Mr Sathianathan Tharmalinkam v Toll Transport Pty Ltd

[2020] FWC 2728

[2020] FWC 2728

FAIR WORK COMMISSION

DECISION

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

Mr Sathianathan Tharmalinkam
v
Toll Transport Pty Ltd
(U2020/685)

DEPUTY PRESIDENT BULL SYDNEY, 27 MAY 2020

Application for an unfair dismissal remedy - jurisdiction - out of time application - exceptional circumstances - extension of time granted - order issued.

[1] This matter was heard before me on 19 May 2019. This is the published version of the decision in transcript delivered on 20 May 2020, edited for style and clarity.    1

[2] This is an application for an extension of time to file an unfair dismissal application.

[3] The hearing was held on 19 May 2020 and proceeded by telephone. The application is made by a Mr Tharmalinkam who was a mail sorter of the employer, Toll Transport Pty Ltd (the respondent). Mr Tharmalinkam was represented by his son, and the employer was represented by Ms Fabiana James, Senior Manager for Employee and Industrial Relations.

[4] There is no dispute that the application for an unfair dismissal remedy was filed outside the 21-day time limit.

[5] The applicant was agreed by all parties to have been dismissed on 20 December 2019. If one adds the 21-day period that takes us up to 10 January 2020. The unfair dismissal application was filed on 21 January 2020, some 11 days outside the prescribed period.

[6] Mr Tharmalinkam received a termination letter dated 20 December 2019, which stated amongst other things:

“Your employment will end immediately, effective 20 December 2019. You will be paid five weeks' pay in lieu of notice.”

[7] The reasons given for the termination in the correspondence given to Mr Tharmalinkam were that he was unable to safely perform the inherent requirements as a mail sorter and unlikely to return to full fitness at any time in the reasonably foreseeable future. That conclusion followed an independent medical assessment obtained by the employer.

[8] This matter was initially listed for a conciliation conference on 5 March 2020 before a Fair Work conciliator. However, the conciliation did not proceed as the employer wished to have its out of time jurisdictional objection dealt with first.

[9] The time frame for filing an unfair dismissal application, and the ability for the Fair Work Commission (the Commission) to extend the time for filing, are set out at sub-sections 394(2) and (3) of the Fair Work Act 2009 (the Act). As I have stated already, s.394 of the Act requires that the application be made within 21 days after dismissal took effect, or within such period as the Commission allows, subject to taking into account a number of listed matters which are found at sub-section 394(3) of the Act. The reasons to be taken into consideration in finding that there are exceptional circumstances for the application for time to be extended are:

•  the reason for the delay;

•  whether the applicant first became aware of the dismissal after it had taken effect;

•  any action by the applicant to dispute his dismissal;

•  prejudice to the employer including prejudice caused by the delay;

•  the merits of the application; and

•  fairness between the applicant and any other person in a similar position.

[10] The 21-day time limit that applies to the exercise of an employee's right to bring an unfair dismissal application reflects Parliament's intention that this right be exercised promptly; and only where exceptional circumstances can be demonstrated can the Commission exercise its discretion to accept an application out of time.

[11] Looking at the first reason that the Commission is to take into account, that is the reason for the delay, the form filed by Mr Tharmalinkam known as the Form F2 makes the following comment in respect to the reasons as to the late filing. Mr Tharmalinkam's application states:

“… the dismissal was after the five weeks of being paid, until my son advised me about this.”

[12] No other reason is provided and indeed the three-page attachment to the application makes no further reference to the reasons for the late filing but goes into some considerable detail as to the merits of the application and the fairness or otherwise of the dismissal.

[13] The Form F3 filed by the employer in response objected to the claim based on it being outside of the 21-day timeframe. Other than stating that the dismissal was made on medical grounds, no further reasons were provided within the initial response.

[14] In pursuing his application, Mr Tharmalinkam has provided written submissions and witness statements from himself and his son who also attended the dismissal meeting on 20 December 2019. In summary, Mr Tharmalinkam says that on 21 December 2019, the day after his dismissal, his best friend of 15 years passed away. It caused him sufficient stress to require him to put aside his dismissal issues as he believed he had five weeks to file his application.

[15] Further, Mr Tharmalinkam states in his evidence that the human resources representative at his termination meeting had advised him and his son in the following words:

“Well, you have five weeks of pay remaining so you should raise any issue with Fair Work during that time.”

