden shift which had occurred in the last part of the meeting. I knew that, under section 6.4.2 of the Acciona Performance Management and Disciplinary Action Procedure, following a meeting resulting in termination I was to be issued a written letter of termination. I did not receive such a letter on 16 November 2023.”
Despite the change in position to one of a first and final warning and performance improvement plan to being dismissed, Mr Desira states that the following day he was “uncertain” about his position and in a telephone call to Ms Monello he advised he may need to seek legal advice, and there were other job opportunities where he needs to know if he should accept therefore he sought a letter and his payslips as he was locked out of the Acciona system. A letter of termination was received by Mr Desira on 17 November 2023.
The Respondent’s submissions
The Respondent confirms that Mr Desira commenced employment as a Safety Coordinator on the Level Crossing Removal Project – Southern Program Alliance on 31 May 2022 and transferred to the Somerton Intermodal Terminal (SIT) Project on 29 May 2023. The Respondent submits that soon after transferring to the SIT Project there were performance issues and conduct concerns which resulted in a meeting on 6 July 2023. An email identifying the site requirements was issued to Mr Desira on 7 July 2023.[7] The Respondent submits that performance issues continued and provided a further example captured in email where Mr Desira failed to review documents relevant to audit requirements.[8]
Consistent with the Respondent’s Paid Parental Leave Policy Mr Desira took a period of leave (1 August – 19 September 2023). On return to the workplace the Respondent submits Mr Desira’s performance and conduct did not improve. Correspondence dated 9 October 2023 was attached to a meeting invite for 13 October to discuss 3 serious incidents alleging safety breaches and misconduct (27, 28 September and 5 October 2023). The correspondence states that due to the incidents the Respondent had determined to undertake a Safety Investigation which includes a Fair and Just Culture Review. The proposed process was to provide Mr Desira with the opportunity to respond, and following the meeting, the Respondent will review the information and undertake any further investigation prior to the outcome being determined. The correspondence further states “please be advised that this process may result in a disciplinary outcome, up to and including termination of your employment.”[9]
A further meeting was scheduled for 19 October 2023 to allow Mr Desira to provide information relevant to the Safety Investigation process.
A meeting was called for 16 November 2023 to discuss the conclusion to the Safety Investigation and Fair and Just Culture Review process, the intention was to inform Mr Desira of the “findings and outcome including any disciplinary action that may apply.”[10] On 15 November 2023 Mr Mercer sent to Mr Desira, who had already left work for the day, an email identifying 4 issues that were brought to his attention on the same day that required a written response.[11]
The Respondent submits that in the meeting of 16 November 2023, it presented the findings of the safety investigation process and the contents of Mr Mercer’s email of 15 November was discussed in detail.[12]
The Respondent submits that Mr Desira was given an opportunity to provide an explanation if he was to continue in his role and after considering his response, it advised him that his employment was to be terminated effective immediately with notice paid in lieu.
Ms Julia Grbac gave evidence. She describes her role as Head of People and Culture is to brief and provide recommendations to Sean Bonham (Executive General Manager) for all disciplinary outcomes. She gave evidence that after Mr Desira responded to the investigation outcome and the additional allegations raised the day before, a five minute break was called to confer with Mr Bonham to determine the final disciplinary outcome.[13] She states that during the break she “reached out to Mr Bonham to confirm that the Applicant’s employment should be terminated immediately.”[14] In addition Ms Grbac gave the following evidence:
“16. I said that in consideration of all these factors, the decision had been made to terminate his employment, effective immediately (with payment being made in lieu of notice). I refute the Applicant’s claim that his employment was not terminated during this meeting. The decision to terminate his employment, and the effective date of that termination, was communicated to him in very clear terms during the meeting on Thursday, 16 November 2023.
17. Before the meeting ended we discussed with the Applicant the return of IT equipment (which he had present with him), and the collection of an assigned Tool of Trade vehicle from his home. I also informed the Applicant that a letter confirming the termination decision that had been made would be sent to him.
