Mr Raymond Cordero Pagkaliwangan v Siganto & Stacey Pty Limited
[2010] FWA 9104
•10 DECEMBER 2010
[2010] FWA 9104 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Raymond Cordero Pagkaliwangan
v
Siganto & Stacey Pty Limited
(U2010/9316)
COMMISSIONER SIMPSON | BRISBANE, 10 DECEMBER 2010 |
[1] On 1 June 2010 Mr Raymond Pagkaliwangan (“the Applicant”) made an application under Section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. His employer was Siganto and Stacey Pty Ltd (“the Respondent”).
[2] A Conciliation conference was listed for Wednesday 23 June 2010 however was cancelled as the Respondent filed on 22 June 2010 a Form 3 Employer’s Response to Application for Unfair Dismissal Remedy making two jurisdictional objections. At the same time a Form 53 Notice of Representative Commencing to Act was filed by Mr John-Anthony Hodgens of Gadens Lawyers on behalf of the Respondent.
[3] The first objection was on the basis that the Applicant had failed to make the Application within 14 days as the dismissal took effect on 16 April 2010 and the Application was filed on 1 June 2010. The Application was 29 days out of time.
[4] The second jurisdictional objection was on the basis that the Applicant’s employment was terminated on the grounds of genuine redundancy.
[5] The extension of time jurisdictional objection was listed for a Conference/Hearing on Friday 20 August 2010 in Brisbane. The listing included directions for the filing of submissions and witness statements.
[6] The Applicant’s written submission and affidavit was served on the Respondent on 9 August 2010, three days late. As the 11 August 2010 was a public holiday in Brisbane the Respondent was granted an extension until 18 August 2010 to file its material.
[7] The Respondent filed submissions and an affidavit of Mr Douglas Smith with seven exhibits on 18 August 2010.
[8] The Applicant failed to appear at the scheduled hearing of 20 August 2010.
[9] On 24 August 2010 Mr Hodgens on behalf of the Respondent wrote to me regarding the failure of the Applicant to appear at the hearing scheduled for 20 August 2010 and requested that the matter be struck out. The Respondent also filed a further affidavit of Mr Douglas Smith sworn on 20 August 2010 with one exhibit.
[10] On 3 September 2010 I wrote to the Applicant regarding his failure to appear and requesting written advice by Friday 10 September as to whether he intended to proceed with the Application and that if no response was received by that date I would consider dismissing the Application. I received an email in response the following day confirming that the Applicant wished to proceed.
[11] The matter was relisted for a hearing on Friday 29 October 2010. The Applicant did not object to the Respondent being legally represented and leave was granted.
[12] The Applicant’s outline of submissions 1 witness statement and accompanying attachments were admitted into evidence,2 as was the first witness statement of Mr Smith’s with seven attachments3 and second witness statement of Mr Smith’s with one attachment.4
CONSIDERATION OF EXTENSION OF TIME JURSISDICTIONAL OBJECTION
[13] It is common ground that the dismissal had effect from 16 April 2010.
[14] Under cross examination the Applicant admitted that there was a mistake in his statement in that a letter he referred to at paragraph nine of his witness statement was not sent to the Respondent on Monday 26 April 2010 but was sent on Tuesday 27 April 2010.
[15] The Applicant gave evidence 5 that he got advice from a friend who was a lawyer concerning the Application. The Applicant gave evidence that he did not speak to his friend who was a lawyer until after 14 days had past from the time of his termination.6
[16] The Applicant’s witness statement says at paragraph 13;
“13. After some four (4) weeks without further response or resolution, however, I felt I had no alternative but to now proceed to lodge an Unfair Dismissal Application. Therefore, on Monday, 31 May 2010, I prepared an Unfair Dismissal Application, which was actually lodged with Fair Work Australia on Tuesday, 1 June 2010.”
[17] The Applicant was shown during cross examination an email sent to the Respondent from the Applicant’s email address dated 12 May 2010. The Applicant agreed that he had written the email. 7
[18] The email includes the following two closing paragraphs;
“ In any event, there is this matter of pending legal proceedings that I expect to file against Siganto & Stacey Pty Ltd in the near future, regrettably due to your company’s - or your lawyers’ - overly aggressive stance in this matter and ensuing failure to attempt to negotiate an informal resolution even if only for the sake of minimising legal costs for all (except, of course, for your well paid lawyers).
