Ramesh Prasad v Prysmian Australia Pty Ltd
[2019] FWC 1463
•6 MARCH 2019
| [2019] FWC 1463 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ramesh Prasad
v
Prysmian Australia Pty Ltd
(U2018/12592)
COMMISSIONER JOHNS | SYDNEY, 6 MARCH 2019 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
[1] The Fair Work Act 2009 (Cth) (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Ramesh Prasad (Applicant) a further period for lodgement of his application for an unfair dismissal remedy.
[3] The relevant circumstances (about which I make findings of fact) are as follows:
a) Mr Prasad commenced employment with Prysmian Australia Pty Ltd (Respondent) on 7 July 2007. He was employed on a full-time basis as an Internal Sales Coordinator. He earned $66,570 per annum.
b) Mr Prasad’s employment with the Respondent ended on 9 October 2018. The Respondent contends that there was no dismissal. It says there was a mutual agreement to separate. The Applicant asserts that he was dismissed.
c) If the Applicant was dismissed then (in order to be within the 21 day timeframe required for the filing of an unfair dismissal application) he should have filed his unfair dismissal application on 30 October 2018.
d) Mr Prasad lodged the present F2 application on 3 December 2018.
e) Therefore, the application was filed:
i. 55 days after the employment was terminated.
ii. 34 days after the 21 day time limit provided for in the FW Act.
[4] In his F2 application the Applicant acknowledged that his application was filed late. He wrote,
“Initially I lodged an application on 15th of October 2018, U2018/10736. I was [asked] by the respondent to withdraw the application on conditions that they will provide me with extra documents and reports which [the] respondent did not fully [comply] with.”
[5] Having reviewed the Commission’s case management system I was able to ascertain that the Applicant did lodge an earlier unfair dismissal application on 17 October 2018 (i.e. within the 21 day timeframe), but that he filed a notice of discontinuance on 9 November 2018. I address this factual circumstances more detail below.
The jurisdictional objection
[6] On 20 December 2018 the Respondent objected to the Commission exercising jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect. The Respondent contended that “there are no exceptional circumstances in the context of the present matter that warrant affording Mr Prasad a further period of time to the application to be made.” The Respondent further contended that,
“The Applicant was not dismissed
7. The cessation of Mr Prasad’s employment by the Respondent was a product of a mutual agreement between Mr Prasad and the Respondent to separate.
8. Accordingly, the Employer contends that Mr Prasad was not dismissed by the Respondent.
Other-the Applicant has failed to discontinue his application after a settlement agreement has been concluded
9. Two settlement agreements have been reached between Mr Prasad and the Employer in relation to the cessation of his employment by the Employer.
a) The agreement referenced at paragraph [7] above; and
b) On 9 November 2018, a settlement agreement was reached between Mr Prasad and the Employer in relation to an earlier application for an unfair dismissal remedy made by him (U2018/10736). Both parties to the agreement have executed their obligations under that agreement. The Respondent refutes the proposition that it has “not fully complied” with the settlement agreement.
10. Accordingly, the Respondent contends that Mr Prasad’s application should be dismissed by the Commission pursuant to section 399A(1)(c) of the Fair Work Act 2009, on the basis that Mr Prasad has failed to discontinue the application after two settlement agreements have been reached and concluded.”
[7] On 14 February 2019 I issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection and programmed the matter for hearing on 22 February 2019.
[8] The Applicant did not file any materials in compliance with the Directions.
[9] The Respondent filed submissions (Exhibit R1) in compliance with the Directions.
[10] On 22 February 2019 the matter was listed for an extension of time hearing. The Applicant represented himself. The Respondent was represented by Ms Ruchi Bhatt, Senior Advisor – Workplace Relations, Australian Industry Group.
Legislative scheme
[11] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[12] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:
[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. 4
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
[13] It is not contested that there were 55 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission. It was 34 days late.
