Mr Dimitar Gliguroski v Aurecon Australasia Pty Ltd
[2025] FWC 99
•14 JANUARY 2025
| [2025] FWC 99 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dimitar Gliguroski
v
Aurecon Australasia Pty Ltd
(U2024/13749)
| DEPUTY PRESIDENT CROSS | SYDNEY, 14 JANUARY 2025 |
Application for an unfair dismissal remedy – 3 days out of time – no exceptional circumstances – application dismissed.
On 18 November 2024, Mr Dimitar Gliguroski (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Aurecon Australasia Pty Ltd (the Respondent). The Applicant commenced his employment with the Respondent on 19 November 2019. The Applicant claimed he was notified of his dismissal as a redundancy on 14 October 2024, and confirmed on his Form F2 that the dismissal took effect on 25 October 2024.
Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. An application for a remedy should have been lodged by 15 November 2024. The Application was therefore lodged outside of the time prescribed and was lodged 3 days after the last day on which such an application could have been made.
On 10 December 2024, the matter was allocated to my Chambers and on that same day Directions were issued to determine the programming of the matter. The Directions were:
FINAL DIRECTIONS
[1] This matter is listed for Hearing before Deputy President Cross at 2:00PM on 14 January 2025 to hear and determine the questions of the effective date of dismissal and whether to extend the time for filing (the Jurisdictional Issue).
[2] By no later than 4:00PM on 17 December 2024 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
· The reason(s) for the delay;
· Whether the Applicant first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position.
[3] By no later than 4:00PM on 27 December 2024 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.
[4] By no later than 4:00PM on 3 January 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.
Important note: Failure to comply with these Directions or to attend the Conference/Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.
The Applicant filed two Statements. The Respondent filed an outline of submissions and a Statement from Amelie MacLaren (the MacLaren Statement).
The Hearing took place on 14 January 2025.
Background Facts
The Applicant initially commenced employment with the Respondent on 19 November
2019 on a casual basis in the position of Undergraduate Surveyor. On 7 February 2022, he commenced employment on a full-time basis, initially in the position of Surveyor, Aurecon Level 3. He was later promoted to the position of Surveyor, Aurecon Level 4.
After a review of the team in which the Applicant worked, it was determined that three full time employees would need to be made redundant. On 21 October 2024, after consultation, the Applicant was advised that his role would be redundant.
The Applicant’s employment was terminated due to redundancy on 25 October 2024 because his role was no longer required due to changed market conditions.
On 7 November 2024, the Applicant emailed Ms Gemma Keane, the NSW & ACT Region Land and Water Leader, to whom the Applicant eventually reported before his redundancy. In what was a long and detailed email, the Applicant clearly raised issues about the alleged unfairness of his dismissal. That email concluded:
“As you understand, this is a time sensitive matter now that I have been terminated and I am requesting a timely resolution to the underpayment issue. If a reasonable outcome is not met, I will be re-initiating communication with Fair Work, including supplying full correspondence from the last year which shows the non-urgency to solve the matter as well as filing an unfair dismissal claim given the context surrounding myself and three others involved.”
On Friday, 8 November 2024, the Applicant sent Ms Keane a follow-up email
seeking confirmation that his 7 November email had been received and seeking a response by close of business that day.
On Monday, 11 November 2024, the Applicant sent Ms Keane a further email stating:
Thanks for the confirmation. Just to remind you that an unfair dismissal must be submitted by this Friday (if I were to do so), as that is 21 days after my termination. So please get back to me by Wednesday 13th November COB with correspondence regarding steps going forward.
On Wednesday, 13 November 2024, the Applicant sustained an injury while mountain biking, resulting in a herniated disc in his C5-C6 vertebrae. He stated this left him bedridden with severe pain and significantly limited his ability to manage administrative tasks from Thursday, 14 November 2024.
On Thursday, 14 November 2024, once the requested information had been gathered, Ms Keane sent a further email to the Applicant attaching a letter which responded to the matters raised in the 7 November 2024 email.
On Thursday 14 November 2024, the Applicant had a teleconference with his GP due to his limited mobility. He was referred to a physiotherapy specialist under an Enhanced Primary Care Plan. On Tuesday 19 November 2024, that plan was finalised and ready for collection. The Applicant annexed to his statement a notice of referral from Dr Peter Parras to Lifecare St George Physiotherapy dated 19 November 2024. The Applicant also attached a note from Dr Parras dated 17 December 2024, titled “To Whom it may Concern” that stated:
The above-named patient reports that he suffered a mountain bike accident on 13.11.24.
He suffers neck pain as a result.
He reports that he was in a dazed condition and was unable to think clearly
He was later referred for physio.
