Mr Jamal Tabbaa v Valspar (Australia) Corporation T/A Wattle Australia
[2012] FWA 5575
•1 AUGUST 2012
[2012] FWA 5575 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jamal Tabbaa
v
Valspar (Australia) Corporation T/A Wattle Australia
(U2012/7352)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 1 AUGUST 2012 |
(Unfair dismissal, application not made within 14 day time limit, no exceptional circumstances, extension of time for making application refused)
[1] This decision concerns an application by Mr Tabbaa for a further period to be granted for him to make an application under s.394 of the Fair Work Act 2009 (the Act). The applicant’s employment with Valspar Paint (Australia) Pty Ltd (the respondent) 1 ceased on 13 March 2012 and he lodged his s.394 application on 20 April 2012. It is some 24 days out of time. The respondent opposes the extension of time for filing.
[2] The applicant was employed by the respondent on 29 June 2009 in the position of Distribution Supervisor. He was one of two distribution supervisors the other being a Mr Maina. The applicant worked on the 6am to 2pm shift and Mr Maina on the 10am to 6pm shift. A decision was made by the respondent to reduce the two distribution supervisor roles to one and further decided that it would be the applicant’s position which would be made redundant. The respondent says the dismissal of the applicant was a case of genuine redundancy and the applicant submits it was not. I return to this issue later when considering the matters I must take into account when deciding whether or not to allow a further period to file the s.394 application.
[3] In a hearing before me the applicant was represented by Mr Elder and the respondent was represented by Mr Vernier. Both the applicant and respondent filed written submissions. Additionally, a witness statement of the applicant was relied upon and, on behalf of the respondent, witness statements of Ms Gatehouse, the Human Resources Manager, Mr Courtney, the National Distribution Manager and Mr Shrestha, the Inventory Manager. Each of them was called to give evidence however the only cross-examination of significance was that of the applicant and Mr Courtney. A large number of documents were produced pursuant to two summonses issued at the request of the applicant. The first was a summons to the respondent to produce documents from the applicant’s personnel file and the other was to J Blackwood & Sons Pty Limited to produce documentation relating to an application for employment with that company by Mr Maina. Only a pre-employment health assessment for the applicant was tendered from the documents which were produced.
[4] The relevant provision of the Act is as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) 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.”
[5] I first refer to the reason for the delay in filing the application. The applicant was informed on 13 March 2012 that his position had been made redundant and he was given a letter of termination. He finished up on that day and was paid out his notice and other entitlements.
[6] Around 20 March 2012 the applicant had a discussion with a work colleague “Paula” who had indicated that Mr Maina had gone on two weeks emergency leave. The applicant made no further comment or enquiry about that observation. He subsequently spoke to Mr Courtney on 29 March 2012 by which time he thought there was something “fishy” about the circumstances of Mr Maina going on leave. He thought he might have resigned. Mr Courtney did not tell the applicant that Mr Maina had resigned nor did he make any comment about whether he, Mr Maina, would be returning to work.
[7] Sometime on the following weekend, Saturday 31 March 2012 and Sunday 1 April 2012 the applicant spoke to his sister about his dismissal and she advised him to take advice from Mr Elder. He did not seek to do so until 14 April 2012. There is no explanation for that delay. Furthermore, there is no explanation for the delay between 14 April 2012 and 20 April 2012, the date when the application was lodged.
[8] The other matters referred to by the applicant as to the reason for the delay related to his medical condition in particular his high blood pressure. In that respect he said that whilst he was still in employment he had made an appointment for 15 March 2012 to visit his cardiologist and that subsequently he had an appointment on 29 March 2012 for a stress test. There is no medical evidence that his high blood pressure, which he had for years, or his appointments with the medical specialists provide any explanation for the delay in filing his s.394 application. In this respect, I note that the applicant underwent a pre-employment health assessment prior to his commencing employment in 2009 and at that time it was identified that he had high blood pressure. He drove to and from his medical appointments and otherwise went about all of his other daily routines without interruption at all relevant times. I do not accept that his high blood pressure or any medical attention he received impeded him in any way in relation to the filing of his application.
[9] The applicant said that he did not know what his rights were and did not know about any unfair dismissal application he could make. I am not persuaded that the fact he may not have been aware of his legal rights constitutes exceptional circumstances. 2 The applicant did very little to seek out any information as to any remedy he might have and, when ascertaining there might have been an application he may issue, he did not do so in an expeditious way, allowing further time to elapse. I am not persuaded that the applicant’s explanation of the delay weighs in favour of an extension of time being granted.
[10] Next I refer to s.394(3)(b) of the Act. The applicant became aware of his dismissal on the day it took effect, 13 March 2012. I next turn to the consideration of any action taken by the applicant to dispute his dismissal. The applicant took little action prior to the filing of his application. On the most favourable construction of the evidence from the applicant’s point of view he had some doubts around the end of March as to whether Mr Maina had remained in employment. However, he did nothing about this except have a conversation with Mr Courtney on 29 March 2012. He did not ask to be considered for re-employment in that conversation. He said he was not going to beg for his job back.
[11] The next consideration is the prejudice to the respondent by the delay. The applicant submits there has been none because no person has been employed to fill the role he previously held. On the other hand the employer has, over the last 14 months, been restructuring its business and every few months there have been redundancies. The employer’s evidence is that the distribution supervisor position has not been filled and there is no immediate intention to do so. I also accept the employer’s evidence that for the remainder of this year it is likely that any employee who leaves employment, or retires, will not be replaced.
[12] I next refer to s.394(3)(e) namely the merits of the application. I earlier indicated that the respondent submits that the dismissal was a case of genuine redundancy and the applicant puts this in issue. I understand that the decision to reduce one distribution supervisor position is not challenged by the applicant but what is challenged is his selection to be the person who, as a consequence, would be dismissed. I had a conference with the parties prior to the hearing in which we discussed the issues I needed to consider and rule upon might be able to be narrowed. In respect to the considerations raised under s.394(3)(e) the parties agreed that I should make a finding that putting the applicant’s case at its highest his application is not without merit. 3 The concession was without prejudice to other party in the event time was extended.
[13] Neither party asserted there was any particular consideration in this case that needed to be given to the fairness as between the applicant and other persons in a similar position.
[14] I have considered all of the evidence and concluded that it does not establish exceptional circumstances such as to warrant an extension of time for the filing of the s.394 application.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J. Elder, for the applicant
Mr A. Vernier, for the respondent
Hearing details:
2012
Sydney
29 June
1 The employer named in the s.394 application is incorrect
2 Nulty and Blue Star Group Pty Ltd [2011] FWAFB 975
3 Transcript in matter C2012/7352, 29 June 2012, at PN19-23
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