Mr Rajeev Prasad v Alcatel-Lucent Australia Ltd
[2010] FWA 7804
•7 OCTOBER 2010
Note: An appeal pursuant to s.604 (C2010/5426) was lodged against this decision - refer to Full Bench decision dated 14 March 2011 [[2011] FWAFB 1515] for result of appeal.
[2010] FWA 7804 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Rajeev Prasad
v
Alcatel-Lucent Australia Ltd
(U2010/9684)
COMMISSIONER THATCHER | SYDNEY, 7 OCTOBER 2010 |
Extension of time – exceptional circumstances.
[1] On 11 June 2010 Fair Work Australia (FWA) received an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) from Rajeev Prasad whose employment as a Software Test Engineer by Alcatel-Lucent Australia Ltd (the Company) had been terminated on 29 January 2010 (the substantive application) on purported grounds of redundancy.
[2] In respect of applications for a remedy for unfair dismissal, s.394 provides:
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
...
(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. (emphasis added)
[3] Therefore the substantive application was made 119 days after the 14 day period. The application cannot proceed unless an extension of the 14 day period is allowed. Mr Prasad seeks an extension of time and the Company opposes an extension.
[4] The Company has also lodged a jurisdictional objection to the substantive application on grounds that the termination of employment was a case of genuine redundancy. Mr Prasad disputes the purported genuine redundancy. However that objection was not listed for hearing by me by the Unfair Dismissal roster unit. In any event, FWA is required to consider the granting of an extension of time before considering a jurisdictional objection. If an extension of time is not granted, there is no longer an application for the tribunal to consider.
[5] At the time of the hearing Mr Prasad was located in India, having vacated his Sydney home on 13 June 2010. Whilst it had been intended that the hearing be conducted with the assistance of video-conference facilities, when the hearing commenced the technology difficulties were such as to prevent it proceeding on that basis. Neither party proposed to call witnesses and each agreed with my suggestion that the matter proceed by way of written submissions. 1
[6] During my consideration of the written material, I noticed that certain documents that were referred to in Mr Prasad’s submissions had not been included in the material that he submitted. Therefore on 29 September 2010 my chambers wrote to Mr Prasad inviting him to lodge the documents. On 3 October 2010 Mr Prasad advised that the documents were not traceable at this stage as the envelope containing them had been misplaced lately during transit. I have determined the application for an extension of time on the material that has been placed before the tribunal.
The law
[7] There are important differences between s.394 and s.643 of the former Workplace Relations Act 1996, in relation to the time for the making of unfair dismissal applications, namely:
(a) The limitation period within which applications must be made was reduced from 21 days (under s.643) to 14 days:
(b) Under s.394 FWA may only extend the period for the making of applications when it is satisfied that there are ‘exceptional circumstances’ (after taking into account prescribed considerations). No ‘exceptional circumstances’ limitation existed under s.643;
(c) Whereas under s.643 the principles established by the former Industrial Relations Court in Brodie-Hanns v MTV Publishing Ltd2 provided guidance for the Commission, s.394 prescribes considerations that FWA must take into account;
(d) Whilst the Brodie-Hanns principles were not exhaustive,3 the factors in s.394(3) are an exhaustive list of the considerations that FWA must take into account.4
[8] The period within which an application under s.394 must be made is a limitation period with which an application must comply. The rationale for limitation periods was reviewed by the High Court in Brisbane South Regional Health Authority v Taylor.5In that decision McHugh J stated:
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. …
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost[26]. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed[27]. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them[28]. …
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible[34].
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.’[35] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”6(Footnotes omitted)
[9] Section 394(3) requires FWA to be satisfied that there are ‘exceptional circumstances’ to justify extending the 14 day time period. The provision requires a decision by the FWA member as to whether he or she is satisfied there are exceptional circumstances by making an overall judgment after into account the considerations listed only in s.394(3)(a) to (f). Therefore, for the substantive application to proceed, Mr Prasad must establish an exceptional case.
[10] In Maan v Minister for Immigration and Citizenship7 the Full Court of the Federal Court considered the expression ‘exceptional circumstances’ in the context of a requirement in the Migration Regulations 1994 that the Minister cancel the visa of a prescribed class of person if the Minister was satisfied that the visa holder had not complied with a prescribed condition and the non-compliance was not due to exceptional circumstances. In their decision Dowsett, Greenwood and Collier JJ stated:
“Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’”8
[11] In its decision in Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers, 9when considering s.394(3) a Full Bench of FWA stated:
“[5] The word ‘exceptional’ is relevantly defined in The Macquarie Dictionary as ‘forming an exception or unusual instance; unusual; extraordinary.’ We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[12] It was submitted by Mr Prasad that ‘the applicant has a very good prima facie case and will suffer irreparable loss and injury if its claims are not accepted and also if its claim is defeated on technicalities.’ He submitted that it has been the consistent view of the courts of law worldwide that technicalities should not obstruct the advancement of the cause of justice.
