Kenny Goh v Fisher & Paykel Australia Pty Ltd

[2024] FWC 2510

[2024] FWC 2510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kenny Goh
v

Fisher & Paykel Australia Pty Ltd

(U2024/9166)

DEPUTY PRESIDENT COLMAN MELBOURNE, 16 SEPTEMBER 2024

Application for an unfair dismissal remedy – whether to extend time – application dismissed

1. Kenny Goh (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Section 394(2) of the Act requires such applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant said that the dismissal occurred on 24 April 2024, when he was forced to resign. Fisher & Paykel Australia Pty Ltd (respondent) denies that the applicant was forced to resign or that he was otherwise dismissed. I proceed on the basis that if the applicant was dismissed from his employment with the respondent, the dismissal occurred on 24 April 2024. The 21-day period therefore ended on 15 May 2024. The application was lodged on 7 August 2024. In order for the application to proceed, the applicant requires an extension of time. The Commission may only extend time if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 394(3)(a) to (f).

1. As to the reason for delay (s 394(3)(a)), the applicant said that he had sought to contact the respondent about his dismissal and certain unpaid entitlements but only received a response in late July 2024. He said that he had wanted to engage in settlement discussions with the respondent before lodging his claim. This is not a good or reasonable explanation for the applicant’s delay in filing his unfair dismissal claim. The applicant could have lodged his application within time and then had settlement discussions. The reason for the delay weighs against an extension of time.

1. As to the matters in ss 394(3)(b), (c), (d) and (f), I note the following. First, the applicant does not contend that he became aware of the dismissal after it took effect (s 394(3)(b)). This is a neutral factor. I accept that the applicant took some action to dispute his dismissal by contacting the respondent about his dismissal (s 394(3)(c)). This weighs moderately in favour of an extension. There is no prejudice to the employer (s 394(3)(d)). I consider this to be a neutral factor. In my view, there are no matters that are relevant to the question of fairness between the applicant and other people in a similar position (s 394(3)(f)).

1. As to the merits (s 394(3)(e)), the applicant submitted that he was forced to resign from his employment because the respondent had wrongly decided to investigate him in relation to alleged failures to follow safety protocols. He said that he could not run the risk of being dismissed because he had recently taken out a home loan and would need to find work urgently if the company terminated his employment. The applicant said that the investigation had taken more than 2 weeks and was further delayed on 24 April 2024. He said that he was forced to resign to seek alternative employment. The respondent submitted that the applicant was not forced to resign but did so freely in an email on 23 April 2024. It said that the applicant was not dismissed, and that the Commission had no power to award him an unfair dismissal remedy. It is difficult to see how this case could be regarded as one of forced resignation. The applicant could have looked for other work while waiting for the respondent’s investigation to be concluded. In my view the merits weigh against an extension of time. But even if the merits are regarded as a neutral consideration, it does not affect my overall assessment.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. The unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

K. Goh for himself
L. Ferguson and M. Turner for Fisher & Paykel Australia Pty Ltd

Determinative conference:

2024
Melbourne (by telephone)
16 September

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