18. I refute the Applicant’s claim that Ms Pilar Gomez (Acciona’s Human Resources Director) was mentioned during this meeting. I made it clear during the meeting that that Mr Bonham was the ultimate decision maker on any disciplinary outcome, and that he had made the decision to terminate the Applicant’s employment.”[15]
Ms Grbac states that after the break when they all returned “to the meeting room and I informed the Applicant that all of the information that had been obtained had been considered.”[16] She further states that before the meeting ended the return of company property was discussed including the company vehicle and although Mr Desira alleges procedure was not followed by not consulting the HR Director prior to his dismissal Ms Grbac refutes that there was mention of Ms Pilar Gomez (Acciona’s Human Resources Director) during the meeting. She states that “I made it clear during the meeting that Mr Bonham was the ultimate decision maker on any disciplinary outcome, and that he made the decision to terminate the Applicant’s employment.”[17] She further confirmed that she reviewed the termination letter signed by Mr Bonham and authorised its release to the Applicant.
Mr Kevin Mercer, Project Director on the SIT project gave evidence that there were serious concerns with Mr Desira’s performance and conduct, citing various incidents in addition to those contained in the safety investigation letter and his email of 15 November 2023. He described the nature of works for the first 6 months of the project (May to November 2023)- low intensity site preparation with routine works by experienced and mature workforces of the Company’s construction partners. He states that workforce numbers grew with works across the site increasing mainly from January 2024.
On 15 November 2023, Mr Mercer states that a number of workers and a health and safety representative raised concerns about Mr Desira. When he met with Mr Desira that afternoon, he states that he conveyed what had been raised and that he would send him an email containing a description of the concerns for a response before sending him home.[18]
Mr Mercer gave evidence that by 16 November 2023 he developed serious concerns about Mr Desira’s performance from failure to complete daily tasks relating to the position, not working as a team player, engaging in unsafe practices and behaviour that was disruptive to workers, the project and workforce harmony.[19]
Mr Mercer attended the meeting of 16 November 2023 and states that Mr Desira was informed that he was dismissed with immediate effect. He further has no recollection that there was any reference made to Ms Gomez, HR Director. In addition, Mr Mercer gave evidence that he has “no doubt, based on what the Applicant was told during the meeting with the Applicant in the morning, the Applicant’s responses during the meeting, and then collecting the work vehicle from the Applicant at his home later that day, that the Applicant clearly understood that his employment with Acciona had been terminated.”[20]
Ms Bettina Monello, Senior Human Resources Business Partner gave evidence of her role as business partner with managers and her direct involvement in management’s concerns regarding Mr Desira’s conduct and performance. She described the process for initiating the Safety Investigation and Just and Fair Culture Review. Ms Monello was present at the meeting of 16 November which was intended to present the findings and outcomes of the investigation and any disciplinary action. Ms Monello stated in her witness statement that since the invitation to the meeting on 14 November there were several additional safety incidents raised by Mr Mercer that were also put to Mr Desira to respond to. (I observe that no advance notice was given that these issues would be discussed at the meeting) During this meeting she formed the view that Mr Desira did not comprehend the gravity of his actions and therefore was concerned that such conduct was likely to continue.[21]
Ms Monello gave evidence that following a short break, that Ms Grbac informed Mr Desira that his employment was terminated immediately “effective that day”. She further gave evidence that the break was for the purpose of Ms Grbac conferring with Mr Sean Bonham to receive his “final determination concerning a final outcome of the matters we had canvassed.”[22] She states that it “was made clear to the Applicant at this meeting, and in previous conversations with him, that Mr Bonham was the only person in the Company who could make a decision regarding his employment.”[23]
Ms Monello rejects the evidence of Mr Desira that he referred to Ms Gomez during the meeting. Attached to her witness statement, Ms Monello provided a copy of the confirmation of project transfer and entitlement to a tool of trade vehicle both signed by Mr Sean Bonham, the email of 7 July 2023 from Mr Robin Williams, Safety Manager about concerns with performance and conduct and expectations going forward, including documents pertaining to the investigation and termination of employment.