[13] It should be clear from the case law I have cited that the making of a s.394 application out of time should not be regarded as presenting the applicant with some mere technical problem. Rather s.394(2) is a substantive legislative provision which represent the legislature's judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the period may often result in a good cause of action being defeated. The limitation period in s.394(2) is a relatively short period of 14 days, underlining the legislature's intention that applications under s.394 are dealt with expeditiously.
[14] It is relevant to note that s.394(1) provides that a condition precedent to the right to make an application for an unfair dismissal remedy is that the employee has been ‘dismissed’. The meaning of ‘dismissed’ is contained in s.386 of the Act and relevantly requires the person’s employment with his or her ‘employer’ to be terminated. Section 380 of the Act provides that the term ‘employer’ means a ‘national system employer’. The meaning of ‘national system employer’ is contained in s.14 of the Act, which contains nothing to enable the term to extend to related bodies corporate.
Facts
[15] The Alcatel-Lucent group operates in 130 countries. The Company and its Indian counterpart are subsidiaries within the Asia-Pacific and China Region of the global group, which has three divisions, including the Applications Software Group.
[16] A media report dated 12 December 2010 issued from Paris/New Delhi referred to significant restructuring initiatives within the Alcatel-Lucent group that included expected reductions in the numbers of managers and contractors as well as savings in real estate, support functions and discretionary spending. 10
[17] Mr Prasad had been employed by the Company since 17 March 2008 in the Professional Service Division of the Applications Software Group. Prior to this, Mr Prasad was working with Alcatel-Lucent India from 7 May 2001. His contract of employment with the Company included:
(a) under the heading ‘Employment status’:
“It is noted your transfer to Australia is a continuation of your permanent employment with Alcatel-Lucent, since your commencement with Alcatel-Lucent India on (date to be confirmed)”; and
(b) under the heading ‘Termination of Employment’:
“In the event of involuntary termination, within the first two years of your employment with Alcatel-Lucent Australia and for reasons other than gross misconduct, the company shall pay for your relocation costs back to Alcatel-Lucent UK.” 11
[18] Mr Prasad’s employment within Australia was subject to the Company’s sponsorship of his s.457 visa. Therefore his stay in Australia was conditional upon his continued employment with the Company (or some alternative sponsor).
[19] After being advised verbally on 12 November 2009 about his position being made redundant, on 18 November 2009 Mr Prasad received written advice from the Company that included:
“Alcatel-Lucent has undertaken a restructure of the Applications Software Group; as a result your position is redundant. This means you will be eligible for a retrenchment. Your entitlement is made up of a one month’s notice period and an additional week should you be over the age of 45, with two or more years of continuous service. You are also entitled to a severance payment and the relevant details can be found in the following documentation.
Your last day at work will be 12 January 2010.
During your notice period you have access to explore opportunities for redeployment. Should this be of interest to you please contact (name and telephone number) for Melbourne based opportunities and (name and telephone number) for Sydney based opportunities.
To support you, you will have access to a career transition program, through Directioneering. We will arrange for you to meet a Directioneering consultant.
Your termination payment will be made directly to your bank account on the next working day following your exit date. ...”
[20] Subsequently, the proposed cessation date was extended to 29 January 2010 and Mr Prasad was given a revised retrenchment letter. 12 Mr Prasad was paid redundancy entitlements.
[21] After being advised of his retrenchment Mr Prasad commenced making application for various Alcatel-Lucent positions with the Company and with related foreign Alcatel-Lucent entities.
[22] According to the information provided by Mr Prasad to FWA on 5 August 2010, 13 he made application for 52 vacancies that were posted with the Company and related foreign entities during the period 18 November 2009 to 29 January 2010.
[23] On 18 December 2009 Mr Prasad faxed Alcatel-Lucent’s Office of Business Conduct (OBC). Mr Prasad did not provide FWA with that correspondence or the response he received. However he submitted that the response asked him to raise his concerns with local management, 14 which Mr Prasad did on 18 December 200915 without success.