[14] In its written submissions the Respondent contended that,
22. The only explanation provided by the Applicant for the delay in filing the Application is the following statement contained in the F2 application form:
“Initially I lodge an application on 15th of October 2018 , U2018/10736. I was ask by the respondent to withdraw the application on conditions that they will provide me with extra documents and reports which respondent did not fully complied to.”
23. As at the time of preparing these submissions, no other reason (or reasons) for the delay have been proffered by the Applicant. As a result, these written submissions are necessarily limited to the above response contained in the F2 application form. If the Applicant seeks to advance additional reasons for the delay in filing the Application, either in any material files or during the hearing, the Respondent may seek to make the relevant application at the time in order to ensure that it is afforded an opportunity to properly respond to any such contentions, including by calling witness evidence, if necessary.
24. For the purposes of this submission, the Respondent advances the following four contentions in relation to the Applicant’s asserted reason for the delay.
25. Firstly, the Applicant has misstated the terms of the settlement agreement reached. The Respondent did not agree to provide the Applicant with “extra documents and reports”. Rather, the Respondent agreed to provide:
(a) A written statement of service that identifies the duties that the Applicant undertook in his role when employed by the Respondent; and
(b) A written update about the progress of the Respondent’s investigation into complaints that he had made about other employees of the Respondent.
(collectively, Agreed Documents)
26. Secondly, the Respondent disputes any assertion that it did not “fully comply” with the terms of the settlement agreement reached between the Applicant and the Respondent. The Agreed Documents were provided to the Applicant by the Respondent’s representatives via email on 13 November 2018. A copy of the email correspondence and the Agreed Documents is attached at Annexure A.
27. The Respondent here notes that the Applicant waited a further 20 days (i.e. almost three weeks) after the Agreed Documents were provided to him, before he filed the Application. No explanation as to this further delay has been provided by the Applicant. This further weighs against the Commission exercising its discretion to allow a further period of time.
28. Thirdly, in any event, for present purposes it is not necessary to establish (in an evidentiary or factual sense) the precise terms of the settlement agreement or whether the Respondent did or did not “comply” with the terms of the agreement. This is because the Applicant has not established that any such non-compliance is relevant to this matter.
29. Further, to the extent that the Applicant asserts that the Respondent did not comply with the terms of the settlement agreement, a further application for an unfair dismissal remedy is not the appropriate forum or remedy to address that grievance. A party’s compliance or alleged non-compliance with the terms of a settlement agreement is a matter for the relevant Court(s) of competent jurisdiction.
30. Further, there are strong public interest considerations that weigh against the Commission exercising its discretion to grant an applicant the additional period of time necessary to file a subsequent unfair dismissal application where the applicant asserts that the terms of settlement in relation to a prior application have not been complied with. Respondent employers would clearly be prejudiced if they were to face multiple unfair dismissal applications filed by an applicant on the basis of an assertion (particularly where that assertion is unfounded, as is here the case) that they had not complied with an earlier settlement agreement. It is unfair and unjust that an Applicant be granted an extension of time to file a second application for an unfair dismissal remedy in such circumstances.
31. The grant of an extension of time in such circumstances is either:
(a) Of no utility to the extent that an applicant seeks to enforce the terms of a settlement agreement, as the Commission does not have jurisdiction to deal with such matters.
(b) An inappropriate use of the Commission’s resources and prejudicial to an employer in circumstances where an applicant simply seeks to re-litigate the matter to secure a better or different outcome; as appears to be the case in this instance.
32. The grant of an extension of time in such circumstances also undermines the purpose and utility of the statutory timeframe imposed by section 394(3)(2)(a), which is in part to ensure that employers are afforded some certainty as to the claims that they face after the termination of an employee’s employment. The grant of an extension of time to the Applicant in this case will further preclude the Respondent from having any certainty in relation to this matter, which the Applicant first initiated in October 2018.
