Raguparan Mahesan v Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust T/A Henry Schein Halas

[2014] FWCFB 4123

[2014] FWCFB 4123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Raguparan Mahesan
v
Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust T/A Henry Schein Halas
(C2014/600)

VICE PRESIDENT WATSON
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
COMMISSIONER LEWIN SYDNEY, 27 JUNE 2014

Appeal against decision [2014] FWC 1895 of Senior Deputy President Drake at Sydney on 24 March 2014 in matter number U2013/17284 - test for granting extension of time - whether exceptional circumstances - consideration of factors - test not properly applied - permission to appeal granted - appeal allowed - consideration of test by Full Bench - extension of time granted - Fair Work Act ss. 394 and 604.

[1] This is a decision given extemporaneously on transcript following a hearing in Sydney on 18 June 2014.

[2] The appeal in this matter relates to the decision of Senior Deputy President Drake refusing to grant an extension of time under s.394 of the Fair Work Act 2009 (the Act). 1 That decision was handed down on 24 March of this year. We are satisfied that there are errors in the decision of the Senior Deputy President. We mention in particular the conclusion reached at [10] of the decision that “there is no aspect of this cessation of employment that could be interpreted as a constructive dismissal.”2

[3] In the circumstances of this matter, where the nature of the argument regarding constructive dismissal was sought to be justified by reference to a series of events over some months, and in circumstances where material sought to be relied upon by Mr Mahesan was not allowed to be tendered in the matter and thereby not considered, we consider that the conclusion reached at [10] was wrong and affected the decision to not grant the extension of time.

[4] Further, we believe that [7] of the decision contains an error because in our view it was relevant to consider all of the factors, including in particular paragraph (c) of s.394(3) in determining whether to grant an extension of time. The finding that those matters were not relevant was an appealable error.

[5] Thirdly, as we read the ultimate conclusion in [11] of the decision, we are not satisfied that the Senior Deputy President has weighed all of the considerations that were required to be considered in totality. It appears to us that the conclusion was based on a single finding in [10], and we believe that that approach is inconsistent with the requirements to apply s.394(3).

[6] We also are of the view that the errors in applying the test for an extension of time attract the public interest. We therefore grant permission to appeal. We allow the appeal and we quash the decision of the Senior Deputy President.

[7] The parties have indicated to us that should we reach such a conclusion it would be appropriate for this Full Bench to determine the application for an extension of time. We consider in all of the circumstances, and in view of the litigation that has occurred in relation to this matter, that we should follow such a course. We have considered the application for an extension of time based on the material filed by the parties.

[8] We do not propose to explain in detail all of our considerations relevant to this question. However, we note and agree with the conclusion reached by the Senior Deputy President in relation to the explanation for the delay and in the application of s.394(3)(a).

[9] We have considered all of the matters referred to in s.394(3) and we note the circumstances whereby Mr Mahesan believed that he was forced to resign, and advanced to the employer his belief in that regard at around the time that he submitted his written resignation. We have regard to that factor in relation to s.394(3).

[10] We also note and have regard to the arguments of the employer in relation to prejudice from granting the delay; the delay in this case being 35 days in addition to the 21 day time period allowed for lodging an unfair dismissal application.

[11] In relation to the merits of the matter we are of the view that it is arguable that there has been a constructive dismissal in the circumstances of this matter. We say no more as to the strength of that argument or its prospects of success. That is an entirely different matter, and we also note that the answer to that question may involve consideration not only of the authorities relating to constructive dismissal, but the full material that Mr Mahesan seeks to rely upon in relation to the history leading to the correspondence of September 2013.

[12] We also note that the question of whether there has been a dismissal would obviously be a preliminary issue that would need to be determined if this matter went forward. There would then be the question of the merits. If there was a finding that there was a dismissal then there would be the question of finding as to whether such a dismissal was harsh, unjust or unreasonable in all the circumstances.

[13] These are questions which would involve a considerable consideration of the evidence ultimately led. We simply note at this stage that we consider that such arguments are arguable and, when taken into account with all of the other factors we are required to have regard to for the purposes of an extension of time, we are inclined to grant the extension of time in this matter.

[14] We note that for the purposes of these proceedings the extension of time is granted as of the date of the hearing of the appeal, and the matter will now be processed in the normal way in accordance with the provisions of the Act.

VICE PRESIDENT

Appearances:

R Mahesan on his own behalf.

R Hassall, Solicitor, for the Respondent.

Hearing details:

2014.

Sydney.

18 June.

 1   Mahesan v Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust T/A Henry Schein Halas [2014] FWC 1895.

 2   Ibid at [10].

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