[24] On 12 January 2010 Mr Prasad wrote to HR, Asia Pacific and China region and the Vice President, Professional Services, Applications Software Group, Asia Pacific and China region. 16 Mr Prasad did not seek to provide FWA with that correspondence.
[25] Whilst Mr Prasad did not provide FWA with the correspondence, on 25 January 2010 Mr Prasad wrote to the worldwide CEO of Alcatel-Lucent in which he ‘shared his concern over my retrenchment and associated risks’. 17 His attempt to meet with the CEO in France failed for visa reasons.
[26] Subsequent to his cessation of employment, Mr Prasad continued to make applications for Alcatel-Lucent vacancies. In doing so he continued to receive assistance from Directioneering and the Company’s internal recruitment consultant. The emails that were attached to Mr Prasad’s submission did not support his assertion that ‘I was actually acting on the direction of company to seek redeployment beyond the statutory time frame of 14 days.’ (emphasis added)
[27] According to the documentation Mr Prasad provided to FWA on 5 August 2010 18 he made 92 applications for vacancies that were posted after 29 January 2010 (most of which were overseas).
[28] It appears that all of Mr Prasad’s applications have been unsuccessful. Up until 11 June 2010 he had not been called for an interview for any position. Notwithstanding this, Mr Prasad states that he had ‘continued to get hopeful responses’. 19
[29] In mid-April 2010 Mr Prasad consulted the Legal Aid Office. He was advised to consult private lawyers who specialise in employment law. He did this and was made aware of FWA. Also it was suggested that he seek that the Company relocate him back to Alcatel-Lucent India.
[30] Mr Prasad was regularly in touch with the Indian Consulate who advised him to seek legal advice through the Toongabbie Legal Centre. There he was advised to first approach FWA regarding unfair dismissal. If not satisfied he could follow another path through a private firm. 20
[31] The Company’s position was that it would financially support Mr Prasad’s relocation back to India 21 and that any employment opportunities for him with Alcatel-Lucent India would need to be explored by him directly with Alcatel-Lucent India. After receiving the legal advice Mr Prasad commenced pressing the view that this approach to his further employment with Alcatel-Lucent India was in breach of his contract of employment under which, he asserted, the Company is required to relocate him back to employment with Alcatel-Lucent India.
[32] On 27 April 2010, Mr Prasad, who had heard that the worldwide CEO of Alcatel-Lucent would be visiting Australia, emailed the CEO reminding him of his previous correspondence and requesting that he discuss Mr Prasad’s case with Australian management. On 6 May 2010 Mr Prasad received an email from the CEO advising that he would leave Mr Prasad’s concerns to the Australian HR team.
[33] On 7 May 2010 Mr Prasad lodged an on-line complaint through the EthicsPoint web link because Alcatel-Lucent was a member of that forum and the OBC encourages individuals to lodge their complaints through EthicsPoint should there be instances of unethical business. Mr Prasad did not provide FWA with a copy of his complaint. However in the absence of evidence to the contrary it is probable that his assertions were that it was unethical for the Company not to redeploy him back to Alcatel-Lucent India and that it was unethical for him to be targeted for redundancy because he was on a s.457 visa. According to Mr Prasad, the response dated 28 May 2010 (which Mr Prasad did not provide to FWA) stated that ‘there is no breach of employment contract’ and did not respond to the s.457 visa issue.
[34] Mr Prasad’s s.457 visa was due to expire on 9 May 2010 and he requested the federal department to extend its term until 30 June 2010. He made the substantive application only days before leaving Australia.