33. In addition, section 399A(1)(c) and section 587(1) of the FW Act grant the Commission power to dismiss an application for an unfair dismissal remedy where:
(a) The application is vexatious; 5 or
(b) The Commission is satisfied that the applicant has unreasonably failed to discontinue the application after a settlement agreement has been concluded. 6
34. The exercise of the Commission’s discretion under section 394(3) to grant further time in circumstances such as these, where the Application is vexatious and where the Applicant has unreasonably failed to discontinue his Application after a settlement agreement has been concluded, would undermine the legislative purpose and intent of the aforementioned legislative provisions.
35. In light of the nature of the Directions, which specifically direct the parties to file submissions in relation to the question of whether an extension of time should be afforded to the Applicant, the Respondent has not made a relevant application or directed its submissions specifically at the issue of whether the Application should be dismissed pursuant to section 399A(1)(c) and/or section 587(1). If the Commission determines, despite our submissions, that the Applicant is to be granted a further period of time pursuant to section 394(3), the Respondent reserves its right to seek that the Application be dismissed on one or both of the above bases.
36. The reasons for the delay to not present any circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances are not “exceptional”. This is a matter that has come before the Commission by virtue of the simple fact that the Applicant elected to withdraw the First Application as part of a settlement agreement and consequently formed the view that either the Respondent has not complied with the terms of the agreement or that the Applicant is frustrated with the outcome of the First Application and therefore, seeks to ‘have another go’. The filing of a second unfair dismissal application in either of the above circumstances, on one view, constitutes an abuse of process and should not be allowed by the Commission.
[15] As has already been observed the only written submission made by the Applicant was contained in his F2 Application (see above). Notwithstanding his non-compliance with the Directions I issued for the filing of materials, in fairness to him as a self-represented litigant, I provided him with a further opportunity to explain the delay during the extension of time hearing on 22 February 2019.
[16] I observed that:
a) the Applicant had filed his initial unfair dismissal application;
b) he discontinued it on 9 November 2018,
c) on 13 November 2018 the Applicant seems to have been provided with the documents that the Respondent was to provide him with (Attachment A to R1).
d) it was not for another 20 days that he lodge the present application.
[17] I explored this delay with the Applicant. The following exchange 7 occurred,
THE COMMISSIONER: I note that you filed a notice of discontinuance on 11 November and then I note also that the respondent provided you with a statement of service on 13 November and also wrote to you in relation to the investigations and indicated they had been completed and closed. So it seems to me that they did do what they promised they would do.
MR PRASAD: That is basically half of it, what they provided me with the investigation report which (indistinct) said that it's complete. When I was investigated I went through all the stages, everything like I have been given a letter that called for me to attend everything - - -
THE COMMISSIONER: Mr Prasad, I'm not dealing with the substantive issue of the investigation or anything like that. What I'm only dealing with is the extension of time hearing. It seems to me that the employer relationship ended on 9 October. You filed this application on 3 December which is 55 days afterwards, which means your application is 34 days late. What I'm trying to understand is why [you] were … late?
MR PRASAD: Okay - I did file it in time. Then I was called by the company lawyers and all a couple of times to withdraw it or they would take legal action. I said okay, "I will withdraw the case if you supply me with this documentation and for (indistinct) employment and the investigation update", which I - - -
THE COMMISSIONER: Yes, they did both of things on 13 November. I've got copies of them here.
MR PRASAD: Yes, but that is a letter saying that the investigation has been completed. I (indistinct) I was not called in to interview what my allegations and everything were.
THE COMMISSIONER: Yes, well, Mr Prasad, if you say that there was an agreement done that in exchange for you filing a notice of discontinuance they were going to do certain things, and then they didn't do certain things, then you should be suing on that agreement. You should be commencing a proceeding saying they breached that agreement.
MR PRASAD: That's why I lodged it again.
THE COMMISSIONER: No, well, lodging an unfair dismissal case is not you saying - that is not you commencing a proceeding in breach of the settlement agreement. But in any case, you get these letters on 13 November and then you don't file your application till 3 December so what explains that delay?
MR PRASAD: I was away from the country.
THE COMMISSIONER: You went on holiday or something, did you?
MR PRASAD: No, I had the family emergency.
