Ralph Saplan v Cirrus Networks (Victoria) Pty Ltd
[2024] FWC 2364
•5 SEPTEMBER 2024
| [2024] FWC 2364 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ralph Saplan
v
Cirrus Networks (Victoria) Pty Ltd
(U2024/8736)
| COMMISSIONER ALLISON | MELBOURNE, 5 SEPTEMBER 2024 |
Application for an unfair dismissal remedy - extension of time
Mr Ralph Saplan was engaged by Cirrus Networks (Victoria) Pty Ltd (Cirrus) as a Senior Service Desk Analyst to provide support to Jewish Care Victoria. Mr Saplan was engaged from 23 May 2023. Mr Saplan was deeply engaged with his job and took pride in his work. During June and July 2024, Cirrus allowed Mr Saplan to work remotely from the Philippines where Mr Saplan was dealing with multiple family crises including the death of a cousin and an uncle, and the illness of another uncle. On 3 July 2024, Cirrus held an online meeting with Mr Saplan to inform him that because of operational reasons, including the loss of a number of key accounts, Mr Saplan’s role was to become redundant. As a result, Mr Saplan’s employment ceased on 4 July 2024.
Mr Saplan believes his termination was unfair. He claims his termination was not a genuine redundancy. Mr Saplan filed an unfair dismissal application on 27 July 2024.
An application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect.”[1] If an application is not made in this time frame, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,[2] and the Commission chooses to exercise its discretion under s.394(3) of the Act to extend the period for the application.
Mr Saplan’s application was received by the Commission two days out of time. This decision considers whether exceptional circumstances exist that warrant the Commission exercising its discretion under s.394(3) to extend the period for Mr Saplan’s unfair dismissal application.
In relation to Mr Saplan’s application for an extension of time - with the exception of matters relating to the merits of the unfair dismissal case - there were no key factual issues in dispute between the parties. The parties consequently agreed for me to determine the extension of time matter on the papers.
Relevant Dates, Legislation and Legal Principles
The parties agree, and I find, that Mr Saplan’s employment was terminated effective 4 July 2024. This is confirmed in the termination letter presented to Mr Saplan on 3 July 2024.
For Mr Saplan’s application to have been made within the appropriate time (i.e. 21 days after the dismissal took effect), it needed to have been made by midnight on 25 July 2024. The application was filed in the Commission on 27 July 2024, and is two days late.
For Mr Saplan’s unfair dismissal application to now proceed, it is necessary for him
to obtain an extension of time in which to make the application. Section 394(3) of the Fair Work Act 2009 (Cth) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
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.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
The meaning of the term ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[4] It is accepted that 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, can be considered exceptional.[5]
I will now consider each of the matters under s.394(3).
Considerations under s.394(3)
What was the reason/s for the delay?
On the material before me I find that the reason for delay related to Mr Saplan having to deal with multiple family tragedies and mental health issues. In making this finding I rely on the following:
Mr Saplan’s statement that:
oA cousin he was very close to passed away in difficult circumstances;
oShortly after an uncle passed away;
oAt the same time another uncle was diagnosed with a serious disease, and Mr Saplan commenced supporting him financially;
oWhile the above occurred, Mr Saplan’s physical and mental health deteriorated; and
oMr Saplan’s mental health deterioration was exacerbated by his termination.
Documentary evidence provided by Mr Saplan including:
oDeath Certificate of Mr Saplan’s uncle dated 3 June 2024;
oMedical certificate dated 30 July 2024 stating that Mr Saplan’s uncle is suffering from a serious disease; and
oMedical certificates stating Mr Saplan as of 15 August 2024 is suffering from mental illness including hypertension and panic attacks.
Cirrus did not contest any of the evidence before the Commission in relation to reason for delay.
I am of the view that the combination of Mr Saplan having to deal with multiple family tragedies accompanied by the deterioration in his mental illness provides an acceptable reason for a short two – day delay, and weighs in favour of a finding of exceptional circumstances.
When did Mr Saplan first become aware of his dismissal?
The parties agree and I find that Mr Saplan was made aware of his dismissal via an online call on 3 July 2024, one day before the dismissal took effect on 4 July 2024.
I am satisfied that Mr Saplan had the full benefit of the 21 days to file his application. Accordingly, this matter is neutral in considering whether there were exceptional circumstances.
Did Mr Saplan take any action to dispute the dismissal?
The parties agree and I find that Mr Saplan did not take any action to dispute the dismissal, other than by filing his unfair dismissal application. This factor weighs against a finding of exceptional circumstances.
Will Cirrus suffer any prejudice because of the delay?
Neither party submitted that Cirrus would suffer any prejudice because of the delay.
This factor weighs neither for nor against a finding of exceptional circumstances.
What are the merits of Mr Saplan’s unfair dismissal application?
Mr Saplan claims his dismissal was unfair because he was made redundant in circumstances where the redundancy was not genuine. He contends that Cirrus did not meet the consultation obligations under the Clerks Private Sector Award 2020, which applied to his employment. He claims that Cirrus made a perfunctory attempt at consultation at a meeting on 3 July 2024, after the decision to terminate his employment had already been made. In the meeting Cirrus indicated that there was nothing Mr Saplan could say or do which would influence the decision.
Cirrus contends the dismissal was fair because it was a genuine redundancy. Cirrus claims that it was required to make operational changes due to the loss of key client accounts in June 2024, which led to Mr Saplan’s role being made redundant. Cirrus states that Mr Saplan’s role no longer exists and that it arranged a consultation with Mr Saplan as soon as it was identified that his role was excess to requirements of the business and that there were no other suitable redeployment opportunities within the business unit.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits of this matter. Mr Saplan appears to have an arguable case, to which Cirrus has an apparent defence. As a result, the merits do not weigh for or against a finding of exceptional circumstances.
Fairness as between Mr Saplan and other persons in a similar position?
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion – Taking the above matters into account, are there exceptional circumstances justifying an extension of time?
For the reasons given above, I have found that Mr Saplan’s reasons for delay weigh in favour of a finding of exceptional circumstances. I have found the fact Mr Saplan did not dispute the dismissal weighs against a finding of exceptional circumstances. I have found all other matters to be neutral.
Taking into account all of the circumstances of this matter I am satisfied, that on balance, there are exceptional circumstances. This is because the reasons for delay – the fact Mr Saplan was dealing with multiple family tragedies as well as mental health issues – appears to me to be a combination of factors that are not only terribly sad but are also “out of the ordinary course”, “unusual, or special, or uncommon.” I have also had regard to the fact the delay is only a short period and Cirrus has suffered no prejudice from the delay. Accordingly, I have decided I should exercise my discretion to allow a further period of time for Mr Saplan’s application to be made.
The application will proceed to a merits hearing. I will set the matter down for a case management conference.
COMMISSIONER
Hearing details:
Determined on the papers
Final Written Submissions:
Respondent, 22 August 2024
Applicant, 28 August 2024
[1] Fair Work Act 2009 (Cth) s.394(2) (‘the Act’).
[2] With reference to matters set out in s.394(3) of the Act.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, 5 [13].
[5] Ibid, 5 [13]; Stogiannidis [38].
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