Mr Abhay Dhoke v Dome Garden Supplies

[2014] FWC 4561

[2014] FWC 4561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Abhay Dhoke
v
Dome Garden Supplies
(U2014/6865)

COMMISSIONER ROE MELBOURNE, 8 JULY 2014

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Mr Abhay Dhoke (the Applicant) in respect of dismissal by Dome Garden Supplies Pty Ltd (the Respondent).

[2] The Applicant filed his application on 28 April 2014. The Applicant in his Application form says that he was employed from 3 October 2011 and that he travelled from New Zealand to take up the employment. The Applicant says that he was provided with a termination letter by a Director of the Respondent on 21 March 2014. The Applicant submits that the date of termination was changed to 24 March 2014. The Applicant says that he “travelled overseas due to (the) emotional and mental shock of losing the job which was the basis of my coming and settling in Australia”. The Applicant notes that 25 April 2014 was the Anzac day public holiday.

[3] The Applicant failed to attend the hearing of this matter on 27 June 2014. At the hearing of the matter I advised the Respondent employer of my preliminary views based upon the material before me. I advised that I would provide the Applicant with seven days in which to provide reasons for his non-attendance at the hearing and also to provide any further submissions he may wish to make as to why extension of time should be granted. I indicated that I would then make a decision unless I considered that any additional material provided by the Applicant required a response from the Respondent.

[4] The Applicant responded on 28 June 2014. In respect to the issue of non-attendance at the hearing the Applicant said:

“I am now trying hard to come out of incidence (sic) by focusing on job and getting back into professional life. Only telephonic conference was possibility. I should have consulted you on this matter before and informed. Please accept my apology for same.”

[5] My Associate then advised the Applicant as follows:

“The following options are now available and the Commissioner seeks your urgent advice as to which option you wish to follow.

a. You can discontinue or withdraw your Application for an unfair dismissal remedy in matter U2014/6865. If you wish to adopt this option you can advise us by return email. OR

b. The Commissioner can make a decision about whether or not there are exceptional circumstances warranting an extension of time based upon the material which is now before him. If you wish to adopt this option you can advise us by return email. OR

c. You can provide the Commissioner with any further submissions you might wish to make about why an extension of time should be granted. The Commissioner may then issue a decision in this matter or if he considers substantial issues are raised in your response he may request the Respondent employer to respond to the issues raised before making a decision. If you wish to adopt this option you should advise us by return email together with any further submission you might wish to make about why an extension of time should be granted.

In any case your response is required by no later than Monday 7 July 2014. In the event that you fail to respond the Commissioner may issue a decision without further hearing or process. This might include a decision to dismiss the Application.”

[6] There was further correspondence and the need for the Applicant to provide a response was reinforced in correspondence of 4 July 2014. The Applicant responded on 7 July 2014 that:

“I provided all evidences and now I request Commission to take decision whether it was unfair dismissal or not? I did suffer during the month of March/April and May with lot of stress and anxiety. I leave the decision in your good hands.”

[7] As has been made clear to the Applicant on a number of occasions the Fair Work Commission cannot determine whether or not the dismissal was unfair in this case without first deciding the question of whether or not to grant the Applicant an extension of time within which to make his Application. This decision deals with the question of whether or not to grant that extension of time. If exceptional circumstances warranting an extension of time are not found to exist then that is the end of the matter, the Fair Work Commission cannot then proceed to determine the merits of the unfair dismissal application.

[8] I must determine the question in accordance with Section 394(2) of the Fair Work Act 2009 (the Act) which provides as follows:

“(2) [Standard time limit] The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).”

[9] Subsection 394(3) provides:

“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[10] It is accepted that the Application was not made within 21 days of the dismissal taking effect. I must therefore consider whether or not there are exceptional circumstances taking into account the six matters listed.

[11] The Respondent submits and it is not in contention that the reason for the termination as advised to the Applicant was redundancy. The Respondent submits that it was agreed to pay the Applicant sick leave up until 24 March 2014.

[12] I am satisfied that the evidence supports a conclusion that the dismissal took effect as submitted by the Applicant from 24 March 2014.

[13] The Application is therefore 14 days late.

[14] There is no evidence or submission that the Applicant took any steps to dispute the termination between 24 March 2014 and the date upon which he lodged his Application.

[15] I am not satisfied that because the Applicant travelled to New Zealand he was necessarily unable to obtain information from the Fair Work Commission web site or other appropriate site about his entitlement to lodge an application for unfair dismissal and to take the necessary steps to lodge such an application. In this regard travel from Australia to New Zealand is quite different from travel from Australia to more remote locations where communication difficulties may exist. A large number of New Zealand citizens work in Australia, there are very few restrictions on travel and work rights between the two countries and it is common for New Zealanders who work in Australia to spend periods of time back in New Zealand. It is not uncommon for Australian and New Zealand workers to travel to New Zealand for short periods of time to visit family or attend sporting fixtures.

[16] There is no evidence or submission that the Applicant was incapable due to a medical condition to contest his termination or complete an application. I accept the submission of the Applicant that he was suffering a “lot of stress and anxiety” but there is no evidence or submission that this made him incapable of contesting his termination or completing an application.

[17] I am satisfied and it is not in contention that the Applicant was made aware of the termination on 21 March 2014 and that the termination took effect from 24 March 2014.

[18] The Anzac Day public holiday is not a relevant consideration as 21 days after 24 March is 14 April 2014.

[19] The Respondent accepts that it would suffer no prejudice as a result of the acceptance of the late Application.

[20] The Respondent submits that the merits of the matter stand against the granting of an extension. The Respondent submits that redundancy entitlements were paid, there were no prospects for redeployment, there was a genuine restructure following a fire, the applicant was paid the required notice and was paid severance payment despite the Respondent being a small employer. The Respondent accepts that there are associated companies in the Dome group but submits that it considered all options for redeployment within the group.

[21] The Applicant submits that the termination was not a genuine redundancy and that the termination resulted from a disagreement and was in response to his temporary absence due to illness.

[22] The Respondent submits that fairness as between the person and other persons in a similar position is not a relevant matter in this case.

[23] I am satisfied that the Applicant was aware of the dismissal before it took effect; that no action was taken to dispute the dismissal prior to the lodging of the Application; that there is no particular prejudice to the employer; and that the issue of fairness between the Applicant and other persons is not relevant. Section 394(3)(b),(c),(d) and (f) are neutral factors in this case.

[24] I am not prepared to accept the submission of the Respondent that the case is without merit given the contrary submission and plausible alternative explanation of the Applicant. In the absence of further evidence I consider that the merits of the matter is also a neutral factor (Section 394(3)(e)).

[25] I consider that the Applicant has not established that there are any reasons for the delay which could constitute exceptional circumstances (Section 394(3)(a)). None of the factors which I am required to take into consideration therefore support a finding of exceptional circumstances.

[26] I am therefore not satisfied that there are exceptional circumstances warranting an extension of time. The Application is dismissed.

COMMISSIONER

Appearances:

Mr S Millard appeared for the Respondent.

Hearing details:

2014

Melbourne

June 27

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<Price code C, PR552891>