Mr Syed Raza v Eureka Operations Pty Ltd T/A Coles Express
[2012] FWA 5919
•20 JULY 2012
[2012] FWA 5919 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Syed Raza
v
Eureka Operations Pty Ltd T/A Coles Express
(U2012/7090)
COMMISSIONER BULL | SYDNEY, 20 JULY 2012 |
Application for an unfair dismissal remedy - jurisdictional objection - application made out of time, time for filing not extended.
[1] This matter is an application under s.394 of the Fair Work Act 2009 (the Act) made by Mr Syed Raza (the Applicant) alleging that his previous employer, “Westfarmer T/A Coles Express” terminated his employment in circumstances which were unfair. A response was filed by Eureka Operations Pty Ltd T/A Coles Express (the Respondent). No objection was taken by the Respondent to the apparent incorrect naming of the employer by the Applicant. The Tribunal relies on its powers under s.586 of the Act to correct the application to the extent that the true legal employer of the Applicant is correctly identified.
[2] Mr Raza’s employment was terminated on 13 January 2012, with four weeks pay in lieu of notice (Ex R1 at para 8).
[3] On 10 April 2012, the Applicant filed an application for an unfair dismissal remedy.
[4] On 1 May 2012, the Respondent filed an ‘Employer’s Response to Application for Unfair Dismissal Remedy’. The Respondent raised a jurisdictional objection to the application on the basis that the application was filed more than 14 days after the date on which the dismissal took effect, based on the timeframe specified in s.394(2) of the Act.
[5] Section 394(3) of the Act provides that such applications must be filed within 14 days after which the dismissal took effect or within such further period as the Tribunal allows.
[6] As stated above Mr Raza’s application was filed on 10 April 2012 and he was dismissed on 13 January 2012. The 14 day period to file the application required Mr Raza to file his application on or before 27 January 2012. The period between the last day for filing and the filing of the application was 74 days.
[7] Notwithstanding the jurisdictional challenge by the employer the matter has been subject to a number of unsuccessful attempts to reach a resolution by conciliation.
[8] On 3 May 2012 a telephone conciliation conference was conducted.
[9] The matter was listed for hearing on the 15 June 2012 in order to determine whether an extension of time for the lodgement of the application should be granted.
[10] The parties were given directions to file an outline of submissions and any witness statements in advance of the hearing date. When the Applicant had not complied with these directions he was telephoned by the Tribunal, upon which he advised he had prepared his outline and would forward it to the Tribunal with a copy to the Respondent.
[11] The Applicant did not comply with the Tribunal’s directions; however on 14 June he forwarded an email to the Tribunal which made reference to documents he intended to bring to the hearing the following day.
[12] At the 15 June hearing Mr Raza represented himself and Mr Tim McDonald a solicitor from Moray & Agnew Lawyers was granted leave (there was no objection from the Applicant to his appearance) to appear for the Respondent.
[13] Section 394(3) of the Act provides that in concluding whether exceptional circumstances exist the Tribunal must take 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.
Reasons for the delay
[14] Mr Raza submitted that an extension of time should be granted on the basis that his wife was admitted to Westmead Hospital on 16 January 2012 for the removal of a tumour (PN42-PN64). Mr Raza stated that his wife was discharged approximately three weeks later on either 9 February or 10 February 2012 (PN79). A statement, signed by Dr Bandana Mital of the Wigram St Family Medical Practice dated 1 June 2012, was tendered by the Applicant in support of his claim.
[15] The statement of Dr Mital read as follows:
To Whom It May Concern
This is to certify that I have examined Mrs Syeda Raza who had phyllodes tumor with boarderline feature of right breast and has been operated twice in breast cancer institute in Westmead hospital. She has been under care of Dr. Elisabeth Elder and she had first operation in end of Jan’12 followed by re-excision of tumor in Feb’12 again. She has been under treatment for this from 15th Jan’12 until March’12.
