Mr Dung (Brandon) Tran v Telco Services Australia Pty Ltd T/A TSA Telco Group Pty Ltd

[2014] FWC 4525

[2014] FWC 4525

FAIR WORK COMMISSION

DECISION

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

Mr Dung (Brandon) Tran
v
Telco Services Australia Pty Ltd T/A TSA Telco Group Pty Ltd
(U2014/5940)

COMMISSIONER CLOGHAN PERTH, 17 JULY 2014

Unfair dismissal.

[1] On 26 March 2014, Mr Dung Tran (Mr Tran or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Telco Services Australia Pty Ltd T/A TSA Telco Group (Employer), on 31 January 2014.

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[4] Mr Tran has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(a) of the FW Act, a further period for the application to be made, that is, 26 March 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[5] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

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

(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.”

[6] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 26 Match 2014, I issued procedural directions to the parties on 8 May 2014 advising that the matter would be determined by written submissions.

[7] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 26 March 2014.

RELEVANT BACKGROUND

[8] On 31 January 2014, the Applicant was provided with correspondence entitled “Termination of Employment for Reasons of Redundancy”. The relevant parts of the correspondence are as follows:

“...I confirm TSA’s decision to realign the IT Infrastructure and the Applications Team to the needs of the business in 2014 and beyond. As a direct result of this restructure, your position of Team Manager - IT Support, Infrastructure & Projects is no longer required.

Due to the executive nature of your role and your current remuneration package, TSA has no budgeted or planned availability for a comparative role. Therefore I can confirm that we will be making the role of Team Manager - IT Support, Infrastructure & Projects redundant as of today...”

[9] Mr Tran submits that both his position and that of Team Leader in the Applications area were made redundant. Mr Tran understood, from a discussion with the Head of Information Technology, that a new person would be employed to cover both the merged areas of infrastructure and applications.

[10] On 18 March 2014, the Applicant was informed that the Employer had hired a person in “the same or substantially the same [role] as I did”.

[11] In summary, the Applicant submits:

“My view is that my redundancy was not genuine and had I known, at the time, what I now know, I would have challenged the fairness of my termination of employment within the required 21 days.

I took no action prior to lodging the application.”

[12] The Applicant does not provide any documentary material to demonstrate that the role is the “same or substantially the same”. It is Mr Tran’s “understanding”, from a third party, that the new position is the “same or substantially the same”.

[13] The Employer states that the “new Manager Infrastructure Services role is significantly different from the Applicant’s previous, and now redundant role with additional expertise and skills required to perform it that the Applicant did not possess and could not be trained to perform within a reasonable timeframe...While the new role may have some similar elements to the Applicant’s previous role, the role itself is substantially different with a higher skill set required to perform it.” Similarly, the Employer has not provided any documentation to demonstrate its assertion.

[14] The Applicant submits that at this “interlocutory stage, it may be difficult to test the assertions about the nature of the job and whether there are any true differences and the suitability of the applicant to perform it if it was different”. I agree and add that is not the issue to be determined What is at issue is whether the Commission is satisfied that “exceptional circumstances” exist, taking into account the provisions in s.394(3) of the FW Act, for time to be extended to allow Mr Tran to file his application.

CONSIDERATION

s.394(3)(a) - reason for the delay

[15] The Applicant refers to the decision of Deputy President Sams in Rodney Cross, Karin Thompson and Denis Payne v Bananacoast Community Credit Union Ltd T/A BCU[2012] FWA 7681 (Bananacoast) and in particular paragraph [51] as follows:

“[51] In my view, this is a rare and unusual case. I am satisfied that an honestly and reasonably held belief that an earlier redundancy may not have been genuine, and the belief is based on plausible information, may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act...”

[16] Having referred to this part of DP Sam’s decision, the Applicant proceeds to the view that:

“In this case the Commission should also accept that there is a honestly and reasonably held belief that the redundancy was not genuine. If this is accepted then there is a reasonable basis for the Commission [to] exercise its discretion up to 18 March 2014 when the new circumstances were made known to the applicant by a former co-worker”. (my emphasis)

[17] If, in the submission of the Applicant and with which I agree, it is difficult to test the assertion of whether the new position of Manager Infrastructure Services is the same or different to that of the position made redundant, the “acceptable” basis of allowing an extension to file the application is, according to the Applicant, his honest and reasonable belief that the redundancy was not genuine.

[18] What is the basis for this “honest and reasonable belief”?

[19] In his application to the Commission, Mr Tran states “I found out that my employer (TSA) has employed someone else to do identical or similar role”.

[20] In his statement to the Commission following Directions, Mr Tran states that, “on 18 March 2014 I was told by ex-colleague, who is an existing employee, that they had hired a new person in my role with a job title of Manager Infrastructure Services.”

[21] Consequently, Mr Tran’s “honest and reasonable belief” reduces to what an unnamed ex-colleague has informed him.

[22] Given the almost exclusive emphasis by the Applicant to the Bananacoast decision, I consider it is important to include other aspects of DP Sams’ Decision such as the foundation principle:

“[46] ...that the meaning of ‘exceptional circumstances’ and the balancing of the matters FWA is required to take into account in such matters, will very much depend on the specific facts and circumstances of each case. It is to those matters, in the context of s 394(3) of the Act, to which I now turn.

Reasons for the delay

[47] All of the applicants said that they would not have challenged the genuineness of their redundancies, had it not been for the information they received from various sources, that other persons had been employed very soon after they were made redundant, to perform the same or similar duties they had previously undertaken.

[48] ...Whether the information they received was correct or not (and I am not required at this stage to make any findings in this respect) does not decisively determine this matter.” (my emphasis)

[23] In Bananacoast, all three employees had secured alternative employment.