Reason for the delay
[35] Mr Prasad’s reasons for the timing of his making the substantive application may be summarised as:
(a) Initially Mr Prasad focussed his efforts on being redeployed and, after his termination took effect, being re-employed within the Company or the group and making internal representations in support of these objectives. He received encouragement to do this from the Company. He stated:
“Having served with the company as a model and loyal employee for approx 9 years, since 2001, without any adverse record, I deemed it fit to seek re-employment in the company instead of taking immediate action against the unfairness meted out to me by the company as between other persons in a similar position and also to take immediate action to dispute my dismissal”; 22
(b) Because he was a non-resident of Australia, he only became aware of the remedy through FWA when he consulted with lawyers in mid-April 2010;
(c) Even after becoming aware of FWA he considered he still had administrative means for obtaining an amicable solution for his grievance. He was seeking re-employment within Alcatel-Lucent and had been advised by lawyers that if he made an unfair dismissal application he could not expect any future support from the Company. Also he submitted that: ‘No role model employee will go into litigation (whilst)(sic) there are amicable solutions available, which are within its reach.” 23Mr Prasad delayed making the application until all administrative options for a solution were exhausted;
(d) Directioneering and the Company’s internal recruitment consultant had kept Mr Prasad ‘continuously hoping/expecting legitimately that his grievance would be readdressed at administrative level only’. 24 Therefore ‘the delay for approaching FWA should in fact be attributed to the respondent’s conduct and the applicant should not be penalised for same, since it has good intention to resolve the issue along with the effort of the respondent and not to rush to the courts’;25
(e) It was when after:
“... taking into consideration various things such as tenure and validity of his s.457 visa, deteriorating health problem of his wife, future prospects, attitude of the respondent, and also expenses occurring while staying in Sydney with no source of income, he finally approached FWA for legal remedy...” 26
[36] In considering an application for an extension of time, FWA must consider the whole of the period between the date the dismissal took effect (29 January 2010) and the date of filing of the application for an unfair dismissal remedy (11 June 2010).
[37] In summary, the reasons advanced are twofold:
(a) Up until mid-April 2010 Mr Prasad was not aware of an unfair dismissal remedy;
(b) Subsequent to that time, Mr Prasad preferred to exhaust other options for resolving his dispute with the Company.
[38] There is nothing exceptional, unusual or extraordinary about an applicant who has made an application for an unfair dismissal remedy outside the 14 days stating that he or she had been ignorant of the unfair dismissal remedy. This reason is generally not accepted as a factor that weighs in favour of an extension of time. If an employee is aggrieved about a decision to terminate his or her employment there are many means of obtaining access to such information.
[39] I do not accept as credible the assertion by Mr Prasad that because of his attempts to seek redeployment and reemployment there was ‘no occasion for the applicant to take legal opinion.’ 27
[40] Given that Mr Prasad had not been in Australia for long, what is unusual is that he did not seek legal advice on his situation until mid-April 2010, some 5 months after he was advised that he was to be retrenched.
[41] However even if weight was to be given to his failure to obtain such advice much earlier, after becoming acquainted by legal representatives with the unfair dismissal remedy, Mr Prasad allowed a further period of approximately 2 months to elapse before making the substantive application.
[42] Mr Prasad’s reason for not making the substantive application during that further period was his preference to exhaust all administrative options available to him to regain employment with the Alcatel-Lucent group by amicable means.
[43] It would be trite to say that it is usual that the filing of an application for an unfair dismissal remedy with FWA is not appreciated by a former employer and runs the risk of limiting the applicant’s chances of gaining, by voluntary means, re-employment with the former employer against whom the application is made. Therefore whilst I appreciate Mr Prasad’s apprehension about initiating legal proceedings against the Company, I do not accept that his actions in pursuing internal means at the expense of not making, or without previously making, an application with FWA is a factor that significantly contributes to satisfaction of the test of special circumstances, particularly when:
(a) There is nothing to suggest that Mr Prasad was not informed adequately by the legal representatives who provided him with advice, i.e., there was no suggestion of representative error;
(b) Mr Prasad adopted his course of action notwithstanding that he had received advice to make an application with FWA (refer to paragraph 30 above);
(c) Mr Prasad had the opportunity to pursue various internal options during the period of approximately 2½ months prior to the termination of his employment on 29 January 2010.
[44] Perhaps the only thing that was out of the ordinary or unusual about Mr Prasad’s desire to obtain early further employment by internal means, rather than to make application to FWA, was that his s.457 visa (and ability to remain in Australia) was dependent on his re-employment with the Company. However the weight that such factor might contribute to satisfaction of the test of special circumstances is diminished by the fact that most of the vacancies for which Mr Prasad applied were not within Australia.
[45] On the material, I cannot accept that the Company’s action in making the services of Directioneering and its internal recruitment consultant available to Mr Prasad is a factor that contributes to satisfaction of the test of exceptional circumstances.
When the applicant first became aware of the dismissal (paragraph (b))
[46] Paragraph 394(3)(b) is intended to address situations where the applicant fails to make the application within 14 days because they were unaware they had been dismissed until some time after the dismissal occurred.28 This factor is not relevant to these proceedings as Mr Prasad became aware on 12 November 2009 that his employment was to be terminated with effect from 12 January 2010 - which was subsequently extended to 29 January 2010.
Action taken to dispute dismissal (paragraph (c))
[47] It is submitted on behalf of the Company that no contest was made by Mr Prasad to challenge the genuineness of the reason for the termination of his employment and his actions solely concentrated on seeking redeployment with the Company or group.