On Sunday, 17 November 2024, at 1.05pm, the Applicant sent Ms Keane a detailed email responding to her email of Thursday, 14 November 2024. The full text of that email was as follows:
Gemma,
Addressing your reply dated 14/11/2024.In part 3a, you state “Aurecon provided you with sufficient information in order for you to understand the nature of the organisational change resulting in the redundancy of your role, including the group briefing to impacted individuals held on 14 October 2024 and the follow up email from Rowenna Walker sent on 14 October 2024. The business reasons for the redundancy were further explained to you in the meeting with Martin Nowak and Gabrielle Scott-Clark on 14 October 2024”
I still have issues with the nature of this redundancy.
· I once again question the legitimacy of the ‘business reasons’ for redundancy given the nature and context of the four surveyors who were recently made redundant, as I clarified in my previous email.
· If there was insufficient work, as per your reasoning, then why is there currently a short staff issue within the team where they have been requested to work overtime to compensate for all the redundancies.
· The criteria for selection for the four employees (including myself) has STILL not been recognized by yourself, nor was it clarified by Martin in any meeting during consultation. It remains that the selection was targeted, as I informed you the four people made redundant were also the same four who have voiced their concerns regarding Aurecon’s illegal overtime rates and underpayment.
Surveyor Team overtime queries
1. You allege the queries regarding overtime were addressed by Martin on 5/7/2024. I will once again remind you they were not, this meeting was also recorded, so feel free to watch that again and point out exactly to me where the issue was clarified. Nothing was finalized in this meeting, it was stated that it will still be followed up, but was not done so appropriately nor in any written format.
Allowances and overtime payments
2. “Under the Surveying Award, overtime and penalty rates are a percentage of the minimum award rate”
a. Yes, this is correct, but we were not paid these correct rates.
3. “Aurecon offers an annual salary that is above the minimum that includes compensation for minimum award entitlements. Such as minimum overtime and penalty rates. This means employees are generally not entitled to receive overtime pay and penalty rates on top of their salary because your salary payments exceed and ‘set off’ the award minimum payments”
a. Yes, Aurecon does offer a salary above the minimum. However, the amount above the minimum is to the order of about $1-3 per hour, which is nowhere near enough to compensate for the overtime percentage rates stipulated in the award, nor the allowances.
b. You state we are generally not entitled to receive overtime pay/penalty rates on top of the salary. Again I remind you that for lower paid employees who are only slightly above the award rates, there is a significant underpayment, which if you actually analysed the calculations you were presented by myself you would have understood there is an issue here.
4. “We have however, paid discretionary overtime to you at your actual rate of pay and these amounts are also applied to and satisfy award minimum overtime and penalty rate pay.”
a. Reminding you once more, my actual rate of pay was only slightly above the award, which means the ‘discretionary overtime rates’ (which have never been agreed upon or discussed and change frequently) were not enough to cover the minimum required overtime pay, as shown in my attached calculation.
5. “We have undertaken an investigation into the amounts paid to you and confirm that you have been compensated adequately for the overtime worked”
a. I would like to see evidence showing the investigation into the rates and how you came to this conclusion. As I informed you, my calculations were performed on the advice of fair work who confirm I was paid below the award minimum. You have provided no information on how the rates were derived, nor proved I have been receiving adequate remuneration. I also remind you I mentioned how overtime spreadsheets were illegally altered after having been submitted without consultation in the team, after arriving at verbal agreements. You have also not recognised this issue.
Therefore, the largest concern of underpaid overtime remains unresolved, which I made very clear in the past email. Within the survey team, there has been continuous suspicious behaviour regarding these rates including the lack of correspondence or documentation setting entitled rate. The only clarification we received was regarding penalty rates on public holidays, which Amelie Maclaren clarified that should be based off the award, as should all overtime payments. In this same meeting, it was confirmed that public holiday OT was now clarified, and general OT will be clarified ‘soon’, which has still not been done.
There are many problems with your response which have not adequately clarified these issues. I disagree with your verdict of having been paid sufficiently in past OT work, it is clearly documented in my calculation this is not the case. As a result of your inadequate response, I now request further review of this matter with Liam, Martin and Amelie.
You have been given substantial time to resolve this matter, so I will now also be pursuing this further based off fair works advice.
The Applicant filed the Application on 18 November 2024.
Consideration
Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:
“(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).”
As the Application was lodged outside of the 21-day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:
“(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.”
It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.
(a) Reason for the delay
When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 stated at [30]:
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
[Emphasis added]
A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”
Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.
In his Form F2, the Applicant incorrectly noted that his Application was made within the 21-days limit. In his Statement, he provided the following:
By Monday, 18 November, I had filed my claim, just three days outside the prescribed period. However, at the time, I thought this was within the 21 day period, which is why I ticked yes to the form being lodged in time, but I had miscalculated as I was on strong painkillers which contributed to this oversight.
[Emphasis added]
Further, in his Statement, the Applicant submitted as “The reason(s) for the delay”, the following:
On Wednesday, 13 November 2024, I sustained an injury while mountain biking, resulting in a herniated disc in my C5-C6 vertebrae. This left me bedridden with severe pain and significantly limited my ability to manage administrative tasks from Thursday, 14 November. During this period, my focus was on managing pain and attending medical appointments. On Thursday 14 November, I had a teleconference with my GP due to my limited mobility, where I was referred to a physiotherapy specialist under an Enhanced Primary Care Plan.
