Mr Tsegay Hadgat v Spotless Group Limited T/A Spotless

[2014] FWC 6448

[2014] FWC 6448

FAIR WORK COMMISSION

DECISION

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

Mr Tsegay Hadgat
v
Spotless Group Limited T/A Spotless
(U2014/11296)

COMMISSIONER CLOGHAN PERTH, 6 OCTOBER 2014

Unfair dismissal - jurisdictional objection - out of time.

[1] On 30 July 2014, Mr Tsegay Hadgat (Mr Hadgat or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Spotless Group Limited (Spotless or Employer).

[2] Mr Hadgat states in his application that his dismissal took effect on 1 July 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2) of the FW Act.

[5] Mr Hadgat has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 30 July 2014), if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[7] To resolve the question of whether there were exceptional circumstances to allow the application to be filed on 30 July 2014, I issued Directions to the parties on 6 August 2014 advising that the matter would be determined by written submissions. Having received the written submission, this is my decision and reasons for decision as to whether there are exceptional circumstances to allow the application to be filed on 30 July 2014.

RELEVANT BACKGROUND

[8] Mr Hadgat’s reasons for the delay are succinct “I...[was] not aware with legal procedure. I was roaming around and share my grief of unfair termination. Then I encountered to one of friend after 21 days of my termination and he informed me the legal steps to appeal after 21 days of effective termination. He helped me to file the application...”.

[9] The Employer submits that on 29 May 2014, it forwarded to the Applicant correspondence which advised that Spotless had only been successful in retaining a portion of its contract for cleaning with the Perth Transport Authority. Consequently, the unsuccessful parts of the current contract would terminate on 30 June 2014. The correspondence specifically states, “this letter constitutes your notice of termination due to the contract no longer being held by Spotless”. Spotless indicated that it would make every effort to discuss with the Applicant suitable redeployment opportunities. Finally, “...your employment will be terminated as a result of redundancy on 30th June 2014”.

[10] On 2 July 2014, Mr Hadgat signed two separate employment termination forms which both state that his employment ceased on 1 July 2014.

[11] I am satisfied that the Applicant was advised that his employment would cease on 30 June or 1 July 2014 on 29 May 2014.

CONSIDERATION

[12] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[13] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[14] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[15] The burden lies with Mr Hadgat to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I shall now consider those circumstances set out by the Applicant within the legislative provisions.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[16] The Applicant, to his credit, does not attempt to “gild the lily” regarding reason for delay in filing his application within 21 days. The simple reason that the application was not filed within 21 days is because Mr Hadgat was unaware that he had a statutory right to contest the alleged unfairness of his dismissal. Consequently, he was also unaware of the legislative timeline in which to make the application.

[17] Unfortunately for the Applicant, being unaware of the provisions of the FW Act and its statutory timeline, is not an exceptional circumstance. If becoming aware of the FW Act and the time in which to file an unfair dismissal application were exceptional circumstances, the statutory timeline would be meaningless. Being unaware of the provisions of the FW Act, the Full Bench of the Commission determined, is not an exceptional circumstance for delay in lodging an application Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[18] I am satisfied that the Employer mailed to Mr Hadgat on 29 May 2014 correspondence stating that his employment would cease on 30 June 2014. The Employer does not deny that the Applicant was on leave during this period. On returning from leave, the Applicant made contact with the Employer and signed an Employment Termination Form on 2 July 2014.

[19] Approximately 23 of 75 staff were redeployed to the successful cleaning contractors. Mr Hadgat was one of those staff.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[20] With the exception of filing the application, Mr Hadgat concedes that he took no action to resolve the dispute with his Employer.

Paragraph 394(3)(d)

Paragraph 394(3)(e)

Paragraph 394(3)(f)

[21] Mr Hadgat does not individually address each criterion above except to say that he felt he was racially discriminated against. I adopt a neutral position with respect to each criterion. I note, in any event, that where it is found that a dismissal is a genuine redundancy, it is not an unfair dismissal.

CONCLUSION

[22] In conclusion, for the reasons set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Mr Hadgat filing his application beyond the statutory timeline of 21 days. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 16 August and 6 September 2014.

Respondent: 4 September 2014.

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