Selim Pullu v Elite Smart Community Care Pty Ltd

[2021] FWC 2952

[2021] FWC 2952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Selim Pullu
v
Elite Smart Community Care Pty Ltd
(U2021/3227)

DEPUTY PRESIDENT COLMAN MELBOURNE, 21 MAY 2021

Unfair dismissal application filed out of time – application dismissed

[1] This decision concerns an application by Mr Selim Pullu for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Pullu’s employment with Elite Smart Community Care Pty Ltd (company) was terminated on and with effect from 19 March 2021. Mr Pullu was handed a letter stating that his employment was terminated with immediate effect due to his poor performance over the preceding three months. Section 394(2) of the Act states 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 pursuant to s 394(3). The period of 21 days ended at midnight on 9 April 2021. Mr Pullu’s application was lodged on 15 April 2021. In order for Mr Pullu’s application to proceed, he requires the Commission to grant a further period of time.

[2] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression expounded by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. I note that the requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is fair to do so.

[3] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: 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 will consider each of these matters as they pertain to Mr Pullu’s application.

[4] The Act does not specify what reasons for delay tell in favour of granting an extension of time however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. Mr Pullu said that he believed that the 21 day period was comprised of 21 business days, and that his application had therefore been lodged within the required time. I explained to Mr Pullu that his belief was in error. Mr Pullu then submitted that the reason for his delay was his mistaken belief about the counting of time. However, it is well established that a person’s unawareness of the legal requirement to lodge an application within 21 days is not an acceptable or reasonable explanation for the delay. I consider that the same is true for a mistaken belief about the correct approach to counting time. Information about the lodgement requirements is available on the Commission’s website. I do not consider that Mr Pullu has provided an acceptable or reasonable explanation for the delay. This weighs against an extension of time.

[5] The following three factors are in my view neutral considerations. First, Mr Pullu was notified of his dismissal on the same day that it took effect. Secondly, I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Pullu and other persons. And thirdly, there is no evidence of prejudice to the employer.

[6] I accept Mr Pullu’s evidence that he took some action to dispute the dismissal (aside from filing his application) by disputing its fairness on the day his employment was terminated. This consideration counts modestly in favour of an extension of time.

[7] As to the merits of the application, Mr Pullu said that on 5 March 2021 he was told that he had not been performing to the required level, and that he was suspended without pay. He said that during a meeting on 11 March 2021 he was asked to choose between a new part-time role and immediate dismissal, and that he agreed to work 3 days a week. On 19 March 2021 he was told that the chief executive officer was dissatisfied with his performance and that he would be dismissed. He was then given a letter dated 19 March 2021, which stated that his employment was terminated effective immediately. Mr Pullu said that he was not told why the company believed his performance was poor, and that he was given no opportunity to respond or improve his performance. He said that the human resources manager, Ms Semra Sakir, had told him that the reason for his dismissal was related to the fact that he had stood up to the CEO’s bullying of him. He also stated that he had raised concerns with the company about its use of clients’ funding. Mr Pullu noted that he had not received the two week payment referred to in the termination letter.

[8] Ms Sakir, who has since left the company, gave evidence that she did not believe Mr Pullu’s dismissal had been fair. She said that no proper procedures were followed, and that she was compelled by the CEO to dismiss Mr Pullu and had felt very uncomfortable about this. She believed that Mr Pullu had been bullied at work and that his unpaid suspension had been unlawful. She said that the company’s treatment of Mr Pullu was a factor in her decision to resign from the company four days after Mr Pullu’s dismissal.

[9] Ms Begam Kantara, the company’s director, denied that Mr Pullu had been subjected to bullying and any suggestion that the company had retaliated against him for raising complaints. She said that Mr Pullu was dismissed because of his poor performance, namely his lack of diligence and failure to follow up with clients, about which several clients had raised concerns. She said that Mr Pullu and Ms Sakir now both worked for a competitor and were trying to tarnish the company’s reputation. Ms Kantara said that after Mr Pullu had been dismissed, she discovered that he was attempting to lure clients away from the company, and for this reason decided not to make the 2 week payment referred to in the termination letter.

[10] The Act requires the Commission to determine whether to extend time before it considers the merits of the application (see s 396(a)), and an application to extend time is therefore in the nature of an interlocutory application. The merits of the present application turn on disputed points of evidence that would need to be tested if an extension of time were granted and the matter were to proceed. Much would depend on factual findings. On the limited material before me, I consider that Mr Pullu’s application is not without merit, and that this weighs in favour of an extension of time.

[11] However, having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Mr Pullu did not advance an acceptable or reasonable explanation for the delay. He misunderstood the 21 day filing requirement. This is not uncommon, despite the material that the Commission makes available to applicants on its website. Two of the considerations in s 394(3) weigh in favour of an extension, but they do not entail exceptional circumstances, nor are there any other exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. I decline to grant an extension of time under s 394(3). Mr Pullu’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

S. Pullu for himself

B. Kantara for Elite Smart Community Care Pty Ltd

Hearing details:

2021

Melbourne

21 May

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