Nethmie Lankika Sriyani Madiwela Madiwela Gamage Don v The Trustee for the Lt Corporate Management Unit Trust

[2024] FWC 1106

[2024] FWC 1106 [Note: An appeal pursuant to s.604 (C2024/2747) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nethmie Lankika Sriyani Madiwela Madiwela Gamage Don
v

The Trustee For The Lt Corporate Management Unit Trust

(U2024/2118)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 29 APRIL 2024

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances found – application dismissed.

Introduction

1. On 26 February 2024, Ms Madiwela made an application to the Commission for an unfair dismissal remedy. She contends that she was unfairly dismissed by the Respondent on 17 December 2023.[1]

1. Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3).

1. The period of 21 days ended at midnight on 7 January 2024. The application was therefore filed 50 days outside the 21-day period.

1. For the application to proceed, the Applicant requires the Commission grant a further period of time within which to bring her application.

1. The question of whether to grant additional time was dealt with at a hearing on 26 April 2024, at which the Applicant was granted permission to be legally represented and gave evidence in support of her application.

Extension of time

1. Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[2]

1. The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[3] 

1. In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

·   the reason for the delay,

·   whether the person first became aware of the dismissal after it had taken effect,

·   any action taken by the person to dispute the dismissal,

·   prejudice to the employer (including prejudice caused by the delay),

·   the merits of the application, and

·   fairness as between the person and other persons in a similar position.

1. In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations. 

1. Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[4]

Relevant factors

Reason for delay

1. The Act does not specify what reason for delay might justify granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]

1. The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[6] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[7]

1. The Applicant had commenced working for the Respondent on 5 September 2022, initially as a delivery driver/customer service assistant before being promoted to the full-time position of Warehouse and Logistics Manager. About half of her work involved logistics for the Garden State Bakery (Bakery).

1. On 17 December 2023 the operations manager telephoned the Applicant and said that they were closing down the Bakery. The Applicant received a text message that day which read:

“I just wanted to let you know that we had to make a call for the business and the result is GSB is loosing [sic] way too much money to stay open and so we have decided to stop the production from tomorrow. We are sorry to have to let you go but it is a business and not personal decision. HR and accounts team will take care [sic] all the paperwork. Please let me know if there is anything I can help with.”

1. Having not heard from the Respondent, the Applicant followed up on 20 December 2023 and other occasions asking when her leave would be paid out and whether she was entitled to redundancy payments. She was advised that she would be provided the information but that it was difficult in light of the Christmas break.

1. The Respondent had issued a letter of termination to the Applicant dated 16 December 2023 by email. However, for some reason, the emailed letter remained in the author’s email outbox and had not actually been sent.  It was sent, and received by the Applicant, on 5 February 2024, when the Applicant made yet further enquiries on that date.

1. The letter of termination stated that the reason for the Applicant’s dismissal was because her visa status did not permit her to work full-time. As a result, the Respondent was unable to continue her employment as the full-time Warehouse and Logistics Manager.

1. The Applicant’s evidence, which I accept, is that up until receiving the letter of termination on 5 February 2024, she believed that her employment was being terminated by reason of redundancy. She had no intention of disputing her dismissal in those circumstances. However, when she received the letter of termination and learnt that her employment was being terminated because of her visa status, she did wish to challenge her dismissal.

1. The Applicant initially submitted that the dismissal had taken effect on 5 February 2024 when she received the letter of termination. However, her representative did not press this submission at the hearing. The Applicant was clearly and unambiguously informed on 17 December 2023 that her employment was terminated. Accordingly, the period of 21 days ended at midnight on 7 January 2024. The application was therefore filed 50 days outside the 21-day period.

1. I accept that the Applicant has provided a wholly acceptable explanation of the delay between 7 January 2024 and 5 February 2024. It was entirely reasonable for the Applicant to understand that her employment was being terminated by reason of redundancy and decide not to challenge the dismissal in those circumstances. She only became aware that the Respondent asserted the real reason for the dismissal was her visa status when she received the letter of termination dated 16 December 2023, but neither sent nor received until 5 February 2024.