Consideration- Date of dismissal
Whether Mr Desira was dismissed and the date of the dismissal must be determined.[24] It is not contested whether Mr Desira was dismissed by Acciona as defined by s.386 of the Act, simply the date of dismissal is in dispute between the parties.
A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware.[25] A dismissal is affirmed and takes effect when it is communicated to an employee.[26] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[27]
On 16 November 2023, Mr Desira was aware that his employment had been dismissed. In his witness evidence he says that he could not understand how in the same meeting he was to be given a first and final warning, that it changed to a termination of employment- a decision made by Sean Bonham, the Executive General Manager of Acciona. Following the words that “your employment will be terminated,”[28] Mr Desira’s laptop, sim card and motor vehicle were retrieved from him. During cross examination Mr Desira further states he was informed that he would be paid in lieu of notice and could not return to the site to retrieve his personal belongings. He further gave evidence that his access to the internal HR system did not allow him to access his payslips. He says that he had expected a letter of termination within half an hour of the meeting[29] but had to chase up the letter the following day including copies of his payslips to seek legal advice and consider alternative employment options.
While Mr Desira objected to the decision and he alleges that he questioned the authority of the decision insisting that the decision rests with the HR Director, (which the Respondent’s 3 witnesses deny any discussion regarding the HR Director took place) he did state that he expected to be dismissed which is the reason he drove to work in his private vehicle rather than the company vehicle so that he could collect his son from day care in his own vehicle.[30]
Further when cross examined about the meeting with Mr Mercer on 15 November, he stated that he was sent home because “I wasn’t in the right mental state because I had an impending termination meeting the next day.”[31]
On this evidence Mr Desira was informed in clear and unambiguous terms that his employment was dismissed on 16 November, the actions of Acciona made clear that the employment relationship was terminated with the return of company property, the prevention to return to site and cancellation of access rights to internal systems. I am also satisfied that Mr Desira not only knew his employment was terminated, but he also expected the outcome from the meeting.
For the purpose of these proceedings Mr Desira relies on the Acciona Performance Management and Disciplinary Action Procedure Policy insisting that the procedure requires the HR Director to be consulted and to make the decision regarding dismissal and that a letter is issued confirming the dismissal and thereby concluding the process. I do not agree with Mr Desira. There is no evidence that a decision to dismiss can only be made by the HR Director, the policy identifies the Department Manager with the responsibility to make the decision- this responsibility does not rest with the HR Director. While the policy contains detailed guidance, it is a guidance document and any failure to follow the policy as interpreted by Mr Desira does not annul the actions of dismissal by Acciona on 16 November 2023. There may be dispute regarding application of the policy, however, it is the actions of Acciona on 16 November that effected the dismissal.
In addition, I am not satisfied that the use of past, present or future tense in the policy and letter of termination supports a dismissal on 17 November 2023. I am satisfied that Mr Desira was told his employment was dismissed immediately, with notice to be paid in lieu after the 5 minute break when Ms Grbac clearly announced the decision to dismiss, and by the actions of the parties, it was understood that the dismissal was effected.
During proceedings Ms Grbac had to be recalled to give evidence when it was revealed that she in fact did not speak to Mr Sean Bonham during the 5 minute break on 16 November 2023. Her witness statement uses language that she “reached out to Mr Bonham to confirm the Applicant’s employment should be terminated immediately.”[32] However, she admitted to not speaking to Mr Bonham and a decision was made to dismiss Mr Desira based on a discussion between Ms Grbac and Mr Bonham on the evening of 15 November 2023. If the decision to dismiss on 15 November 2023 was made, and as she states if no explanation from Mr Desira dissuaded a decision to dismiss, it is confusing why she stated that based on the review a first and final warning was appropriate, however, given the complaints of 15 November a dismissal was probable prior to the parties taking a break. On returning from the break, she misled both Mr Desira in the meeting and in these proceedings this Commission, that Mr Bonham was consulted immediately before Mr Desira was informed of his dismissal. Despite this turn of events, which may be a matter for Acciona regarding their internal processes and whether Ms Grbac acted within her authority, the fact remains that the evidence was that Mr Desira was dismissed on 16 November 2023.