[48] Support for a finding that Mr Prasad delayed disputing his dismissal in favour of seeking to apply for redeployment and re-employment is found in his application, which includes:
“... I did not create issues for my forceful redundancy. I sacrificed myself for benefit of Alcatel-Lucent Australia. This was major reason for my hope of being rehired.” 29
[49] On the evidence I am satisfied that even after Mr Prasad received legal advice in mid-April 2010, the action he took was to pursue his purported contractual entitlements, including employment with the Indian company and relocation expenses, rather than to dispute the unfairness of his dismissal by the Company. 30
[50] This is supported by Mr Prasad’s submission that: “The applicant kept persuading his sponsor (the respondent) to comply with the employment contract and redeploy the applicant back to Alcatel-Lucent India. Meanwhile he kept applying for roles advertised in respondent company.” 31
Prejudice to employer (paragraph (d))
[51] There is no evidence to suggest that the Company’s capacity or ability to defend the substantive application has been adversely affected by the delay.
Merits of application (paragraph (e))
[52] This factor is based on one of the Brodie-Hanns principles,32 namely:
“(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.”
[53] Therefore the Australian Industrial Relations Commission’s consideration of that principle remains relevant toFWA’s consideration of this factor.In considering that principle, the Commission considered that it must, without undertaking an in-depth analysis of the merits of the application, endeavour to make some assessment of its merits. In Kyvelos v Champion Socks Pty Limited 33 the Full Bench stated:
“[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits .…
It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice ...”
[54] From the material provided by Mr Prasad, the grounds of his substantive application can be summarised as:
(a) The redundancy selection process was a sham. During his period of notice the Company made appointments to similar positions. Another employee replaced him.
(b) The Company selected him for redundancy because he was on a s.457 visa;
(c) The Company did not explore properly all of the options for redeployment. Neither did it provide training that could increase his probability of being redeployed to another position;
(d) The Company’s failure to relocate him back to Alcatel-Lucent India was a breach of his contract of employment;
(e) He was given no opportunity to say why he should not be made redundant, prior to being informed orally of the decision. Further he was not given information of the criteria for selecting redundant employees or the alternatives the Company considered before coming to its decision;
(f) He has not received ‘a fair go all round’.
[55] Mr Prasad’s main concern appears to be that he was not redeployed. In relation to the jurisdictional objection that his was a genuine redundancy within the meaning of s.389 of the Act, Mr Prasad states:
“The Respondent is trying to take advantage of its own wrong of having violated the provision of section 389(2) of Fair Work Act 2009 (the Act), by failing to redeploy the applicant in spite of suitable and existing vacancies which were given to other candidates and having wasted his time, money and energy by misleading him into seeking re-employment instead of taking initiative to re-deployment on its own according to provision mentioned in the Act.” 34
[56] On the material before FWA, I am not in a position to form a preliminary view of whether or not Mr Prasad’s dismissal was or was not a genuine redundancy within the meaning of s.389.
[57] If it were found that Mr Prasad’s dismissal was not a genuine redundancy within the meaning of s.389, in my view, insofar as his substantive application seeks a determination that his termination was harsh, unjust or unreasonable, it would be not without merit. However insofar as a remedy is concerned, FWA does not, of course, have jurisdiction to order that Mr Prasad be redeployed to Alcatel-Lucent India. Further, consideration of a remedy which includes his reinstatement with the Company within Australia may be problematic if his s.457 visa has expired.
Fairness with other persons in similar position (paragraph (f))
[58] This is not a relevant factor in these proceedings.
Conclusion
[59] Mr Prasad seeks to rely on the decision of the Australian Industrial Relations Commission in Sasa Pejcinovic v Serco Sodexho Defence Services Pty Ltd. 35However in that case, the Commission did not ‘extend the time period in an identical manner’, as submitted by Mr Prasad. The case turned on a finding of representative error. Also it was considered under s.643 of the former Workplace Relations Act 1996 which, as outlined in paragraph 7 above, was significantly different to the provisions of s.394 of the Act against which Mr Prasad’s application for an extension of time must be considered.
[60] Whether or not special circumstances exist requires an overall judgement of all of the factors prescribed by s. 394(3). I am not satisfied that my findings in respect of the matters in paragraphs 394(3) (a) to (f) constitute exceptional circumstances.