In summary, please do what you need to do at your end, and I will go about doing what I need to do. I do thank you for your time and effort to date, and will no doubt be in touch with you again in the near future specifically regarding my legal claim.” 8
[19] The Applicant makes the following statement in paragraph 14 of his statement;
“..The reasons for the delay, therefore, was that I needed to obtain further documentation to ascertain my contractual rights and obligations and also I wanted to make a genuine attempt to try to resolve his claim amicably with the Respondent without the need for legal recourse. This included accommodating a request from the Respondent’s solicitors effectively to give them further time to obtain instructions and undertake further investigations.”
[20] At paragraph seven of his witness statement the Applicant states that on the 23 April 2010 he received a copy of his former work colleague’s employment contract and he reviewed the contract to understand his contractual rights and obligations, particularly in respect to termination.
[21] It was put to the Applicant in cross examination that on the basis of his own email correspondence of 12 May 2010 and earlier correspondence from Gadens Lawyers he knew by 12 May 2010 that the matter was not going to be resolved informally. 9
[22] The Applicant accepted that he did not file his application until 1 June 2010. 10 The Application was ultimately filed 18 days after his email to the Respondent of 12 May 2010.
[23] The Applicant relies in his case for the granting of an extension of time on correspondence dated 30 April 2010 from Gadens Lawyers to him.
[24] This letter was prepared on behalf of the Respondent in response to correspondence of 27 April 2010 from the Applicant to the Respondent. The Applicant’s correspondence advises the Respondent that he has had the opportunity to obtain independent legal advice and proceeds to list nine separate grounds on which the Applicant contends that his termination was not a genuine redundancy.
[25] The correspondence from Gadens Lawyers of 30 April 2010 includes the following;
“..I act for Siganto & Stacey Pty Ltd and have to hand a copy of your letter dated 27 April 2010.
I am currently in the process of seeking instructions from Mr Doug Smith and Mr Tom Bennett, the CFO, both of whom are out of the country. I anticipate that there may be a delay in being able to meaningfully respond to the rather vague and unparticularised allegations contained within your letter of 27 April 2010.
I anticipate obtaining more detailed instructions to respond to each of the 9 points raised in your letter by early next week.
........
In relation to the allegations set out in point 7 of your letter, please provide full details of all the facts, matters and circumstances relied upon you including the grounds that you assert in support of the allegation that you were “singled out for illegitimate or personal reasons”.
In relation to point 8 of your letter, please provide full facts, matters and circumstances in support of the allegation that the termination came “not long after an open verbal altercation had taken place between yourself and another employee.” In this regard will you please identify:
1. The date or dates of the alleged altercation;
2. With whom the altercation is said to have taken place and what was allegedly said.
Once we have these particulars we will seek our client’s further detailed instructions in order to respond.
Please ensure that you direct all future correspondence in relation to this matter to my office and not to my client. In closing, would you please confirm by email or return mail that you will take no further steps prejudicial to my client’s interests without first notifying me...”
[26] The Respondent put to the Applicant that there was no reason by 12 May 2010 that the Applicant couldn’t have filed an application with Fair Work Australia within two or three days. 11
[27] The Applicant’s response was that he had to finalise all his paperwork and all his statements before he lodged them. 12
[28] The Applicant went on to refer to the correspondence from Gadens Lawyers of 30 April 2010 which he understood to be telling him to give the Respondent more time 13, and relied upon this as the basis for the delay in filing his application in addition to needing to finalise his material.
[29] Mr Douglas Smith gave evidence on behalf of the Respondent. Mr Smith stated in his evidence 14 that he believed that the Applicant did not respond to the request for further and better particulars as outlined in the correspondence of 30 April 2010.
[30] Mr Smith gave evidence that at 11.50am on 12 May 2010 Mr Tom Bennett sent email correspondence to the Applicant on behalf of the Respondent 15 requesting he provide confirmation of his intended departure date from Australia. This was on the basis that the Respondent was a sponsor of the Applicant under a section 457 visa and the Respondent had an obligation to provide the Applicant with a return flight to his country of residence within 28 days of termination of employment.
