Shivendra Singh v Technological Resources Pty Limited T/A Rio Tinto

[2015] FWC 8426

[2015] FWC 8426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shivendra Singh
v
Technological Resources Pty Limited T/A Rio Tinto
(U2015/12451)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Shivendra Singh alleged that the termination of his employment by Technological Resources Pty Ltd trading as Rio Tinto was unfair.

[2] Mr Singh stated that his dismissal took effect on 3 October 2015 and Rio submitted that it took effect on 2 October 2015.

[3] On 28 May 2015 Mr Singh was advised that his position was redundant and unless he was able to be redeployed, his last date of employment would be 21 June 2015. Mr Singh asked Rio to extend that time so as to assist him with his application for residency. Rio agreed to this request and on 15 June 2015, he was provided with a letter which advised him that an extension had been approved and that he would be reporting to Ms Talmage the team leader of small projects. He was advised that he was able to “source suitable employment options up until [his] final date of employment, however if a suitable redeployment position cannot be finalized within this period [his] employment will terminate on 2 October 2015.”

[4] On 1 September 2015 Mr Singh was advised that he was not required to work out his final month but he would remain employed until 2 October 2015.

[5] Mr Singh did not dispute that his last day of employment was 2 October 2015 however he thought that as a consequence his dismissal did not take effect until the 3 October 2015.

[6] I am satisfied that the date Mr Singh’s dismissal took effect was 2 October 2015. That was the date he was advised his employment would end and that is the date it did end.

[7] As a consequence, Mr Singh’s unfair dismissal application lodged on 26 October 2015 was not made within 21 days of the date of the dismissal.

[8] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

[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." [Endnotes not reproduced]

(a) the reason for the delay;

[10] Mr Singh gave evidence that he had been unwell since all this started and this had affected his ability to manage his daily work. Mr Singh provided a medical certificate dated 30 October 2015, which advised that his condition which he has suffered since his dismissal affected his ability to manage his affairs. Mr Singh provided evidence that had attended this practitioner on 18 September 2015 and had attended the Employee Assistance Counselor on 28 August 2015 and 8 September 2015.

[11] Mr Singh had been advised that if he relied upon a medical condition to support his application for an extension of time his medical report or certificate should explain how his medical condition prevented him from making the application in time.

[12] Mr Singh’s medical report was dated after he had filed his application. It does not explain why his medical condition prevented him from lodging his application in time as his medical condition did not prevent him from lodging his application on 26 October 2015.

[13] I am not satisfied that Mr Singh has provided a reasonable explanation for the delay in lodging his application. This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[14] Mr Singh had been aware from 15 June 2015 that his employment was to come to an end on 2 October 2015. He was further advised on 1 September 2015, when he was told he was no longer required to attend work, that his employment would end on 2 October 2015. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[15] Mr Singh submitted that he asked for the reasons for his dismissal as he did not agree that there was no work and funding for his position. Rio submitted that Mr Singh did not dispute the decision to make his position redundant. I am not satisfied that asking for reasons for the dismissal constitutes disputing the dismissal. There is no evidence that Mr Singh did anything more than ask for reasons. There is no evidence that he advised Rio that he did not accept the answer he received. I consider this criterion to be neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[16] Rio submitted that it would be prejudiced as it would be required to expend significant time and expenses defending the application. No evidence was called to support this submission. Mr Singh submitted that there would be no prejudice to Rio. I am not satisfied that any prejudice to Rio is such as to weigh against a finding of exceptional circumstances. I consider that this criterion to be neutral.

(e) the merits of the application;

[17] Mr Singh’s position was declared redundant. Mr Singh did not contest this decision. Further Mr Singh did not dispute the reasons given for the change to the date of his dismissal.

[18] Mr Singh complained of events that occurred when he was transferred to the small projects team and when he was directed to relocate.

[19] Mr Considine gave evidence that the position Mr Singh had been redeployed to was not funded and it was decided not to continue with the project. Mr Singh was on notice that once the work ended the redundancy would take effect. That evidence is consistent with the email sent by Mr Considine on 24 August 2015, when he advised Mr Singh of his new work assignment and advised him that there was no option to extend beyond 2 October 2015.

[20] Mr Singh contended that the work might have lasted another 4 months. Mr Considine gave evidence that once Mr Singh stopped working so did work on the project as it was not funded. He said no work had been performed on the project since that time.

[21] Rio argued that Mr Singh’s dismissal was due to a genuine redundancy. Though not clearly articulated Mr Singh appears to dispute this as he contends that he could have been redeployed for a least a further 4 months.

[22] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[23] Rio submitted that granting an extension of time in these circumstances would encourage late applications in circumstances where the person has failed to ascertain their rights prior to deciding to lodge the application. Mr Singh made no submissions on this criterion. Rio provided no evidence to support this submission. I consider this criterion to be neutral.

Conclusion

[24] I am not satisfied that there are exceptional circumstances. While I do not dispute that Mr Singh has been unwell he has not provided sufficient evidence to explain why his condition prevented him from lodging his application. None of the criteria considered support a finding of exceptional circumstances and hence Mr Singh’s application for an extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

S Singh on his own behalf

P Swingler for the Respondent

Hearing details:

2015.

Melbourne by telephone.

December 3.

 1   [2011] FWAFB 975.

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