[24] There was no dispute in Bananacoast that all staff received an internal memorandum regarding a restructure of the organisation.

[25] Ms Thompson in Bananacoast was informed by a “senior manager” that when introducing a new staff member, who allegedly was in a similar position to one of the redundant employees, staff were advised “to keep the appointment quiet”. Further, Ms Thompson was informed by the same senior manager that another person was interviewing for a position that was “almost exactly as the same as for the position she held”. Finally, Ms Thompson had sighted the “new” job description for her position and “it was almost exactly the same as for the position she held, but with more supervision” 1.

[26] Mr Payne, another applicant in Bananacoast, became aware, through a third party that a person was to be employed in a position that was “exactly the same as his former position”. Mr Payne also telephoned the same senior manager referred to in paragraph [25] above to confirm what he had been told.

[27] In the case of another applicant, Mr Cross, he became aware that a new employee was looking after “his files” from two former colleagues 2.

[28] Consistent with the observation of DP Sams, I am required to determine whether there are exceptional circumstances taking into account the entirety of the circumstances.

[29] The provisions of s.394(3) of the FW Act require the Commission to be satisfied that there are exceptional circumstances to allow the Applicant to file the application 54 days after the dismissal took effect. Accordingly, it is the Applicant who has the onus of demonstrating to the Commission that it should be satisfied that the time allowed to file the application should be extended.

[30] In this application, reduced to its barest essentials; Mr Tran was dismissed by the Employer for reasons of redundancy and 46 days later an un-named ex-colleague informed him that the Employer had “hired a new person in my role” albeit with a different title. As a consequence, Mr Tran disputes the genuineness of his redundancy with the rationale of, “had I known at the time, what I now know, I would have challenged the fairness of my termination”.

[31] The issue for the Commission in determining whether an extension of time should be allowed is not whether the Applicant has an “honest and reasonable belief” that the redundancy was not genuine, save the provisions of paragraph s.394(3)(e). It is also not to determine what action Mr Tran would have taken on 31 January 2014 had he had the benefit of the knowledge he had acquired on 18 March 2014. In both matters, I would be required to essentially speculate on Mr Tran’s state of mind.

[32] Objectively, the reason for the delay in filing the application, as put by the Applicant is that he did not know what he did not know.

[33] Serendipitously, Mr Tran became aware through an un-named ex-colleague that another person had been appointed to a position which he considered identical or similar to the redundant position.

[34] If we assume, and this is disputed by the Employer, that the role and responsibilities carried out by Mr Tran are sufficiently the same as the Manager Infrastructure Services, at what point in time does the Commission consider the reason for the delay acceptable - is it, as in this case, 54 days after the redundancy took place, or some other such time before or in the future. This elapsed time difficulty is overcome, as DP Sams stated in Bananacoast, by the “specific facts and circumstances of each case”.

[35] The issue before the Commission is not one of expired time but the overall context in which it is claimed that further time should be allowed to file the application.

[36] The only reason for the delay in this application is that an un-named ex-colleague informed Mr Tran that another person had been appointed to a position similar or substantial similar to the Applicant’s old position.

[37] In Bananacoast, the applicants’ case was initially based on serendipitous information but all three employees saw it necessary to corroborate and authenticate that information. In this application, because Mr Tran has not gone to the same extent as the applicants in Bananacoast, he attempts to authenticate, or confirm, the ex-colleague’s information by having an “honest and reasonable belief” that the new position is substantially the same and the redundancy was not genuine.

[38] In my view, an “ex post facto” belief or self corroboration cannot carry the same weight as the extent to which the applicants in Bananacoast did to authenticate the information they had received. The facts and circumstances of this application can be plainly distinguished from Bananacoast.

[39] While not determinative of the matter, I note for completion that the Applicant in his application is seeking compensation for “loss of future income, hard to get a job due to difficult employment market”. This had led the Employer asserting that the only reason that Mr Tran is contesting the genuineness of his redundancy is because he has not found alternative employment.

[40] The legislative provision in paragraph 394(3)(a) of the FW Act can be traced back to Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 (Brodie-Hanns). In Brodie-Hanns, Marshall J briefly stated that in relation to the reason for the delay in filing an application on time:

“1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.”

[41] I am not positively satisfied that comments from an un-named ex-colleague 46 days after Mr Tran was made redundant is an acceptable reason for the delay. This is particularly so when the Applicant does not attempt to independently verify such information and give the information much more rigour except to avouch for its genuineness through self belief. A self belief which it appears, may be “driven” by the circumstances which he finds himself in after not finding further employment. DP Sams held in Bananacoast that the circumstances in that application were “rare and unusual”; I am not persuaded that the circumstances in this application are comparable.

s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[42] There is no dispute that the redundancy was effective on 31 January 2014.

s.394(3)(c) - any action taken by the person to dispute the dismissal

[43] Mr Tran took no action to dispute the redundancy until after 18 March 2014. The Employer became aware of the Applicant disputing the redundancy when it received this application.

s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[44] I adopt a neutral position with respect to this criterion.

s.394(3)(e) - the merits of the application

[45] The Applicant’s overall submission is that the substantive merits of the application and other jurisdictional matters of award or enterprise agreement coverage should not be considered at the same time as the discretionary issue of late lodgement of the agreement. I agree, and for this reason adopt a neutral position to this criterion.

s.394(3) (f) - fairness as between the person and other persons in a similar position

[46] I adopt a neutral position in relation to this criterion.

CONCLUSION

[47] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed for the application to be filed beyond the statutory timeline of 21 days after the dismissal took effect. Accordingly, the application must be dismissed. An order to this effect will be issued conjointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 23 May, 13 and 23 June 2014.

Respondent: 10 June and 1 July 2014.

 1   Bananacoast paragraph [15]

 2   Bananacoast paragraphs [23] and [24]

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