Mr Ugendranath Shanmuganathan v Foxconn Australia Pty Ltd T/A Foxconn Australia Pty Ltd

[2020] FWC 4009

[2020] FWC 4009

FAIR WORK COMMISSION

EX TEMPORE DECISION

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

Mr Ugendranath Shanmuganathan
v
Foxconn Australia Pty Ltd T/A Foxconn Australia Pty Ltd
(U2020/7636)

DEPUTY PRESIDENT BULL SYDNEY, 30 JULY 2020

Application for an unfair dismissal remedy. No dismissal as per the FW Act, in alternative application filed out of time, no exceptional circumstances to extend time to file application.

[1] This matter was heard by telephone before me on 23 July 2020 when I delivered my decision on transcript. As advised at the time a published decision would issue; this is now the published version of the decision, edited for style and clarity. 1

[2] On 3 June 2020, Mr Shanmuganathan (the applicant) filed an unfair dismissal application pursuant to s.394 Fair Work Act 2009 (the Act). Looking at his application, in particular he states a number of matters occurred. He states that the dismissal took effect on 20 May 2019, although there seemed to be some dispute about this date, but for the purposes of this decision it is not determinative. He names Foxconn Australia trading as Private Company China Division as his employer. This appears not to be the correct name and I will amend the application pursuant to s.586 of the Act to reflect the correct employer as Foxconn Australia Pty Ltd (Foxconn).

[3] The application states that Mr Shanmuganathan is ‘not sure’ why he was dismissed but goes on to state some ‘assumptions’ as to why he was dismissed. He states that he discussed his employment with his wife and decided to quit. He states that he asked to be made redundant so he could transfer money into his superannuation account and was told the position was not redundant.

[4] Mr Shanmuganathan gave evidence and was cross-examined and stated that he was on a disability support pension and had been unfit for work since leaving Foxconn. He provided a medical certificate which was dated 15 January 2020. The certificate states that the applicant has a medical condition known as left forearm dystonia, which on the medical certificate states that the onset of this impairment, (if that is what it is) commenced on 1 August 2017 and the symptoms are pain and stiffness and deformity. The certificate is for a period of three months from 15 January 2020 to 15 April 2020. No other medical evidence was provided by the applicant.

[5] As a remedy the applicant seeks 12 months' pay, paid as a redundancy payment.

[6] The Act is clear in respect of unfair dismissal applications.

[7] There needs to be a dismissal at the initiative of the employer, or a demonstrated forced resignation. This is set out at s.386(1) of the Act which states that a person can only be dismissed if the person's employment with his or her employer has been terminated on the employer's initiative, or a person has resigned from his or her employment but was forced to do so because of conduct or a course of conduct engaged in by his or her employer.

[8] Further, if a dismissal has been established the applicant needs to file the application within 21 days of their dismissal. This is made clear at s.394(2) of the Act which states the application must be made within 21 days after the dismissal took effect; or within such further period as the Fair Work Commission (the Commission) allows under sub-section 394(2).

[9] Sub-section 394(2) of the Act provides the Commission with the ability to extend time to file an unfair dismissal application where the Commission is satisfied that exceptional circumstances exist, taking into consideration a number of factors. Those factors are:

(a) The reasons for the delay;

(b) Whether the person first became aware of the dismissal after it had taken effect;

(c) Any action taken by the person to dispute the dismissal;

(d) Prejudice to the employer;

(e) The merits of the application; and

(f) Fairness as between the person and other persons in a similar position.

[10] In this matter the employer was granted leave to be represented by a solicitor under s.596(2)(a) and (b) of the Act. The employer states that the applicant resigned and that there was no dismissal on the initiative of the employer, and further there was no forced resignation.

[11] In the alternative, the employer states there are no exceptional circumstances for the Commission to extend time to file the application outside the 21-day period allowed.

[12] To support its submission the employer provided copies of two emails sent by the applicant on Monday, 15 April 2019. These emails were sent by the applicant to a Ms Pearl Rodrigues who was at the time the Human Resource Manager. One email which was sent at 12.44 pm on Monday the 15th states as following:

“Hi Pearl,

As discussed I’m ready to quit work due to unknown medical conditions with both my arms impacting work and Doctors unable to tell when I get back to normal.