Application for extension of time
Having determined the date of dismissal is 16 November 2023, Mr Desira’s application is one day late. General Protections applications must be made within 21 days of the dismissal. However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
“366 Time for application
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
I now turn to Mr Desira’s application for an extension of time in relation to each of the considerations in s.366(2). It is important to consider the meaning of ‘exceptional circumstances’ as was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[33] where it was held that:
“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 which, 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 regular occurrence, even though it can be a on 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.”[34]
The reason for the delay
Mr Desira contends that he genuinely understood that his termination took effect on 17 November 2023 when he received the letter of termination. In any event, he submits, if I was to find the dismissal took effect on 16 November, the application is only one day late due to a genuine mistake and exceptional circumstances exist for an extension of time. It is further submitted that it was reasonable to form the view that the dismissal took effect on 17 November as the Respondent’s actions contributed to the confusion. He adds that he acted within 2 business days of the dismissal to obtain legal advice. Given the actions of 16 November, no explanation was given for leaving the application to be filed on what he describes as the last day, particularly in light of the short application he lodged. It is also curious that the application[35] simply refers to the events of 16 November when further allegations were put to Mr Desira, absent the significance of the scheduled meeting where he admits having been advised that his employment was to be terminated.
Acciona submit that there are no exceptional circumstances and rely on authorities that identify the bar for extensions of time as “a high hurdle”[36] and that the delay of even one day is not the point.[37] Acciona further relies on the evidence that the invitation to the meeting on 16 November was a disciplinary meeting, that he was informed in clear and unequivocal terms that his employment was terminated that day, that he was not surprised by the outcome and the actions of retrieving property evidenced the dismissal. It submits that Mr Desira’s submissions regarding date of dismissal were disingenuous.
Having considered the evidence regarding date of dismissal I am not satisfied that there was any confusion on the part of Mr Desira that his employment was dismissed on 16 November 2023. The concluding words and actions were clear on 16 November, any alleged failure by Acciona to strictly follow its procedure and/or any deficiencies in the letter including failure to affirm the dismissal on 16 November is disingenuous to allege that there was genuine confusion. I am not satisfied that the reasons for delay are exceptional to weigh in favour of an extension of time.
Actions taken to dispute the termination
Mr Desira submits this consideration has no application and is neutral. Acciona however submit that no action was taken by Mr Desira other than a phone call to Ms Monello on 17 November seeking copies of his payslips and the letter of termination to seek legal advice and consider employment opportunities.
I am satisfied that Mr Desira took no steps to challenge his dismissal other than the filing of this application, therefore on this basis this factor does not weigh in his favour.
Prejudice to the employer
Mr Desira submits there is no prejudice therefore this consideration should weigh in favour or at least be considered neutral.
Acciona while not identifying any prejudice submit that the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.”[38]
I agree that the absence of prejudice is unhelpful in favouring an extension of time, and this consideration is neutral.
Merits of the application
Mr Desira contends that his dismissal was due to his carer responsibilities including the taking paid parental leave consistent with Acciona’s paid parental leave policy. He submits the dismissal and the unfair and antagonistic action by management on his return from leave was adverse action and a contravention of s.351 of the Act. Despite this, Mr Desira submits that these proceedings do not represent an occasion for the Commission to enquire into the substantive merits.[39] He submits there is no evidence before the Commission for a finding that the application is without merit.
Acciona contend that Mr Desira has not adduced any evidence in support of his application in support of the merit consideration, instead he simply made “bold assertions.”[40] Contrasted with the evidence of the Respondent that performance and conduct led to the dismissal, the Commission ought to consider this against the extension of time application.
Acciona’s evidence of performance and conduct concerns were raised with Mr Desira prior to the taking of parental leave and carer responsibilities and these concerns continued until the dismissal on 16 November 2023. Mr Desira challenges the evidence and submits that he was denied procedural fairness, that the allegations were false or unsubstantiated and that he was denied the resources and support to perform his role. He submits that prior to transferring to the SIT project there were no prior concerns with his performance.
