Selinda Meringnage v BAE Systems Australia Defence Pty Ltd

[2014] FWC 4472

[2014] FWC 4472

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Selinda Meringnage
v
BAE Systems Australia Defence Pty Ltd
(U2014/7578)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 JULY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 4 July 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 27 May 2014 Mr Meringnage lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with BAE Systems Australia Pty Ltd

[3] In that application, Mr Meringnage advised that his dismissal took effect on 22 November 2013. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“The BAE Systems was disclosed the reason for made me redandend based on the Individual employee assessment prepaired by Production Supervisor, at the time of general protection claim hearing on 31/01/2014 fairwork commission. The day, I was found that I was discriminated based on my race, disability and victimization by the company supervisor, company superintendent and the BAE Systems. I belive, in this matter, they breach my rights on fairwork act, equal opportunity act 2010 and human rights act Australia.” 1 (sic)

[4] The application was referred to me for consideration. On 5 June 2014 I advised the parties that the extension of time issue would be considered through a telephone conference on 4 July 2014. The parties were provided with substantial background information relative to the application and extension of time issue. Mr Meringnage was required to provide a witness statement and a copy of any document relied upon, by 27 June 2014.

[5] Despite a request to this effect, no Employer’s Response (Form F3) to the application has been received. I note that, on 11 June 2014 the respondent forwarded an email to my office expressing concern that Mr Meringnage had a current General Protections application. My Associate referred the respondent to ss.725-733 of the FW Act but advised that she was unable to provide advice in this respect. Further, on 1 July 2014 the FWC received a copy of correspondence sent on behalf of the respondent to Mr Meringnage which referred to the multiple applications made by him and sought confirmation from him about which matter he sought to pursue.

[6] Mr Meringnage provided a substantial quantity of material to the Fair Work Commission (FWC) and to the respondent.

[7] A sound file record of the 4 July 2014 conference was kept. Mr Meringnage participated in this conference. BAE was represented by Mr Hillier as its Acting Head of HR, Maritime.

[8] My decision on the extension of time issue was made on the material before me.

[9] At the commencement of the conference the parties both agreed that Mr Meringnage was employed by BAE Systems Australia Defence Pty Ltd (BAE). The parties consented to my use of the discretion in s.586 of the FW Act to amend the application so as to correctly identify the employer.

[10] The information before me discloses that Mr Meringnage was employed by BAE from October 2009. Over the period of his employment he apparently had a number of injuries and differences with BAE. Mr Meringnage referred at least one of these differences to the Victorian Equal Opportunity & Human Rights Commission. Following various discussions with him BAE provided formal advice to Mr Meringnage to the effect that he was redundant from 22 November 2013.

[11] In December 2013 Mr Meringnage lodged a General Protections claim which was the subject of a s.368 conference with Commissioner Wilson on 30 January 2014. This application was not resolved at this conference and a Certificate was issued pursuant to s.369 on 10 February 2014. Mr Meringnage has confirmed that he has not discontinued that application. Mr Meringnage also confirmed that he was pursuing outstanding applications in the Victorian Civil and Administrative Tribunal relative to the termination of his employment.

[12] Mr Meringnage waited until 27 May 2014 to lodge this application. He advised that the reason for this delay was, primarily that he became aware, in May 2014 of BAE job advertisements for positions which he considered he could fulfil. Secondly, he advised that, notwithstanding his commencement of other proceedings, he was unsure about the exact identity of the employer.

[13] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[14] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[15] In terms of s.394(2) the application was made outside of the specified 21 day time limit. It was lodged some 165 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Meringnage's circumstances can be regarded as exceptional for the purposes of this subsection.

[16] The information Mr Meringnage has provided does not adequately explain why the application could not have been lodged within time. Neither of the explanations for the delay advanced by Mr Meringnage represents an acceptable reason for this very late lodgement of the application.

[17] I am satisfied that Mr Meringnage was made aware of the termination of employment decision on 22 November 2013 which I have taken as the date that termination of employment took effect.

[18] It is clear that Mr Meringnage challenged the termination of his employment through his General Protections application. Sections 725, 727 and 728 state:

“725 General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

...

727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.

728 General protections court applications

This section applies if:

(a) a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.”

[19] Mr Meringnage advises that he has not yet further pursued his General Protections application. He has confirmed that he has not withdrawn that application, nor that it has failed for want of jurisdiction. Accordingly, I have significant doubts that Mr Meringnage is able to make this s.394 application in any event.

[20] Mr Meringnage appears to argue that the other applications he is pursuing before the Victorian Civil and Administrative Tribunal are taken against another corporate entity. The information before me does not enable a conclusion in this respect and I have not taken those applications into account in reaching a conclusion in this matter.

[21] I have concluded that the granting of an extension of time would most likely prejudice the respondent in this matter but my decision to refuse an extension of time is not based on this factor.

[22] In terms of the merits of the application, s.385 establishes that Mr Meringnage's dismissal cannot be unfair if it was a case of genuine redundancy. Section 389 gives meaning to Genuine Redundancy in the following terms:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[23] Mr Meringnage appears to assert that his redundancy was not genuine because BAE sought to employ persons some months after the termination of his employment, in jobs he could have done, or be trained to do. The information before me does not give rise to any question about the extent to which the termination of his employment was a genuine redundancy. Nevertheless, I have regarded the merits of Mr Meringnage's application as a neutral consideration relative to the extension of time issue.

[24] Further, to the extent that Mr Meringnage’s General Protections application remains current, I consider that he is excluded from being able to pursue this application pursuant to Subdivision B of Division 3 of Part 6-1 of the FW Act.

[25] Considerations of fairness relative to persons in similar circumstances to Mr Meringnage's do not support an extension of time.

Conclusion

[26] For the reasons I have set out above, Mr Meringnage's circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). Further, I have concluded that it is likely that Mr Meringnage is excluded from making this application. The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR552771) reflecting this decision will be issued.

[27] I take this opportunity to confirm to Mr Meringnage my concern that he is at serious risk of incurring costs as a consequence of his pursuit of matters without proper foundation. My recommendation to him is that he takes some care to ensure that any further litigation has proper foundations.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

S Meringnage on his own behalf.

L Hillier representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

July 4

 1   Form F2, para 1.4

Printed by authority of the Commonwealth Government Printer

<Price code C, PR552770>