Rajiv Lal v Rio Tinto Technology and Innovation Ltd

[2014] FWC 4875

[2014] FWC 4875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rajiv Lal
v
Rio Tinto Technology and Innovation Ltd
(C2014/4186)

COMMISSIONER CRIBB MELBOURNE, 21 JULY 2014

Application to deal with contraventions involving dismissal - extension of time - application refused.

[1] Mr Rajiv Lal (the applicant) has made an application under section 365 of the Fair Work Act 2009 (the Act). It is alleged that his employment was terminated for a prohibited reason by Rio Tinto Technology and Innovation Ltd (the company, the respondent).

[2] The company has lodged a jurisdictional objection which is based on two grounds. The first ground is that Mr Lal’s employment was terminated prior to the Fair Work Act 2009 coming into force. Secondly, it was contended that the application was made outside the specified time limit and that the Commission should not exercise its discretion to extend the period for lodgement.

[3] As it was agreed by the parties that Mr Lal’s application for an extension of time should be dealt with on the papers, Mr Lal and the respondent both filed written submissions with Mr Lal also providing submissions in reply.

[4] Therefore, this decision deals with Mr Lal’s application for an extension of time.

Introduction

[5] It was common ground between Mr Lal and the company that Mr Lal’s employment was terminated on 4 August 2008. The company indicated that the reason was redundancy. 1

[6] Mr Lal made this application on 23 April 2014.

Legislative requirements

[7] Section 366(2) of the Act sets out the requirements for determining whether or not to grant an extension of time. It provides as follows:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[8] I will deal with each of the factors set out in s.366(2) in turn.

The reason for the delay - s.366(2)(a)

[9] It was stated by Mr Lal that he was forcibly terminated by being asked to take involuntary redundancy in August 2008. Mr Lal explained that he was told that the excellence centre that he was leading was to be disbanded to save on overheads due to cost pressures. This was said to be despite the excellence centre having saved the company up to $250M per annum in its three years of existence. 2

[10] On 14 March 2014, Mr Lal became aware, through an announcement in the press, that the excellence centre was working again. 3 Prior to that point in time, he stated that he had assumed that the centre had remained dormant. On the same day, he had then contacted the Head of Innovation, Technology and Innovation with the company who explained that the excellence centre had been bought back online last year. On 31 March 2014, Mr Lal inquired if there was a part-time leadership role available in the excellence centre.4 The response he received was that all vacancies are advertised and that every applicant is assessed on its merits.5

[11] The company, for its part, argued that the delay is significant and excessively long - more than five years and six months. Further, it was contended that the creation of an organisational structure that was a resemblance to Mr Lal’s former work area is not an acceptable reason for the delay. No reason was said to have been provided by Mr Lal to explain why he was unable to make an application, during the period of more than five years, between his dismissal and making an application. It was stated that Mr Lal was capable of making an application during that period. 6

[12] I have carefully considered the submissions of the parties on this factor. The reason given by Mr Lal - that the excellence centre was disbanded and that he was unaware that it had been re-established until he saw press reports about it in March 2014 - is understood and acknowledged. However, counterbalancing this is the length of the delay and the absence of any evidence about why the application was not lodged at the time of the dismissal or earlier than when it was.

Any action taken by the person - s.366(2)(b)

[13] It was submitted by Mr Lal that he had disputed his dismissal and requested that he be re-employed by the excellence centre. 7

[14] The company argued that Mr Lal has not provided evidence of any action he took to dispute his dismissal between the date of his dismissal and the first email dated 14 March 2014. The emails submitted by Mr Lal were said to not show that he was disputing his dismissal. Rather, it was contended that, in his emails, Mr Lal did not dispute his dismissal or indicate that he wished to dispute it. 8

[15] The company argued that Mr Lal’s emails only indicated dissatisfaction with the respondent’s general approach to the termination of leaders and to inquire about the availability of employment. 9

[16] In the alternative, if the Commission accepts the emails as disputing the dismissal, the company submitted that, for a period of more than five years, Mr Lal was able to dispute his dismissal but did not do so. 10

[17] There does not appear to be any evidence before me that Mr Lal disputed his dismissal at that time - in August 2008. There has also been no material filed which shows any actions taken by Mr Lal to dispute his dismissal between August 2008 and March 2014. Mr Lal has provided email traffic of March 2014, in the course of which, he asked if there were any leadership roles available. Taking all of this into account, there is no documentation before me which demonstrates that Mr Lal took any other action to dispute his dismissal, except for lodging this application.

Prejudice to the employer - s.366(2)(c)

[18] Mr Lal contended that he has been denied reinstatement despite the resurrection of the excellence centre. He stated that he is not being given back the job that he loved and where he had created value. 11

[19] The company argued that it would suffer prejudice if an extension of time is granted. This is because a significant and excessive period of time has elapsed since Mr Lal’s dismissal. The company would be prejudiced because many witnesses will have moved on and be unavailable to provide evidence. 12

[20] Mr Lal was dismissed on 4 August 2008 and lodged his application on 23 April 2014, more than five years after his dismissal. As this is an extended period of time, I find that there would be prejudice to the company if the application for an extension of time is granted. This is due to the lengthy amount of time during which potential witnesses for the company may have left the company or be otherwise unavailable.

