Mr Gabor Dobradi v E Agri Management and Technical Services Pty Ltd

[2021] FWC 1122

[2021] FWC 1122

FAIR WORK COMMISSION

DECISION

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

Mr Gabor Dobradi
v
E Agri Management and Technical Services Pty Ltd
(U2021/845)

COMMISSIONER LEE MELBOURNE, 4 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 3 February 2020, Mr Gabor Dobradi (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with E Agri Management and Technical Services Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on or about 7 May 2018. He was employed in the position an Engineering Manager.

[3] The reason given by the Respondent for the decision to terminate the Applicant’s employment was because the Respondent no longer required his job to be done by anyone as the Respondent no longer had the funds to operate. 1

Application was filed outside the statutory timeframe

[4] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

[5] The Applicant’s evidence was that he had a discussion with Mr Blair, the Director of the Respondent, on 21 December 2020. During that conversation, the Applicant claims that they talked about the termination of his employment and that Mr Blair said that he would send him a termination letter which would include the date of effect of the termination.

[6] Mr Blair agreed that he undertook to provide such a letter but did not do so. Mr Blair’s evidence was to the effect that he did not provide the letter as he reviewed his communications and concluded that he had already written to the Applicant in October 2020.  2 Mr Blair claimed that the employment relationship ended in September 2020, or at least when he sent an email to the Applicant on 29 October 2020 which read as follows:

“As I discussed nearly four weeks ago, the company would need to terminate your services, which would enable you to obtain some financial support from the government.” 3

[7] However, that email clearly contemplated a prospective undetermined date of dismissal, and in any case, it is not clear that the employment relationship ended at that time. Notably, it is common ground that the Applicant has not been paid since July 2020. Despite this, the Applicant appears to have continued to work for the Respondent, at least to some level, up until 21 December 2020.

[8] The Applicant last attended the workplace on 21 December 2020 and performed no further work for the Respondent after that time. 4 It appears to be clear that the employment relationship ended on 21 December 2020, as the Applicant was told he was dismissed at that time. Further, the Applicant did not attend work after that time and applied for and secured employment with another employer. The Applicant was offered that employment on 5 January 2021, and commenced employment with the new employer on 10 January 2021.5 Having regard to the Applicant’s own evidence, I put to the Applicant that the employment relationship, if it did not end before, certainly ended on 21 December 2020.6 The Applicant agreed with that proposition.7 Taking into account all the evidence, I am satisfied that the Applicant’s employment was terminated by the Respondent with effect from 21 December 2020.

[9] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). Based on a termination date taking effect on 21 December 2020, the application for a remedy should have been lodged by no later than 11 January 2021.

[10] The application was therefore lodged outside of the time prescribed. The application was made in effect, 23 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[11] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[12] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

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

[13] Each of the matters need to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 8

[14] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. 9 I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

[15] I now consider these matters in the context of the application.

Reason for the delay

[16] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 10

[17] The reason for the delay provided by the Applicant is that he expected, based on the practice of his home country, Hungary, a formal dismissal letter from his employer to terminate his contract. There is no other reason for the delay. I will take into account the fact that the Applicant was waiting for an official letter of termination under s.394(b), below. However, it was apparent to the Applicant, and he has conceded, that the employment relationship ended on 21 December 2020. There is no other reason for the delay. There is not an acceptable explanation for the delay.

[18] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

Whether the Applicant first became aware of the dismissal after the date it took effect

[19] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 21 December 2020 that his employment would end on a date to be determined by the employer.

[20] The Applicant had a discussion with Mr Blair on 21 December 2020, and it was communicated to him that he would be terminated and that he would receive a termination letter which would set out the date of his dismissal. However, the Applicant did not receive that letter. 11 Mr Blair conceded that he said he would send such a letter but did not. I accept that this is a factor that has led to confusion for the Applicant as to when the dismissal took effect, and means that he became aware of the dismissal sometime after the date that it took effect.