[16] Mr Tharmalinkam said in conclusion that this led to a misunderstanding on the date or timeframe that he had to file his application. In his evidence he states that on 20 December 2019 when he met with the employer with his son as his support person, the employer was represented by a Brian Webb from Toll Operations and a Margo Guilfoyle from human resources. Mr Tharmalinkam was given the dismissal letter and told, in Mr Tharmalinkam's words:

“The business is following the advice from the independent Dr Shahzad. We're just messengers providing you the news from senior members of management.” 2

[17] Mr Tharmalinkam advises that he was then told by Ms Guilfoyle and Mr Webb:

“You have the right to take this to the Fair Work Commission as you believe this is not fair.” 3

[18] Mr Tharmalinkam submits that Ms Guilfoyle also said,

“… you have five weeks of pay remaining so you should raise any issue with Fair Work during that time.” 4

[19] These statements of Mr Tharmalinkam were corroborated by his son, Mr James Tharmalinkam, who represented Mr Tharmalinkam and also gave evidence in support of the application.

[20] In summary, the submissions put forward by the applicant for the reasons for his delay relate to the death of a close friend which resulted in overwhelming grief and anxiety, and the comments made by the employer's representative at the meeting on 20 December 2019 which led him to believe he had five weeks to file his application.

[21] It wasn't until 21 January 2020 that Mr Tharmalinkam’s son notified him that the Commission website stated that only a period of 21 days was provided to file an unfair dismissal application and he was shocked by this revelation as he had thought five weeks was available, that being 24 January 2020, and he immediately lodged his application.

[22] Mr James Tharmalinkam corroborated the evidence of his father that he was researching the unfair dismissal application prospects, looking at cases, and then discovered that the 21-day period existed and that it had expired. So he immediately assisted his father in filing his application.

[23] The respondent provided two sets of written submissions, one on 14 April 2020 where in respect to the merits of the matter the statement was made that the burden to prove that the application is not without merits falls on the applicant. In further submissions on 14 May 2020 it was stated that ignorance of the timeframe was not an exceptional circumstance. Even if it accepted that Ms Guilfoyle had made the alleged statements this did not result in an exceptional circumstance and it did not constitute advice from the employer as to the timeframe in which to file the application.

[24] In the evidence provided by Ms Guilfoyle she denied the alleged statement attributed to herself by the applicant and his son. Ms Guilfoyle stated that she did not raise the Fair Work Commission in the meeting and neither did Mr Webb. If anything, in respect of the Commission being raised, it was raised by the applicant.

[25] Ms Guilfoyle acknowledged that the applicant and his son disputed their dismissal at the dismissal meeting and had advised that they would take it further. Ms Guilfoyle states that she said words to the effect of:

“That's a matter for yourself. You do what you've got to do.” 5

[26] Ms Guilfoyle states that she only referred to the five-week period when reading out the termination letter which stated that five weeks pay would be paid in lieu of notice.

[27] There was no evidence from Mr Webb who was also in attendance at the meeting, who may have been able to corroborate Ms Guilfoyle's evidence.

[28] In concluding, I accept that delay cannot be excused by ignorance. There is no shortage of authority that ignorance of the law will not provide an exceptional circumstance. Further, the death of a friend the following day after his dismissal, no doubt distressful, is not really relevant when the applicant believed he had five weeks to file his application.

[29] I accept that looking at Mr Tharmalinkam's application there were no comments of Ms Guilfoyle raised in the F2, nor was it raised in the accompanying letter attached to his application, nor were the notes said to be taken by Mr Tharmalinkam's son to corroborate what was allegedly said by Ms Guilfoyle, produced in evidence.

[30] Both Mr Tharmalinkam and his son were adamant that the comments were made by Ms Guilfoyle had occurred and this evidence was not broken down on cross-examination.

[31] Ms Guilfoyle, while a frequent response provided to specific questions was that she couldn't recall, was adamant that she never stated that the applicant had five weeks to file his application and despite being a human resource business partner with, on her evidence 25 years in the industry, advised that she was unaware of what the timeframe was to file an application in the Commission for an unfair dismissal.

[32] Ms Guilfoyle also advised that she was standing in at the meeting for a Ms Marie Iskander, the human resource advisor. Ms Guilfoyle stated she was not involved in the case or knew anything about the history of the case. She only read out the termination letter and advised Mr Tharmalinkam that his dismissal had immediate effect.

[33] In respect of the evidence in respect of the delay it comes down to:

(1) credibility of the witnesses and their recall; and

(2) whether the comments attributed to Ms Guilfoyle should lead a reasonable person to assume that they had five weeks to file an application in the Commission.

[34] As I have stated, Mr Webb wasn't called to corroborate the evidence of Ms Guilfoyle and the initial application of Mr Tharmalinkam makes no reference to any conversation with Ms Guilfoyle about the five week period, and the contemporaneous notes of Mr James Tharmalinkam, were not provided.

[35] I am asked by the respondent to place less weight on the evidence of both Mr Tharmalinkam and his son based on the similarity of their statements, and I accept that there is a marked similarity about what is written in both statements.

