Riyen Vora v McDonald's Australia

[2018] FWC 831

[2018] FWC 831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Riyen Vora
v
McDonald’s Australia
(U2017/12745)

COMMISSIONER MCKENNA SYDNEY, 14 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] Riyen Vora (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which he seeks an unfair dismissal remedy. The applicant was formerly employed by McDonald’s Australia Limited (“the respondent”).

[2] Although the applicant originally indicated in his Form F2-Unfair dismissal application that he was notified of the dismissal on 31 October 2017, the respondent in its Form F3-Employer Response to Unfair Dismissal Application indicated that the applicant was notified of the dismissal on 4 September 2017 and the dismissal took effect that day. The application for an unfair dismissal remedy was lodged on 29 November 2017.

[3] The respondent declined to participate in conciliation, by telephone, before a Fair Work Commission conciliator. The matter was then allocated to the member who principally deals initially with out-of-time applications which are lodged in New South Wales. That member caused correspondence to be sent to the applicant dated 21 December 2017 concerning matters relevant to the late application, and relevantly seeking a response thereto. On 5 January 2018, the applicant provided his response – indicating, among other matters, that he had been advised of the dismissal on 4 September 2017 but emailed confirmation of the same was sent on 31 October 2017.

[4] On 10 January 2018, correspondence was sent to the applicant and respondent noting that as the applicant agreed that the effective date of dismissal was 4 September 2017 the matter would be allocated to me concerning extension of time. Following the allocation of the file to me, the matter was listed for conference and/or directions by telephone on 15 January 2018 and directions were issued that day concerning the filing and service of materials. The extension of time hearing proceeded, by telephone, on 1 February 2018.

[5] Section 394 of the Act provides 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 under s.394(3). That is, the Commission may allow a further period for the application to be made if the Commission is satisfied that there are exceptional circumstances, taking cumulatively into account: 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. I turn now to consider those matters.

The reason for the delay

[6] The applicant noted that he had been on workers’ compensation since 24 April 2017 for an injury caused in the same workplace, and submitted he had been bullied by managers on various occasions giving different excuses on trivial matters. He was given a letter concerning suspension on 23 August 2017 and asked to sign a termination letter on 4 September 2017. The applicant explained that although he was told he was dismissed on 4 September 2017 he received the email as to the termination of employment only after repeated requests to his (former) manager. The applicant then received confirmation by email on 31 October 2017.

[7] The applicant described himself as having been “quite shocked and depressed to have received the termination letter as this was my only job to support myself as an International Student”. The applicant added that he “had not been able to think straight for quite some time due to this shock.” Referring to other matters, the applicant submitted that as this dismissal happened close to his final semester, he had been concentrating on his studies and exams – being the most important thing for him at that time.

[8] The applicant indicated that it was only after an incident concerning another employee that he realised he had been unfairly and unjustly dismissed. That is, another employee was involved in “an exact same incident” on 13 September 2017 for which the applicant was dismissed, but that other employee was not suspended or dismissed.

[9] Drawing upon those matters, the applicant submitted it was due to initial shock and late realisation of his predicament that he was unable to file his application within time. There was no evidence that the applicant’s shock and depression were of a medical nature such as would have precluded the making of an unfair dismissal application; rather, the applicant turned his concentration to his final semester studies and exams because those matters were the most important at the time – as opposed to lodging an application. The applicant’s late realisation that another employee had engaged in the same conduct that he had engaged in, but had not been the subject of disciplinary action concerned conduct by the other employee which occurred on 13 September 2017.

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

[10] The applicant was aware the dismissal had taken effect on 4 September 2017, albeit his request for emailed confirmation was not provided until 31 October 2017. Regardless of whether the date of the dismissal was 31 October 2017 (as the applicant initially indicated, being the date of receipt of emailed confirmation) or 4 September 2017 (as the respondent contended and the applicant later agreed) the application was lodged out of time on 29 November 2017.

[11] The delay here is lengthy when considering that the applicant was aware the dismissal had been effected on 4 September 2017 (even allowing for the matter of the email not being sent to the applicant until 31 October 2017) and consideration of this criterion does not, thereby, weigh in support of the applicant being granted an extension.

Any action taken by the person to dispute the dismissal

[12] It appears the applicant did not take any action to dispute the dismissal prior to making this application. As the applicant noted, he was concentrating on his final semester studies and exams.

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

[13] The respondent submitted it would suffer additional prejudice if an extension of time were granted, as it would need to devote additional time and resources to defend the claim. The respondent also submitted there are managerial employees who are no longer working at the relevant restaurant that employed the applicant. This, it was submitted, causes a significant amount of prejudice to the employer due to increased difficulties in obtaining evidence and defending its position, particularly such a long period after the dismissal.

[14] The respondent noted that the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time; but also noted that: “The statutory framework and timeframes are designed to strike an effective balance between the rights of employers and employees. That is, they seek to balance one person’s right to bring an action, against another person’s right to know with certainty that questions about actions that they have taken will be agitated within a particular period.”

[15] Although the respondent is a large employer which might be considered to be well-equipped to deal with applications of this nature, the delay here is substantial and, as the respondent noted, one product of that is the creation of at least potential issues concerning staff turnover in relevant period as to responding to the application.

The merits of the application

[16] The applicant contends the dismissal was unfair, whereas the respondent denies the applicant was unfairly dismissed. The applicant was dismissed against the background of allegations that - contrary to workplace safety procedures and prompting by a crew trainer to do so – the applicant did not wear the required personal protective equipment while completing a particular task on 16 August 2017. On what little was before me as to the merits of the application, I cannot take this matter further and treat merits considerations as essentially neutral.

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

[17] The applicant submitted that he learned another employee engaged in the same conduct which led to his (the applicant’s) dismissal, but the other employee was not subject to disciplinary action including suspension or dismissal. The respondent does not admit to the allegation and in any event, the respondent’s submissions continued, it is not a “reason for the delay” or a relevant consideration in support of an application filed out of time. The respondent submitted that in this case there is no comparison or other person in a similar position.

[18] Once again, on what little was before me as to fairness as between the applicant and the other employee in a similar position, I cannot take this matter further and treat it as essentially neutral. But I would note that in circumstances where the incident concerning the other employee took place on 13 September 2017 it was still the case that the applicant did not lodge this application for an unfair dismissal remedy until 29 November 2017.

Conclusion

[19] The applicant’s reasons for the delay in this matter were addressed by him principally under paragraphs headed: “Shock and bewilderment”, “Similar circumstances”, “Studies and exams” and “Late realisation of Unfair Dismissal”. I have considered those matters, together with the other matters required to be considered in s.394(3) of the Act, in the context of what was advanced by the parties and authorities such as Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.

[20] The applicant has not set out circumstances that may be seen to be, in the context of cases which have considered similar matters, for example, out of the ordinary, unusual or uncommon. I am not satisfied that there are exceptional circumstances here so as to support an extension of time. As such, an order dismissing the application will issue in conjunction with this decision.

COMMISSIONER

Appearances:

R Vora on his own behalf

M Rofail from the respondent

Hearing details:

2018.

By telephone:

February 1.

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