1. However, the Applicant has not provided an acceptable reason for the delay between 5 February 2024 and 26 February 2024 when the application was lodged. It was submitted that the Applicant believed that the 21-day period started on 5 February 2024, and this may well be so, given that the application was lodged on the 21st day of such a period.  However, that in essence amounts to a submission that the reason for this period of delay was ignorance of how the 21-day period is counted.  It is well-established that ignorance of the requirement is not an acceptable reason, and in circumstances where there is no evidence that the Applicant made any enquiries or sought any advice as to the time period, I am not persuaded that the Applicant has provided an acceptable, credible, or satisfactory explanation for the whole of the period of the delay. The fact that there is not such an explanation for the whole of the period of the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

1. Whilst the Applicant became aware of the fact that her employment was being terminated on 17 December 2023 and in that sense, had the full 21-day period within which to lodge her application, given she only became aware of the purported real reasons for the dismissal after the 21-day period, I consider this factor weighs in favour of a finding of exceptional circumstances.

Whether the applicant took action to dispute the dismissal

1. The Applicant sought further information about her dismissal and relevant entitlements on several occasions, and the Respondent was unacceptably slow to provide her with the necessary information. It is more than unfortunate that despite the Applicant’s queries, it is not clear that any efforts were made by the Respondent to ensure that the letter of termination had been sent.  I consider this consideration weighs in favour of a finding of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

1. There is no evidence of any particular prejudice to the Respondent. I have treated this as a neutral consideration.

Merits of the application:

1. The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the timeframe. For example, a highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient.

1. The Respondent contends that the Applicant’s position was not made redundant because, despite the changes in its operational requirements, it still required the Applicant’s role to be performed on a full-time basis. That appears to be inconsistent with the original text message sent to the Applicant on 17 December 2023.  The Respondent contends that when the Applicant applied for the full-time role, she advised that she was on study leave which permitted her to work full-time, and that she would be applying for a spousal visa which would give her the legal right to work full-time in the position. The Applicant’s representative submits that the Applicant was made redundant.  The Applicant submits that whilst her visa status may have led to the frustration of the Applicant’s employment contract at a later date, because she was unable to legally work full-time in the position, that was not the case when the employment was terminated.

1. The merits of the application will depend largely on the evidence concerning the Respondent’s reason for the dismissal. If the Respondent can establish that the actual reason for the dismissal was that it was legally unable to allow the Applicant to work full-time given her visa status, it will likely establish a defence to the unfair dismissal application.  Alternatively, the evidence may make out that at the time of the dismissal, the Applicant was in fact made redundant. In the circumstances I have treated this as a neutral consideration.

Fairness as between the person and other persons in a similar position

1. I am not aware of any other cases that relate to this consideration and no matters were brought to my attention and I have treated this to be a neutral consideration in this case.

Conclusion

1. In summary, whilst this is a finely balanced matter, I am not satisfied that there are exceptional circumstances taking into account the various considerations both individually and collectively. The absence of an acceptable reason for the delay in making the application outweighs the actions taken by the Applicant to obtain information about her circumstances and the fact that she only became aware of the purported reasons for the dismissal on 5 February 2024.

1. As there are no exceptional circumstances, no additional time can be allowed for Ms Madiwela to make her application. This means that the Applicant is not entitled to apply for an unfair dismissal remedy.

1. The application is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

Mr A Wright, Solicitor, with permission on behalf of the Applicant.
Ms G Guida, Solicitor, with permission on behalf of the Respondent.

Hearing details:
2024
26 April

[1] The F2 filed by the Applicant initially refers to the Applicant being dismissed on 16 December 2023. However, it was established that the Applicant was dismissed on 17 December 2023.

[2] Nulty v Blue Star Group (2011) 203 IR 1 at [13].

[3] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].

[4] Ibid.

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

[6] Long v Keolis Downer[2018] FWCFB 4109 at [40].

[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

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