[short adjournment]
THE COMMISSIONER: Sorry about that - so just coming back, Mr Prasad, was there anything else you wanted to say in relation to the reason for the delay?
MR PRASAD: I just wanted to correct my statement. I had to go abroad. It was pre-planned. I had to attend a wedding so I left the country. That's what I did. That is why I didn't lodge it straight away.
THE COMMISSIONER: Right, well, in circumstances where you preferred to go to a wedding rather than file your unfair dismissal application, how do you say that that is an exceptional circumstance?
MR PRASAD: Well, it was all pre-planned and at that time everything I received from (indistinct) from 13 November.
THE COMMISSIONER: Yes.
MR PRASAD: So when I came back then I straight away filed with - lodged the application again.
[18] Addressing each of the reasons for delay, when advanced by the Applicant I am not satisfied that any of them are exceptional (either alone or considered in combination) for the following reasons:
a) The Respondent breached the terms of the agreement reached on 9 November 2018 - this does not give rise to an exceptional circumstance. Is not out of the ordinary course, or unusual, or special or uncommon that there might be an alleged breach of the settlement agreement. In any case the remedy for such a breach is the commencement of proceeding to enforce the agreement.
b) Attendance overseas - As can be observed from the exchange between me and the Applicant, the reason for delay between when he received correspondence from the Respondent on 13 November 2018 (that being when the Respondent complied with the agreement reached on 9 November 2018) and when he filed the present unfair dismissal application on 3 December 2018 he was in attendance overseas. Initially the Applicant described the reason as a “family emergency closed quotes, but then explained that it was to attend a pre-planned wedding. Weddings (even when conducted overseas) are not uncommon. Rather, they are normally encountered.
[19] I am not satisfied that any of the reasons for delay advance by the Applicant are exceptional.
[20] Therefore, this factor weighs against granting the Applicant a further period to make his application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[21] It is uncontested that the Applicant first became aware of the cessation of his employment on 8 October 2018.
[22] Therefore, this factor weighs against granting the Applicant a further period to make his application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[23] The Applicant filed an initial unfair dismissal application within time. He then discontinued that application on 9 November 2018. As I’ve stated above, to the extent that the Applicant is of the view that the Respondent is in breach of the agreement reached between them on 9 November 2018 his remedy is to seek to enforce that agreement. Non-compliance with an agreement does not entitle him to re-enliven his unfair dismissal application.
[24] The action taken by the Applicant to dispute the dismissal, which he chose to discontinue, weighs against granting the Applicant a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay
[25] In Respondent submitted that,
“40. The Respondent will be prejudiced if the Applicant is granted an extension of time.
41. Firstly, the Respondent will be required to expend further time and costs to defend the Application. It is relevant that the Respondent has already spent substantial time and incurred legal fees for the purposes of endeavoring to settle the First Application and the current Application. It is unfair that the Respondent is put to the task of continuing to defend the Application in light of the Applicant’s vexatious conduct.
42. Secondly, more than four months have passed since the date on which the Applicant’s employment came to an end. To the extent that the passage of further time impacts upon the ability of the relevant personnel of the Respondent who were associated with the cessation of the Applicant’s employment by the Respondent to recall the details of the relevant events leading to and resulting in the termination of the Applicant’s employment, this would cause further prejudice to the Respondent.
43. Thirdly, the Respondent will continue to face uncertainty, as explained earlier.
44. This factor weights strongly against the grant of an extension of time.
[26] Having considered the submissions of the Respondent I am not satisfied that the Respondent will experience any exceptional prejudice other than the usual prejudice associated with delay. Four months is not so long as to affect the recollection of relevant witnesses.
[27] The prejudice asserted by the Respondent weighs is a neutral factor in relation to granting the Applicant a further period to make his application.
Paragraph 394(3)(e) - The merits of the application
[28] In the matter of Kornicki v Telstra-Network Technology Group 8the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 9
[29] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[30] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[31] The substantive factual contest between the Applicant and the Respondent is whether the factual circumstances give rise to a dismissal and whether there was a compromise of the earlier unfair dismissal claim. These are not disputes that can be resolved at a jurisdictional hearing.
