Mr Rodny Toledo v Foxtel

[2016] FWC 2450

[2016] FWC 2450

FAIR WORK COMMISSION

DECISION

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

Mr Rodny Toledo
v
Foxtel
(U2016/4952)

VICE PRESIDENT WATSON MELBOURNE, 18 APRIL 2016

Application for unfair dismissal remedy – application for extension of time for lodgement – whether exceptional circumstances – Fair Work Act 2009, s.394.

[1] This decision, edited from a decision on transcript on 1 April 2016, concerns an application for an extension of time to lodge an application for unfair dismissal remedy by Mr Rodny Toledo in relation to the termination of his employment with Foxtel. The application is made under s.394(3) of the Fair Work Act 2009 (the Act) and requires the Commission to be satisfied that there are exceptional circumstances, taking into account the factors set out in that subsection.

[2] The facts of this matter are to a large extent not in dispute.  Mr Toledo was advised orally and in writing on 19 January that his role was to be made redundant.  He was advised later in that month that there were no redeployment opportunities for him within the operations of the employer.  The intention originally was that the termination of his employment would take effect on 26 February 2016.  However, it was agreed that he would finish his employment earlier and his last day of employment was 1 February 2016.  It is agreed that that is the termination date for the purposes of the application for unfair dismissal.

[3] The application for an unfair dismissal remedy was made on 26 February 2016, which is four days after the expiry of the 21-day time limit in s.394(2). The extension of time required therefore is that four-day period between 22 February and 26 February. I consider the various factors in s.394(3) and the first, and significant, factor is the reason for the delay. In my view this is a matter which should be considered from the perspective of Mr Toledo and his explanations for not filing within the relevant 21-day time limit.

[4] I accept that the notification of his redundancy and the lack of any redeployment opportunities communicated to him in January 2016 fell within the circumstances of a genuine redundancy.  As he explained, he believed that there was therefore no ability to challenge the termination of his employment in the circumstances that had been explained to him.  In his evidence he indicated that he saw an advertisement for a similar position to the one he held, retention representatives, on 23 February.  From that point in time he considered that there may not have been a termination of his employment on the grounds of genuine redundancy.

[5] He made inquiries and contacted the Fair Work Commission and ultimately lodged his application on 26 February.  In my view, once the information came to his attention on 23 February it was a short period between that time and 26February when he lodged the application. Unrepresented employees who are not familiar with the procedures under the Act can be expected to take a matter of days to understand the processes for filing an application of this type and to file the application.  It therefore does appear to me that there is a reason of the delay which has justification and is understandable. I have regard to the evidence regarding the reason for the delay.

[6] The next factor is whether Mr Toledo first became aware of his dismissal after it had taken effect.  This is not the case in this matter.  Mr Toledo was advised in advance of his termination and was aware of it before the date on which it took effect. 

[7] The next factor is whether any action was taken to dispute the dismissal. For the reasons I have indicated no such action was taken in the circumstances of this matter. That is understandable because Mr Toledo only became aware of the doubts about the genuineness of the redundancy on 23 February and he took steps from that time to ascertain the process for filing his unfair dismissal application.

[8] I do not consider that there are any questions of prejudice to the employer beyond those that apply to any other unfair dismissal application filed within time.  Once the filing of the application was made on 26February the employer was on notice that the application was pressed, the extension of time was sought and the extension of time could have been granted under s.394(3).

[9] There has been a fair amount of argument and evidence regarding the merits of the application and these revolve around the issue of whether the termination was on account of a genuine redundancy. That question in turn depends on the consideration of the definition of genuine redundancy in the Act, which involves a number of elements, including whether the job was required to be done by anybody in the future, the extent of consultation, compliance with consultation obligations as well as the reasonableness of consideration of redeployment opportunities.  In essence the evidence submitted by the employer is that the decision to advertise for positions only arose after the termination of Mr Toledo's employment and that at the time of Mr Toledo's termination of employment all of the circumstances fitted within the definition of genuine redundancy.

[10] I have considered that evidence, although I have considered it in a limited sense because ultimately the questions of that evidence and especially the timing of various circumstances and considerations really does warrant more detailed consideration, in my view, and more detailed testing of that evidence.  Ultimately the submissions of Foxtel and the evidence it advances may well be accepted as establishing that the termination was on account of genuine redundancy.  However, I am not able to conclude at this stage that the application made, which seeks to challenge the genuineness of the redundancy, is completely without merit. That is not to say that I imply by that that there are significant prospects of success of an argument that the termination was not a case of genuine redundancy.  It is simply a matter that is in my view very much an open question at this stage and I have regard to that preliminary finding in considering the extension of time application. 

[11] I do not consider that there are real questions of fairness between persons in similar positions here.  There may well be others in similar positions but I believe Mr Toledo's application for an extension of time should be considered in relation to his circumstances and I do not believe that in any significant way the situation of other persons has a bearing on his application.

[12] I must therefore consider in the light of those factors whether the circumstances constitute exceptional circumstances within the meaning of s.394(3) of the Act. It is well-established that exceptional circumstances import a strict test; stricter than had prevailed under previous legislation. In all of the circumstances I am satisfied that the circumstances in this matter are exceptional and that the short delay in filing the application beyond the statutory time limit has justification and unusual features which qualify as exceptional circumstances under the Act.

[13] I therefore propose to extend the time limit for filing the application to 26 February 2016, being the date the application was made.  An order to that effect is issued with this decision.

VICE PRESIDENT

Appearances:

Ms Fox, J of counsel on behalf of Mr Toledo.

Ms Dearing, B of counsel on behalf of Foxtel, with Ms Elms, G and Mr Nardozza, A.

Hearing details:

2016.

Melbourne—Video link to Sydney.

1 April.

Final written submissions:

Mr Toledo on 23 March 2016.

Foxtel on 24 March 2016.

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