[31] Mr Smith gave evidence that he knew this because he was carbon copied onto the email sent to the Applicant and a copy of this correspondence was attached to his affidavit. 16
[32] Mr Smith gave evidence that at 3.20pm on 12 May 2010 the Applicant responded that he had made alternative arrangements with regard to his residency and then went on to comment on pending legal proceedings which I have set out in detail above in paragraph 18 of this decision.
[33] The Applicant relies on the letter of the 30 April from Gadens lawyers as the basis for the delay in filing his application however even if I was to accept that the correspondence was a reasonable basis to grant an extension of time on the basis that a self represented applicant interpreted the contents of that letter to mean he should not file an application, it does not explain the reason for the delay after 12 May 2010.
[34] I accept the submission that has been put by the Respondent that there was no reasonable basis for the Applicant to continue to delay the filing of an Application following the exchange of correspondence between the parties that occurred on 12 May 2010. By that stage on the Applicant’s own evidence he had consulted with a legal representative, he had in his possession material that he referred to in his witness statement that would assist him to understand his contractual rights and obligations 17 and there was no indication that the matter may settle informally.
[35] In fact the Applicant’s own email correspondence of 12 May 2010 makes it plain that the Applicant does not believe there is a prospect of negotiating a settlement.
[36] There is no adequate explanation as to why the Applicant waited until 1 June 2010, a further period of 18 days, following the crystallising of the position of the parties on the 12 May 2010.
[37] Section 394(3) of the FW Act sets out the basis on which FWA may extend the time for making a s.394(1) application. Section 394(3) states:
“(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.”
[38] Section 394(3) requires a decision as to whether exceptional circumstances exist taking into account the matters referred to in section 394(3)(a) to (f).
[39] Had the Applicant filed their application by 3 May 2010 it would have been within time. It appears the Applicant interpreted correspondence dated 30 April 2010 from the lawyers acting for the Respondent to be a request to delay taking any action regarding the disputed termination whilst the lawyers sought further instructions. That is not how I read the lawyer’s correspondence, however it is questionable as to whether the Applicant’s interpretation of the correspondence in a particular way would constitute ‘exceptional circumstances’ to justify extending the time limit beyond the 14 day period which expired on 3 May until at least 12 May 2010. Critically however the Applicant failed to provide a credible reason for the period of delay between 12 May 2010 and 1 June 2010.
[40] The Applicant became aware of his termination on 16 April 2010 as he states in his witness statement. 18
[41] It is clear the Applicant disputed the dismissal by sending correspondence to the Respondent dated 27 April 2010 setting out his grounds for doing so, however this was eleven days after his termination.
[42] There is no apparent prejudice to the Respondent caused by the delay in the filing of the application.
[43] On the material it cannot be concluded that the application is without merit.
[44] There was no evidence provided regarding the matter of fairness as between the Applicant and other persons in a similar position.
[45] I am not satisfied exceptional circumstances exist in this case that justify the reason for delay in filing the application, and most clearly no substantive reason for the period of delay between 12 May 2010 and 1 June 2010.
[46] On the basis of my finding in regard to section 394 it is not necessary for me to consider whether a genuine redundancy occurred in accordance with section 389.
[47] The jurisdictional objection is upheld and the application is dismissed.
COMMISSIONER
1 Exhibit 1
2 Exhibit 2
3 Exhibit 3
4 Exhibit 4.
5 Transcript dated 29 October 2010 at PN 92-98.
6 Transcript dated 29 October 2010 at PN 97-98.
7 Transcript dated 29 October 2010 at PN 113.
8 Exhibit 4 Attachment 1.
9 Transcript dated 29 October 2010 at PN 115.
10 Transcript dated 29 October 2010 at PN 116.
11 Transcript dated 29 October 2010 at PN 140.
12 Transcript dated 29 October 2010 at PN 141.
13 Transcript dated 29 October 2010 at PN 142
14 Exhibit 3 Paragraph 24.
15 Exhibit 3 Attachment DS 5.
16 Exhibit 3 Attachment DS 6.
17 Exhibit 2 Paragraph 7.
18 Exhibit 2 Paragraph 3.
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