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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Rodny Toledo v Foxtel

Details

AGLC: Mr Rodny Toledo v Foxtel [2016] FWC 2450
Case: [2016] FWC 2450
Decision Date: 18 APRIL 2016

CaseChat Overview and Summary

Mr Rodny Toledo filed an application for unfair dismissal remedy against Foxtel. The application was lodged beyond the stipulated period under the Fair Work Act 2009, necessitating an extension of time for lodgement. The crux of the dispute hinged on whether the circumstances were exceptional enough to warrant an extension, as per section 394 of the Fair Work Act 2009.

The legal issues before the court were whether the delay in filing the application was due to circumstances beyond Mr Toledo's control and whether those circumstances were compelling enough to justify an extension. The court needed to consider the reasons for the delay, Mr Toledo's conduct in pursuing the application, and whether any prejudice would result to Foxtel if the extension was granted.

The court examined Mr Toledo's evidence and submissions to determine if there were exceptional circumstances justifying the late filing. It took into account his explanation for the delay, which included reliance on advice from a third party, and weighed this against the potential prejudice to Foxtel. Ultimately, the court found that the delay was not attributable to exceptional circumstances but rather to a lack of diligence on Mr Toledo's part. Consequently, the application for an extension of time was dismissed.

As a result of the court's decision, the application for unfair dismissal was denied, and no extension of time was granted. The court's ruling stood firm on the basis that the delay did not meet the threshold for exceptional circumstances under the Fair Work Act 2009.

Orders