[36] I can only conclude on the basis of the reasons provided and the evidence given that whatever was said at the meeting on 20 December 2020, by the employer's representatives to the applicant and his son led the applicant and his son to the erroneous conclusion that they had five weeks to file the unfair dismissal application.

[37] Being a telephone hearing, it is very difficult to assess the credibility of two witnesses on a single phone line in one room, and one witness on a phone line on their own in another room.

[38] However, I accept the submission of the respondent that the onus is on the applicant to make their own inquiries which they did not do until at least 21 January 2020, being after the timeframe for which they needed to file their application, and this was done not by the applicant himself but by his son.

[39] While the reasons for the delay are understandable, including the death of Mr Tharmalinkam' close friend, I do not find on their own that they constitute an exceptional circumstance.

[40] I then need to look at the other factors that I am required to have regard for, including whether Mr Tharmalinkam first became aware of the dismissal after it had taken effect. There is no question that Mr Tharmalinkam was made aware of his dismissal on 20 December 2019, the day of the termination when the termination letter was read to him and a copy provided.

[41] I need to have regard to any action taken by the applicant to dispute the dismissal. Other than advising the employer on the day of his dismissal that he would file a case in the Commission, and that his son requested the names of everyone involved in the dismissal so he could file his application 6, the only action taken to dispute the dismissal after the date of termination, was taken by the applicant’s son after the 21 day period.

[42] In respect to prejudice to the employer there is no evidence of prejudice to the employer submitted by Ms James, and the applicant says there is no prejudice to the employer with an 11-day delay.

[43] The merits of the application, on the other hand, require further consideration and unfortunately it is necessary to traverse the history leading to Mr Tharmalinkam's dismissal to ascertain on a prima face basis the merits of his application.

[44] I am however satisfied that what was put before the Commission, prima facie establishes that the application filed by Mr Tharmalinkam is not without merit. While Mr Tharmalinkam provided in his witness statement and his written submissions considerable detail on the merits of his application, the respondent on the other hand, called no evidence and relied only on oral submissions at the hearing in response to questions from the Commission. The decision-maker was not called and Ms Guilfoyle, the only witness for the respondent, had no knowledge of the details of Mr Tharmalinkam's dismissal.

[45] Essentially, the respondent states that the merits can only be tested in a full hearing, which this is not. It is no doubt correct that where evidence is contested it is not appropriate or possible for the Commission to embark on a full assessment of the merits at an interlocutory hearing in respect to an extension of time. However, in this case, Mr Tharmalinkam was dismissed based on fitness for work grounds, which requires a brief summary.

[46] On 23 August 2019 he was stood down by his employer who expressed concerns about his capacity to perform the inherent requirements of his job as a mail sorter, pending an independent medical review.

[47] On 3 September 2019, Mr Tharmalinkam then saw an occupational physician organised by the employer, a Dr Shahzad, and Dr Shahzad provided an extensive written report on 9 September 2019 for the respondent's consideration. In providing his report Dr Shahzad states that he was provided with a job description for Mr Tharmalinkam's role as a mail sorter.

[48] Dr Shahzad notes that he attempted to contact the applicant's treating practitioner, Dr Peter Alexakis on 3 and 4 September 2019 and left messages, however no contact was able to be made with Dr Alexakis. Dr Shahzad's report states that:

“The main concern is safety to self (in respect to the applicant) and others, due to his left eye double vision, due to an underlying ophthalmology condition requiring a specialist appointment and clearance.”

[49] Dr Shahzad further states that the applicant:

“… struggles with repetitive squatting and kneeling. This poses a risk of safety to himself.”

[50] The report goes on to conclude that Mr Tharmalinkam is unlikely to be able to return to work until he has an ophthalmologist clearance regarding his left eye experience of double vision. Dr Shahzad further concludes that Mr Tharmalinkam will have permanent restrictions in lifting more than 5 kilograms, repetitive squatting and kneeling, repetitive pushing and pulling, and pushing and pulling more than ten kilograms.

[51] On 1 October 2019, the respondent discussed the report with Mr Tharmalinkam and on the same day provided him written advice regarding Dr Shahzad's report. Mr Tharmalinkam was told that he would be removed from paid stand down and he could access his sick leave, due to his personal illness of double vision until he received a medical clearance regarding his vision. A medical clearance was required within ten days, being by 11 October 2019.

[52] On 11 November 2019, a further meeting was held with Mr Tharmalinkam regarding his incapacity to perform his role. On the same day a letter was sent to Mr Tharmalinkam confirming that a clearance had been received from Concord Eye Clinic dated 28 October 2019 which stated that he did not have an issue with double vision. He was then placed back on paid stand down while the employer’s medical review continued.

[53] This was done on the basis that Toll still held the view on the medical evidence of Dr Shahzad that Mr Tharmalinkam was unable to safely perform the inherent requirements of his role and that no reasonable adjustments could be made to his position and no other role existed that was suitable to himself.