She had infection of surgical wound which took sometime to recover.
She is a mother of 3 young children and her husband, Syed Raza needs to look after her as they do not have any family support.
Should you wish to discuss regarding this letter, please feel free to contact me on above telephone number. (sic)
[16] In response to my questioning, the Applicant on a number of occasions stated that his wife had been in hospital for a period of three weeks (PN53, 67, 76) having entered hospital for an operation on 16 January 2012 and leaving on or about 9/10 February (PN62-PN79).
[17] Following Mr Raza’s submissions the Respondent asked for a short adjournment on the basis that it was the first time the Respondent had heard the Applicant’s arguments regarding his wife’s medical condition.
[18] On resuming the Tribunal was informed by Mr McDonald, which was confirmed by the Applicant, that a settlement had been reached. The matter was adjourned.
[19] Later that day, the parties advised my Associate that they were in disagreement as to the terms of the proposed settlement. This was confirmed in writing by the Applicant in an email sent to my Chambers that afternoon. The matter was subsequently listed for a conference/hearing on 22 June 2012.
[20] On 22 June 2012, the matter proceeded by way of a conciliation conference at the request of the parties. The parties were still unable to resolve the dispute. The matter was listed for hearing on 11 July 2012 in order to allow the Respondent to reply to the Applicant’s submissions for an extension of time for the lodgement of his application.
[21] The Respondent called two witnesses Ms Catherine Keech, the Team Leader for Coles’ HR Advisory team in NSW responsible for the Employer’s operations and Ms Kirsty Williams. Both witnesses had prepared affidavits which were tendered in evidence. The Applicant did not cross examine either witness.
[22] Ms Keech’s evidence was that the medical statement from Dr Mital of 1 June was unclear on Mrs Raza’s illness and the period of hospitalisation. To clarify the position Ms Keech telephoned Dr Mital on 27 June 2012 as per her comment: Should you wish to discuss regarding this letter, please feel free to contact me on above telephone number. Following this telephone conversation Ms Keech outlined her understanding of what Dr Mital had told her in a letter to the doctor on 6 July 2012 which requested her to advise Ms Keech by 5pm Monday 9 July if any aspect of the letter was not accurate (Ex R1 Annexure 1).
[23] Ms Keech’s recollection of the telephone conversation was that Dr Mital had advised her that:
- Mrs Raza had a right breast tumour;
- There was an initial biopsy on 9 September 2011 and then a second biopsy at Westmead Cancer Institute on 14 December 2011;
- The tumor was found not to be cancerous;
- Mrs Raza was required to have day surgery on 23 January 2012;
- A second day surgery and a re excision was required on 2 February 2012;
- Mrs Raza’s last visit to the Westmead Breast clinic was 21 February 2012; and
- Mrs Raza’s recovery period was from 23 January 2012 to the first week of March 2012.
[24] Mr Raza did not cross examine Ms Keech and in response (PN544-PN555) to the Tribunal’s questioning did not take exception to Ms Keech’s written record of the telephone conversation with Dr Mital.
[25] The Respondent rightly in my view conceded that the period between 23 January and the end of the first week in March 2012 when Mrs Raza was in a recovery period would constitute exceptional circumstances as per s.394(3).
[26] The Respondent argues that in the period after the first week of March and the filing of the application there were no exceptional circumstances. There is a period of approximately one month between the first week of March (taking a generous view of the end of the first week of March being Friday 9 March) and the date of filing (10 April 2012).
[27] As is apparent from the above, Dr Mital’s telephone explanation to Ms Keech contrasts markedly to the submission put by the Applicant at the hearing on 15 June 2012 in respect to Mrs Raza’s period of hospitalisation. Mr Raza submitted that his wife had been in hospital for a period of three weeks having entered hospital for an operation on 16 January 2012 and being discharged on or about 9/10 February.