During proceedings there was no assessment of the evidence relating to merits. Mr Desira gave some evidence during cross examination, however this was insufficient to form any credible assessment of merits. The Respondent’s witnesses were also cross examined and no credible weight can be given to either the merits of Mr Desira’s application or Acciona’s reasons for dismissal. Acciona‘s strong submissions were that Mr Desira was dismissed for conduct and performance, yet Mr Mercer could not recollect critical events referred to in his witness statement without referring back to his notes. The evidence of Ms Grbac may have revealed deficiencies in the process, although the application is one of general protections and not unfair dismissal. For this reason, no weight in favour or against an extension of time in terms of merit can be given. I find this consideration a neutral factor.
Fairness between the person and other persons in a like position
Mr Desira contends that there are no relevant persons or cases which would be relevant to the question of fairness. Acciona submit the consideration of fairness is neutral. I do so find this consideration neutral as no evidence of a person or persons in a like situation has been raised.
Conclusion
In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
It is on the balance of each of the considerations in s.366(2) that I have decided not to grant an extension of time. In regard to prejudice, merit and fairness I find them to be neutral considerations and I am not persuaded to find in favour on reason for delay and actions taken to dispute the dismissal.
In conclusion having considered all of the evidence and submissions against each of the factors, (a) – (e) set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.
An order[41] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
E Twomey for the applicant.
D Fleeton for the respondent.
Hearing details:
2024.
Melbourne (via Microsoft Teams):
February 21.
Final written submissions:
Applicant, 1 February 2024
Respondent, 15 February 2024
[1] Exhibit A1 - Statement of Jackson Deira, [3].
[2] Ibid, [4].
[3] Attachment C to Exhibit A1 - Termination of Employment in the Performance Management and Disciplinary Action Procedure, Section 6.4.1.
[4] Ibid; Applicant’s Outline of Argument, Digital Hearing Book (‘DHB’), [7]-[9].
[5] Applicant’s Oral Evidence; Applicant’s Outline of Argument, DHB, [4] referring to [6] in Exhibit A1.
[6] Exhibit A1, [9].
[7] Attachment 1 to Form F8A – Response to a general protections application involving dismissal (‘Form F8A’) - Email from R. Williams, Safety Manager Somerton Intermodal Terminal, dated 7 July 2023.
[8] Attachment 2 to Form F8A - Email from R. Williams, Safety Manager Somerton Intermodal Terminal, dated 22 July 2023.
[9] Attachment 3a to Form F8A - Meeting invitation from B. Monello, dated 13 October 2023; Attachment 3b to Form F8A - Letter from S. Bonham, Executive General Manager, South West, dated 9 October 2023.
[10] Attachment 6 to Form F8A - Meeting invitation from B. Monello, dated 16 November 2023.
[11] Attachment 5 to Form F8A and Attachment B to Exhibit A1 - Email from K. Mercer at 4.08pm on 15 November 2023.
[12] Exhibit R1 – Statement of Julia Grbac, [12]-[13].
[13] Ibid, [12].
[14] Ibid, [14].
[15] Ibid, [16]-[18].
[16] Ibid, [15].
[17] Ibid, [18].
[18] Exhibit R2 – Statement of Kevin Mercer, [16]-[18].
[19] Ibid, [10]-[14].
[20] Ibid, [23].
[21] Exhibit R3 – Statement of Bettina Monello, [23]-[25].
[22] Ibid, [26].
[23] Ibid, [27].
[24] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
[25] Ayub v NSW Trains[2016] FWCFB 5500, [36].
[26] Ibid [11].
[27] Foyster v Bunnings Group Ltd[2017] FWCFB 3923, [17].
[28] Oral evidence of Jackson Desira.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Exhibit R1, [14].
[33] [2011] FWAFB 975.
[34] Ibid, [13].
[35] Form F8- General protections application involving dismissal (‘Form F8’), [3.1].
[36] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].
[37] Ozsoy v Monstamac Industries[2014] FWC 479 [30].
[38] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[39] Applicant’s Outline of Argument, DHB, [21].
[40] Respondent’s Outline of Submissions, DHB, [5.11].
[41] PR771689.
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