[61] In respect of s.394(3)(a), Mr Prasad’s reasons for his delay in making his substantive application cannot be regarded as unusual or extraordinary, particularly given that he did not seek legal advice until approximately 4 months after being advised he was to be retrenched and the lengthy period of approximately 2 months between his being made aware of the unfair dismissal remedy and his making the substantive application.
[62] Further there is nothing in my findings in respect of the matters in s.394(3)(b) to (f) that are not routinely or normally encountered so as to contribute to satisfaction of the test of exceptional circumstances, particularly given my findings that his actions were in the main directed to his purported entitlement under his contract of employment to relocation rather than to dispute the unfairness of his dismissal and that he had not acted promptly on the advice of a lawyer that he make an application for an unfair dismissal remedy.
[63] In the absence of special circumstances, I am unable to extend the period for the making of the substantive application. I order that such period not be extended.
[64] Mr Prasad’s substantive application cannot proceed under the Act.
[65] This case highlights the difficulties that an applicant can experience in not filing an application for an unfair dismissal remedy until after attempts to obtain relief without resorting to litigation have been exhausted. It is for this reason that it is prudent to ensure that an application is made to FWA within the limitation period of 14 days notwithstanding that the applicant continues to seek to resolve the matter through private processes. If the matter is not resolved privately, the matter may be resolved through the FWA conciliation process that precedes a matter being referred for arbitration.
COMMISSIONER
Appearances:
Mr R Prasad, on his own behalf
Ms N Street, Agent for the respondent
Hearing details:
2010
Sydney/India
August 20
Final written submissions:
31 August 2010
6 September 2010
14 September 2010
1 PN18-PN20.
2 (1995) 67 IR 298.
3 As stated by Marshall J in Jennings v Salvation Army, 24 October 2003, 128 IR 366, 369 at paragraph 10, they ‘were intended to guide the exercise of discretion and were not meant to be exhaustive principles.’
4 Explanatory Memorandum to the Fair Work Bill 2008, paragraph 1573.
5 [1996] 186 CLR at 541.
6 At pages 551, 552 and 553.
7 [2009] FCAFC 150 (23 October 2009).
8 At paragraph 51.
9 [2010] FWAFB 7251, 17 September 2010, per Acton SDP, Cartwright SDP, Thatcher C.
10 The Economic Times. Annexure I of Mr Prasad’s submissions dated 31 August 2010.
11 Presumably the reference to ‘UK’ was a typographical error and was meant to refer to ‘India’.
12 Annexure M of Mr Prasad’s submissions dated 14 September 2010.
13 Annexure B1.
14 Paragraph 42 of Mr Prasad’s submissions dated 31 August 2010.
15 Refer to Mr Prasad’s email dated 13 January 2010 to Elizabeth.
16 Paragraph 44 of Mr Prasad’s submissions dated 31 August 2010 .
17 Paragraph 45 of Mr Prasad’s submissions dated 31 August 2010 and according to Mr Prasad’s email dated 27 April 2010.
18 Annexure B2 of Mr Prasad’s submissions dated 5 August 2010.
19 Mr Prasad’s submissions dated 5 August 2010, page 3.
20 Refer to Mr Prasad’s email dated 1 June 2010 to Vivek.
21 This includes one-way economy airfares for Mr Prasad and his wife and removal expenses for household and personal effects according to certain limits in volume.
22 Mr Prasad’s submissions dated 5 August 2010, page 3.
23 Paragraph 74 of Mr Prasad’s submissions dated 31 August 2010.
24 Paragraph 10 of Mr Prasad’s submissions dated 14 September 2010.
25 Paragraph 11 of Mr Prasad’s submissions dated 14 September 2010.
26 Paragraph 19 of Mr Prasad’s submissions dated 14 September 2010.
27 Paragraph 12 of Mr Prasad’s submissions dated 14 September 2010.
28 Explanatory Memorandum to Fair Work Bill 2008, paragraph 1574.
29 Form F2, item 3.
30 Refer to Mr Prasad’s emails dated 14 April 2010, 23 April 2010 and 3 May 2010 to Ingrid, his email dated 19 May 2010 to Eloise and his email dated 24 May 2010 to Patricia.
31 Paragraph 56 of Mr Prasad’s submissions dated 31 August 2010.
32 Explanatory Memorandum to Fair Work Bill 2008, paragraph 1573.
33 Print T2421, 10 November 2000, per Giudice P, Acton SDP, Gay C.
34 Paragraph 3 of Mr Prasad’s submissions dated 14 September 2010.
35 PR915601, 20 March 2002, per Roberts C.
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