[28] At the FWA hearing on 11 July the Applicant again submitted that his wife stayed overnight in hospital for three weeks (PN271-PN315).
[29] Mr Raza chose not to cross examine Ms Keech and accepted as accurate her written record of her telephone conversation with Dr Mital.
[30] I find that Mrs Raza during the relevant period had day surgery on 23 January 2012 and again on 2 February 2012 and her recovery from these procedures extended to the first week of March 2012.
The merits of the application
[31] Mr Raza submitted that he was employed for 16 years without complaint as a Customer Services Officer until his termination (PN104).
[32] Mr Raza further alleged that had been discriminated against by the Store Manager and Area Manager who are from India because the Applicant is from Pakistan (PN112).
[33] He also alleged that the Store Manager did not have authority to terminate his employment.
[34] The Employer refuted any discrimination had occurred and produced performance discussion records dated 13 September 2011 and 9 December 2011.
[35] This is a case involving disputed facts leading to Mr Raza’s termination. I am unable to conclude that the application is without merit on what was placed before the Tribunal.
Whether Mr Raza first became aware of the dismissal after it had taken effect
[36] Mr Raza was made aware of his termination when it took effect by the site manager. Although Mr Raza disputes the authority of the site manager to effect the termination, the Employer states that he had the requisite authority.
Action to dispute the dismissal
[37] The Respondent states that it received a phone call from Mr Raza on the day of his termination stating he did not receive any documentation, however it alleges the site manager provided Mr Raza with a copy of the discussion record which Mr Raza placed in the bin on his way out of the site.
Prejudice to the employer (including prejudice caused by the delay)
[38] The employer submitted that the time delay would not prejudice its case.
Fairness as between Mr Raza and other persons in a similar position
[39] No persons in similar positions were identified.
Exceptional circumstances
[40] While I am satisfied that exceptional circumstances existed up until the first week of March 2012 (as conceded by the Respondent) I also need to be satisfied they existed up until 10 April 2012 when the unfair termination application was filed.
[41] Mr Raza was asked by the Respondent’s solicitor the following:
Mr Raza do you have any medical evidence to support that Mrs Raza was ill after the first week of March 2012?
to which he replied
Not at the moment. (PN342)
[42] The Tribunal can only deal with the evidence before it. Mr Raza’s application for an extension of time proceeds on the basis of his wife’s medical condition and subsequent treatment and recovery. The medical evidence is that Mrs Raza recovered from her surgeries in the last week of March 2012; he had no evidence of her incapacity subsequent to this period.
[43] Mr Raza submitted that this wife was still seeing her doctor which I take to be correct; however Mr Raza has still had the capacity to appear before the Tribunal on three separate occasions to prosecute his case.
[44] There is no doubting that Mr Raza was faced with difficult circumstances in the initial period following his termination due to his wife’s medical condition. Making allowances for this and extending the time for the filing of his application is not only proper but meets the exceptional circumstances that I am required to be satisfied exist.
[45] I cannot however allow a further extension of time where I am not satisfied that exceptional circumstances exist. Mrs Raza’s medical condition was serious and unfortunate, but it cannot be used by the Applicant indefinitely to justify his out of time application. Even if I held that a further two week period following Mrs Raza’s recovery constituted exceptional circumstances, Mr Raza’s application was not filed for a further two weeks, without adequate explanation having been provided.
[46] In all of the circumstances I am not persuaded to exercise the discretion provided in s.393(3) of the Act to extend the period for Mr Raza to file his unfair dismissal.
[47] Accordingly the unfair dismissal application is dismissed as having not been filed within the requisite statutory time limit and there being no exceptional circumstances to extend the time for filing from 27 January 2012 to 10 April 2012.
COMMISSIONER
Appearances:
S. Raza on his own behalf.
T. McDonald Solicitor for Eureka Operations Pty Ltd T/A Coles Express.
Hearing details:
2012.
Sydney.
11 July.
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