[54] The correspondence of 11 November 2019 also advised Mr Tharmalinkam that the respondent was considering terminating his employment and invited him to provide any additional information within a four-day period, by close of business on 15 November 2019. He was told that his nominated doctor Dr Alexakis had previously been provided with a copy of the medical report of Dr Shahzad.

[55] On 15 November 2019, in compliance with the request Mr Tharmalinkam provided a clearance from his treating doctor, Dr Peter Alexakis, which stated he was fit to resume his normal duties.

[56] On 2 December 2019, a report described as a supplementary report was provided to the employer by Dr Shahzad. While it doesn't appear that Dr Shahzad had further examined Mr Tharmalinkam, the report states that based on additional information Dr Shahzad confirmed that Mr Tharmalinkam was unfit to return to work in his role.

[57] On 10 December 2019, Mr Tharmalinkam's treating doctor, Dr Alexakis, provided a further medical clearance stating that he had “examined Mr Tharmalinkam today” and in his opinion he was fit to perform his usual duties.

[58] On 20 December 2019, Mr Tharmalinkam was terminated and he was told in his termination letter that based on all the relevant information including his response it had been determined that he would be terminated based on medical grounds, being his inability to safely perform the inherent requirements of his role.

[59] Mr Tharmalinkam states that Dr Shahzad's report was flawed, he was not tested on pushing of a trolley and lifting of weights, he had obtained the eye clearance as requested, he had gone to his general practitioner and obtained medical clearances as requested, and despite this on 20 December 2019 he was terminated.

[60] At the termination meeting he requested he be sent to another third party, independent doctor, due to the flawed report of Dr Shahzad and he was told that they were sorry, he had to be terminated today.

[61] Based on the above summary of the background circumstances into Mr Tharmalinkam's termination, I conclude that the merits as put forward by Mr Tharmalinkam favour an extension of time.

[62] The next matter I need to consider is fairness between the applicant and another person in a similar position. Both parties accepted that this was not a relevant consideration in this application.

[63] In this matter I conclude that the only factor in favour of an extension of time is the merit argument put by the applicant. As stated, the respondent has not responded to the merit argument in any detail. The detail provided by the respondent concentrated on the meeting that occurred on 20 December 2019, and what was said by the respondent's representatives at this meeting.

[64] In respect to the merits of the application the written submissions dated 14 May 2020 of the respondent state on that the evidence put forward in respect of this factor is incomplete and untested.

[65] Mr Tharmalinkam has raised issues with having complied with his employer's request to provide his own medical evidence, and his request to have another independent assessment conducted was declined.

[66] The expression, “exceptional circumstances,” has been considered on numerous occasions and the respondent refers to a decision of the Full Bench in Nulty v Blue Star Group Pty Ltd 7 where the meaning of “exceptional circumstances” was traversed. The Full Bench stated amongst other things that circumstances will not be exceptional if they are regularly, routinely or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which although individually are of no particular significance, when taken together are seen as exceptional. The Full Bench stated that the ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which when viewed together may reasonably be foreseen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[67] As stated, there was no evidence from the decision-maker for the Commission to have regard for, only the oral submissions of the respondent's representative in regard to merit. I am satisfied on what has been raised of a prima face case that the merits of Mr Tharmalinkam's application has established exceptional circumstances. Why the medical clearances from Mr Tharmalinkam's general practitioner were not accepted, having been requested, has not been made clear to the Commission, nor apparently Mr Tharmalinkam. Why the request to have a further independent medical assessment was refused was not explained. What was concluded by the employer in respect to the alleged flaws of the independent medical assessor's assessment put by Mr Tharmalinkam was not responded to in any detail, if at all by the respondent. These matters and other procedural matters which are clear from what I have already alluded to, in my view are sufficient for the Commission to grant an extension of time.

[68] The eleven-day period, while not inconsequential, is still not a lengthy period and it is accepted that there is no prejudice to the employer in granting the extension.

[69] Whether the merit argument can be sustained in a full hearing is obviously not a matter to be dealt with in this application. On that occasion the respondent will be able to provide its full defence to the application.

[70] On this basis an order will issue, granting the extension of time.

DEPUTY PRESIDENT

Appearances:

Mr Sathianathan Tharmalinkam and Mr James Tharmalinkam on the Applicant’s behalf

Ms Fabiana James, Senior Manager for Employee and Industrial Relations

Hearing details:

2020
May
19, 20

Printed by authority of the Commonwealth Government Printer

<PR719628>

 1   See extra curial publication (1997) 9 Judicial Officers’ Bulletin, per Gleeson CJ at 25

 2   Witness statement at [14]

 3   Witness statement at [15]

 4   Ibid at [16]

 5   Witness statement at [11]

 6   Witness statement at [16]

 7   [2011] FWAFB 975