Merits of the application - s.366(2)(d)

[21] Mr Lal submitted that, at the time of his dismissal, he was told that the “low hanging fruit” had been captured and that the excellence centre was to be disbanded to save on overheads since value creation was difficult. It was Mr Lal’s view that this was false. 13

[22] He further argued that, in the refinery where he was working, he invented a particular method which improved product quality. It was stated that he had been publically acknowledged for saving the company scarce capital, perhaps up to $21M. He was also instrumental in increasing production by about 50% in about two months. He said that his excellence centre had saved the company up to $250M per annum. Mr Lal recalled that he was told that the company would employ him forever. 14

[23] It was recounted by Mr Lal that, in 1995, there was a smelter explosion which let out toxic fumes and dust. Consequently, he had developed an uncommon debilitating disease. Mr Lal said that he had wanted to continue working until he was 60. However, in August 2008, he was dismissed. 15

[24] On the other hand, the company contended that Mr Lal has failed to specify the general protections breaches that he is alleging the company has committed. Further, it was argued that Mr Lal has not identified any workplace right that the company had taken action in relation to or had prevented him from exercising. 16

[25] The company also submitted that the reason for Mr Lal’s dismissal was genuine redundancy. That the company has established, five years after his dismissal, a team which has a resemblance to Mr Lal’s former workplace, was said to not provide any basis for Mr Lal’s application. Therefore, it is not possible to conclude that Mr Lal’s case has any merit. 17

[26] As well, the company contended that an application cannot be made under section 365 of the Act in relation to a dismissal that took effect before the commencement of the Act. 18 Mr Lal was dismissed more than nine months before the Fair Work Act 2009 came into force ie. before the general protections provisions came into existence.19 The ability for an individual to make an application under s.365 commenced on 1 July 2009. It was argued that there was no ability provided by the Act, which extends the application of s.365 to dismissals that took effect prior to the commencement of the Act ie. before 1 July 2009. The Company stated that Mr Lal cannot therefore make an application in relation to his dismissal as his dismissal took effect some nine months prior to the commencement of the Act.20

[27] Having carefully considered all of the material before me, I am unable to find that the application has merit. There is no evidence before me which details the alleged adverse action taken by the company nor which of Mr Lal’s workplace rights were contravened by the company. Further, it may well be that a court may find that it does not have jurisdiction to deal with the application as it was lodged prior to the commencement of s.365 of the Fair Work Act 2009.

Fairness as between others - s.366(2)(e)

[28] Mr Lal stated that he understood that some individuals in the excellence centre have continued to work without interruption. He indicated that he did not know the reason for this. 21

[29] It was submitted by the company that, if the application for an extension is granted, this would create an unfair and inequitable difference between Mr Lal and others in a similar position. This is because others would have sought professional advice and lodged an application earlier than five years after dismissal albeit out of time. 22

[30] It is not known whether there were other employees in a like position to Mr Lal at the time of his dismissal. If there were, the company’s submissions on this factor are accepted.

Are there exceptional circumstances?

[31] The basis on which it is decided if the Commission’s discretion should be exercised to grant an extension of time is whether there are “exceptional circumstances” taking into account the factors considered in paragraphs 9 to 30 above.

[32] The term “exceptional circumstances” has been considered in a number of decisions of Fair Work Australia (now the Fair Work Commission). A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 23 summarised various decisions which dealt with the meaning of “exceptional circumstances”. The Full Bench found that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 24

[33] I respectfully adopt this approach.

[34] Taking into account all of the factors set out in s.366(2) of the Act, I do not find that there are “exceptional circumstances” such that I should exercise my discretion and grant an extension of time. It is my view that, the lack of a reasonable explanation for the delay, together with the absence of merit in the application and the prejudice to the company, all mitigate against the exercise of discretion to grant an extension of time. In this case, taking into account the factors set out in s.366(2)(a) to (e), they do not produce a situation which is “out of the ordinary course, unusual, special or uncommon”.

[35] Accordingly, Mr Lal’s application for an extension of time is not granted and the application is dismissed. An order 25 to this effect will be issued separately.

 1   Respondent’s Outline of Submissions - Out of Time Application, dated 4 July 2014, at paragraph 6

 2   Email from Mr Lal dated 13 May 2014 and Email from Mr Lal dated 11 July 2014

 3   Ibid

 4   Ibid

 5   Ibid

 6   Respondent’s Outline of Submissions - Out of Time Application, dated 4 July 2014, at paragraphs 20 - 25

 7   Email from Mr Lal dated 13 May 2014 and Email from Mr Lal dated 11 July 2014

 8   Respondent’s Outline of Submissions - Out of Time Application, dated 4 July 2014, at paragraphs 27 - 28

 9   Ibid at paragraph 29

 10   Ibid at paragraph 31

 11   Email from Mr Lal dated 13 May 2014 and Email from Mr Lal dated 11 July 2014

 12   Respondent’s Outline of Submissions - Out of Time Application, dated 4 July 2014, at paragraph 32

 13   Email from Mr Lal dated 13 May 2014 and Email from Mr Lal dated 11 July 2014

 14   Ibid

 15   Ibid

 16   Respondent’s Outline of Submissions - Out of Time Application, dated 4 July 2014, at paragraphs 33 - 34

 17   Ibid at paragraphs 35 - 36

 18   Ibid at paragraph 39(a)

 19   Ibid at paragraph 2(a)

 20   Ibid at paragraphs 9 - 11

 21   Email from Mr Lal dated 11 July 2014

 22   Respondent’s Outline of Submissions - Out of Time Application, dated 4 July 2014, at paragraphs 37 - 38

 23   [2011] FWAFB 975

 24   Ibid at paragraph 13

 25   PR553358

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