[21] However, bearing in mind that the Applicant applied for another job “around 18 or 20 December 2020” 12, and was offered that job on 5 January 2021, this is a strong indication that the Applicant was aware soon after 21 December 2020 that his employment with the Respondent had ended, and that he needed to find alternate employment. Nevertheless, I accept that the undertaking of Mr Blair to provide a letter with a date of termination, which was never provided, is a factor that has led to some delay in the Applicant becoming aware of his dismissal after the date that it took effect.

[22] In the circumstances, that is a matter that weighs in favour of the Applicant.

Action taken by the Applicant to dispute his dismissal

[23] Turning next to the question of the action taken by the Applicant to dispute his dismissal. The evidence was that the Applicant is clearly owed a significant amount in unpaid wages and entitlements. The Applicant has been taking action to recover these funds which has included discussions with Mr Blair about possible sources of funds for the company. 13

[24] However, these discussions predate the dismissal and cannot reasonably be characterised as action taken to dispute the dismissal. There is no evidence that the Applicant has taken action to dispute the dismissal.

[25] In the circumstances, that is a matter that weighs slightly against the Applicant.

Prejudice to the employer

[26] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.

[27] The Respondent made no submissions on this point.

[28] In the circumstances, that is a matter that is neutral in the instant case.

Merits of the application

[29] As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

[30] The Applicant claims that part of his unpaid entitlements includes redundancy pay. At the hearing I asked the Applicant if that was because he claimed that he was made redundant and he agreed that in his view he was made redundant by the Respondent. 14 Mr Blair agreed that the Applicant’s job was no longer required to be performed by anyone as the Respondent did not have the funds to operate.15 It is apparent on the evidence of both the Applicant and Mr Blair that the Applicant’s employment ended as his job was no longer required as a result of the company no longer being in a financial position to employ him. There is no other reason for the termination in evidence. It therefore seems to be common ground that the Applicant is redundant.

[31] An applicant is not eligible to make a claim for unfair dismissal if their dismissal was a genuine redundancy.

[32] As the evidence of both the Applicant and Mr Blair was to the effect that the Applicant’s job is no longer required to be performed by anyone, this weighs strongly towards a finding that the Applicant has a weak case. However, in the event that Applicant was covered by a modern award, it is entirely possible it was not a genuine redundancy if there was not consultation in accordance with that award. There is no evidence as to whether the Applicant was covered by a modern award. Having regard to the rather chaotic way that the employment relationship ended, consultation, if it was required, was unlikely to have occurred. It is through that prism that the Applicant’s case can be viewed at its most favourable.

[33] Taking into account the limited evidence the claim is, on a preliminary assessment basis, weak. That is not to suggest that it will fail. I am satisfied there is at least some merit related to the apparent failure to properly consult which would give the Applicant a justifiable reason to pursue his unfair dismissal claim.

[34] In the circumstances, that is a matter that weighs in favour of the Applicant, but in all the circumstances not significantly so.

Fairness as between the Applicant and other persons in a similar position

[35] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. 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.

[36] The Applicant made submissions on this issue which related to his underpayment claim and are not particularly relevant. Mr Blair made no submissions, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case or where the Commission granted an extension of time or found exceptional circumstances on facts that are similar to the facts before me. Consequently, that matter is a neutral consideration in the present circumstances.

Conclusion

[37] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[38] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[39] As I have indicated, there is not an acceptable reason for the delay. This weighs against the Applicant. The consideration under s.394(b) weighs in favour of the Applicant. The lack of action to dispute the dismissal weighs against the Applicant. The merits consideration weighs only slightly in favour of the Applicant. The other considerations are neutral.

[40] Taking into account all of those factors, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will separately be issued.

COMMISSIONER

Appearances:

G Dobradi, Applicant.

N Blair, Respondent.

Hearing details:

2021.

Melbourne (audio link via Microsoft Teams):

January 24

Printed by authority of the Commonwealth Government Printer

<PR727421>

 1   PN148 – PN149.

 2   PN152 – PN154.

 3   PN122.

 4   PN25.

 5   PN17.

 6   PN71.

 7   PN72.

 8   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 9   Ibid.

 10   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 11   PN61 – PN62.

 12   PN19.

 13   PN88.

 14   PN46 – PN49.

 15   PN148 – PN149.