Essentially there were two interconnected reasons advanced by the Applicant for his delay, being:
(a) The Applicant’s Mountain biking injury and the influence of painkillers; and
(b) The Applicants miscalculation of the 21-day time period due to the aforementioned use of the painkillers.
I do not accept that either reason provides any explanation for the delay. In his correspondence with Ms Keane after his dismissal the Applicant clearly outlined his alleged rights, and in the email of 11 November 2024 clearly and correctly identified the impending filing date by 15 November 2024.
I particularly note that in the period of delay from 15 to 18 November 2024, the Applicant was able to send the detailed email of 17 November 2024. That correspondence establishes that in that period of delay the Applicant was clearly capable of advocating his case, and correspondingly filing the Application.
As to the two notes from Dr Parras, those certificates go nowhere near establishing the Applicant was somehow precluded from filing the Application. One is simply a referral to Physiotherapy, while the other is a statement, one month after the relevant time of the filing of the Application, stating what the Applicant told Dr Parras of what occurred one month prior.
The Applicant has failed to provide adequate evidence in relation to his physical health. In all the circumstances, the Commission cannot be satisfied that the Applicant’s stated reasons for filing his application out of time have any basis, or constitute exceptional circumstances, as contemplated by the statute. The Applicant was apparently well enough to engage in correspondence, drafting of emails and what appears to have been quite comprehensive research into his dismissal.
(b) Whether the person first became aware of the dismissal after it had taken effect
The Applicant noted that he was told of his dismissal on 14 October 2024, and that it took effect on 25 October 2024.
For the reasons set out above, I am satisfied that the Applicant became aware of his dismissal by at least 25 October 2024. This is not a relevant factor in this matter.
(c) Action taken by the person to dispute the dismissal
The Applicant submitted:
Prior to lodging my claim, I had actively engaged with Aurecon, including correspondence seeking a resolution. These efforts demonstrate my intention to address the dismissal within the prescribed timeframe and explore alternatives to legal action as I still maintained respect for the company, however this is no longer the case.
The Respondent submitted that:
(a)On multiple occasions, the Applicant sent Aurecon correspondence in which he indicated he would be filing a claim in the Commission.
(b)On 7 November 2024, the Applicant sent an email to Ms Keane which amongst other matters, first foreshadowed his unfair dismissal application. Aurecon replied to this email on 13 November 2024. The parties exchanged other pieces of correspondence prior to the expiration of the 21-day period in which the Applicant could have made the Application.
(c)It cannot be said that the exchange of correspondence in any way impeded the Applicant lodging his application with the Commission. To the contrary, the evidence demonstrates that the Applicant was clearly aware of his legal options with respect to the termination of his employment and the prescribed timeframe in which to file an unfair dismissal application
While the Applicant took action to dispute the dismissal, I consider that this is a neutral factor in my consideration.
(d) Prejudice to the employer
The Respondent does not allege any particular prejudice other than the resources and time in preparing a response to the Application for an extension of time. Accordingly, I consider that this is a neutral factor in my consideration.
(e) Merits of the application (s 394(3)(e))
It is appropriate to note that a consideration of the merits of an Application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis.
In the matter of Kornicki v Telstra-Network Technology Group[1] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[2]
I adopt the reasoning of the Full Bench of the Commission in relation to the consideration of merits. I consider that this is a neutral factor in my consideration.
(f) Fairness between the person and other persons in a similar position
The Applicant submitted the following:
Regarding fairness as between the applicant and any other persons in a similar position, I note that one of my colleagues, who was made redundant at the same time under similar circumstances, has also filed for unfair dismissal, reflecting shared concerns regarding the process and outcome.
Two other colleagues were made redundant in the same manner but chose not to submit claims, as they expressed a desire to dissociate themselves from Aurecon entirely. Their decision to step away does not negate the unfairness of the redundancies or the validity of my application, but instead underscores the impact of the process on those affected. They shared the same views on the situation, but chose to not pursue.
The Respondent submitted that the Applicant had misconstrued the operation of section 394(3(f) in his Statement because he raised issues of fairness in the context of the substantive merits application, rather than the extension of time issue.
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, the Applicant said that there are other persons in a similar position, however there is no detail provided that would allow for an assessment of the circumstances of those other matters.
I consider this to be a neutral consideration in the present matter. Consequently, no weight can be given to this consideration.
Conclusion
As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight was the absence of any acceptable reason for delay. That factor weighed heavily in the Respondent’s favour.
I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr D Gliguroski, the Applicant.
Ms L Morris, solicitor on behalf of the Respondent.
Hearing details:
14 January 2025.
Sydney.
In-person.
[1] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[2] Ibid.
Printed by authority of the Commonwealth Government Printer
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