Will you be able to get drawer keys from security and a box and hand it over to Bhojanna to empty my three drawers and put them into a box and hand over to the security.

Also, is it possible to extract the Hard Drive from my PC and put it alongside the box. I thank everyone at work for everything and support.

God knows me well and has great plans for my future.

Thank you Pearl.”

[13] Later that day at 8.20 pm the applicant sent a further email to Ms Rodrigues and it states:

“I am very sorry to be writing this letter to hand my resignation in due to medical reasons.

As you are aware I have been having some medical problems over the past few years and it has left me now unable to continue working.

I enjoyed working for Foxconn Australia and have enjoyed my career to date.

I now need to face facts and pay more attention to my health and I am unable to do this whilst I am working.

Thank you all for giving me this opportunity and experience. I have thoroughly enjoyed my time at Foxconn.

Best wishes for the future.”

[14] There are two impediments the applicant in seeking to pursue his application needs to overcome.

[15] He first needs to demonstrate that he was dismissed on the initiative of the employer or that he was forced by the employer to resign; and if he can establish either of those he then needs to establish to the Commission's satisfaction that exceptional circumstances exist to extend the time for filing his application on the basis it has been filed well out of time.

[16] In respect to the first hurdle, the applicant says he was indirectly asked to resign by Ms Rodrigues the HR Manager. Ms Rodrigues who gave evidence denies this and confirms that the applicant requested that he be made redundant which she declined to do so on the basis that his position was still required by the employer.

[17] Having heard the evidence of the applicant and Ms Rodrigues I am not satisfied that there was either a dismissal on the initiative of the employer or that there was a forced resignation due to the conduct of the employer. I reach this conclusion in particular having regard to the applicant's email correspondence, which I have referred to, on 15 April 2019 and importantly his comment where he stated:

“I now need to face facts and pay more attention to my health and I am unable to do this while I am working”.

[18] Although not actually working at the time, he was still employed but was not fit to undertake any work.

[19] The applicant further accepted in cross-examination that he did not have to resign, and he was advised that he could return to work when fit to do so. Unfortunately, the applicant still remains unfit to work.

[20] On this basis, the application must be dismissed on the jurisdictional basis that there was no dismissal on the employer's initiative, and nor was he forced to resign due to the employer's conduct.

[21] In any event, if this conclusion is incorrect the Commission is not satisfied that there exist exceptional circumstances to extend the time to file the application outside the 21-day period.

[22] In considering the criteria that the Commission must have regard for in the first instance, the reasons for the delay provided by the applicant are virtually non-existent. He has accepted that he had access to the internet and email. He has provided medical evidence which is of no real assistance to the Commission as it does not demonstrate that he had no ability to file his application within the 21-day period or any period following that 21 days up until some 12 months later when he has decided to make this application.

[23] There does not appear to have been any reason notified by the applicant in his application or his oral submissions, or in cross-examination, that would have prevented him from filing his application within the 21-day period. The applicant was clearly aware of his dismissal. He has taken no action until some 12 months later.

[24] In respect of prejudice to the parties I consider this to be a neutral consideration, despite the employer's submissions that if the matter proceeded Ms Rodrigues has demonstrated she had a clear memory of the events and would probably be the only witness called for the employer in respect to any unfair dismissal application.

[25] In respect of fairness between the parties and other persons, I also consider this a neutral factor.

[26] In respect of the merits, on what has been put to date by Mr Shanmuganathan I could only best describe his merit argument as not strong.

[27] Therefore, the conclusion of the Commission is, on both objections raised by the employer, that there has been no dismissal, no forced resignation and that exceptional circumstances do not exist to allow the application to be extended past the 21-day period.

[28] The applicant's application must be dismissed and that is what will happen. The decision will be published in due course subject to any editing that needs to be made.

[29] The matter is now adjourned, thank you.

DEPUTY PRESIDENT

Appearances:

Ugendranath Shanmuganathan, Applicant appeared by and on behalf of himself
Erin Kidd, Special Counsel, McCabe Curwood for the Respondent

Hearing details:

By Telephone

2020
July
23

Printed by authority of the Commonwealth Government Printer

<PR721426>

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