[32] Before me the Applicant submitted 10 that,
MR PRASAD: Unfair it was indeed. I wasn't given opportunity to defend myself. Every time I did this I was given a time frame which I could not get legal action or anything. There is worst case that happened in that area which was already known by the managers and all that were not looked at, that were overlooked. I was even sexually - my sexuality was even questioned. When I approached the HR and my manager and said, "This is what my team leader has addressed me as", nothing happened. So there is a lot of allegations that I tried to prove them and give them evidence over anything. They did not agree to it, no. They would completely say no.
I even sent the HR manager a couple of emails as my evidence. She didn't want the allegations. This is three of the emails, I've got it in writing here, right? They make about 10 or 11 allegations. I prove three in half an hour and then I wasn't given time to go to my emails. I was asked to pack and leave. They said, "You swore at a customer." I asked, "Which customer made a complaint?" That wasn't given and here we have got another person sitting right next to the manager swearing from morning to afternoon at the customers, using some vulgar language, nothing happened to her.
I have even been racially abused there by the employees. I mention that to the HR manager that this is happening. I don't think this is right, "You better to talk to the guys" - nothing happened. I have been called, "black cunt." I have been called, "bloody (indistinct)" - everything.
THE COMMISSIONER: Yes, anything further about the merits of the matter?
MR PRASAD: That was not (indistinct) why that I was put into a corner, bullied (indistinct) when other people would do it, right, even the customers here on the phone, who is swearing next to you? The managers hear, they laugh it off. The whole office people are doing that and with me, if I can say one thing - if I did swear, I was friendly with one of the staff. I have a few close mates up there. We would swear at each other but never, ever swear at anyone else or any customer. So the allegations made against me, they are totally untrue. If they had done an investigation of me, with the employee (indistinct) and got involved with everything, (indistinct) before I was terminated, where is the evidence that they followed the company policy and procedure, investigating my complaint?
This is what was agreed by the HR manager - "If you terminate on the basis of the (indistinct)", he said, "If you sign this, we will call you for interview when we investigate your complaint." Up to today, that has never happened.
THE COMMISSIONER: Anything further?
MR PRASAD: I need to know if I made a complaint why wasn't it investigated? I was racially abused. That wasn't investigated. I was - my sexuality was questioned in front of everyone in the team. That wasn't investigated. Nothing happened all after six, seven months when I pushed again. All they said was, "Sorry." The company followed every procedure when they tried to corner me and terminate me - suspension letter, go home, you are suspended, you are called in, all the letters, I've got all those letters, all right? "You come in, another investigation with investigation done by Employsure."
What happened to the complaints that I made? Where is the evidence, where is the report? Who investigated that? Who investigated that?
[33] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance. However, I would observe that, to the extent there is some merit or substance it is not strong. The purported settlement on 9 November 2018 would likely be an impediment to the matter continuing.
[34] However, if the Applicant can establish to the satisfaction of the Commission that the Respondent’s actions caused the cessation of the employment or were likely to result in the same (i.e. that there was a dismissal at the initiative of the employer) and that, further the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[35] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[36] I was not directed to a person employed by the Respondent in a similar position. Consequently, I am not satisfied that this is a relevant factor.
Conclusion
[37] When the s.394(3) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Rather, the circumstances are regularly, or routinely, or normally encountered. Consequently, they are not exceptional circumstances.
[38] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
[39] An Order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr R Prasad, for himself.
Ms R Bhatt, from the Australian Industry Group for the Respondent.
Hearing details:
2019.
22 February.
Sydney/Melbourne.
Printed by authority of the Commonwealth Government Printer
<PR705574>
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) FW Act.
3 [2011] 203 IR 1.
4 Ibid [13].
5 Section 587(1)(b) of the FW Act.
6 Section 399A(1)(c) of the FW Act.
7 Transcript PN8 – PN25
8 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
9 Ibid.
10 Transcript PN47 - 55
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