Tony Abdallah v Toll Global Logistics T/A Toll Transport Pty Ltd

[2021] FWC 2892

[2021] FWC 2892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony Abdallah
v
Toll Global Logistics T/A Toll Transport Pty Ltd
(U2021/3260)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 24 MAY 2021

Application for an unfair dismissal remedy – application made out of time – whether there are exceptional circumstances – whether discretion to extend should be exercised – extension of time refused – application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 14 May 2021. Mr Tony Abdallah (Applicant) was employed by Toll Transport Pty Ltd until his dismissal, which took effect on 19 March 2021. On 17 April 2021, the Applicant made an application under s.394 of the Fair Work Act (Act) seeking a remedy in connection with his dismissal which he alleges was unfair.

[2] The application was lodged outside of the time prescribed in s.394(2) of the Act which states that an application is to be lodged within 21 days from the date of the dismissal or the date on which the dismissal took effect. Consequently, Mr Abdallah’s application was eight days late. It is therefore necessary for me to consider whether Mr Abdallah should be allowed a further period within which he would be permitted to lodge his application.

[3] The Act allows the Commission to extend the period in which an unfair dismissal remedy application may be made, but only if the Commission is satisfied that there are exceptional circumstances, taking into account the various matters that are set out in s.394(3).

[4] Briefly, exceptional circumstances are circumstances that are out of the ordinary course or unusual or special or uncommon but the circumstances themselves need not be unique nor unprecedented, nor even vary rare. Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which although individually are not of any particular significance when taken together, may be considered exceptional.

[5] The requirement that there be exceptional circumstances before an extension of time is granted contrasts with other provisions in the Act which provide a broad discretion to the Commission to extend time, for example, in connection with the lodgement of enterprise agreements outside of the time where the power to extend time is exercisable simply if the Commission considers that it would be fair to do so.

[6] Section 394 requires the Commission to take into account a number of matters in deciding whether it is satisfied that there are exceptional circumstances. These factors are set out in s.394(3) as follows:

“(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.”

[7] I am required to take each of these matters into account and to give each appropriate weight having regard to the evidence.

[8] I turn then to the first consideration, which is the reason for the delay. This consideration is concerned with the period after the 21-day period expires and not the whole of the period between the dismissal and the application lodgement date.

[9] The Applicant contends that the reason for the delay or the explanation for the delay is because he became aware of certain matters after his dismissal took effect. The Applicant gave evidence that he became aware that his duties were distributed amongst particular staff, about which he was not aware before his dismissal and that he became aware of an opportunity advertised for a financial business partner in Perth, a position for which he was not given opportunity to apply and into which he might have otherwise been redeployed.

[10] I do not find either explanation as being particularly compelling or as providing an acceptable explanation for the delay for the following reasons.

[11] In relation to the distribution of duties, it was clear from the Applicant's evidence that by the time that he sent an email on 5 April 2021 to his employer outlining his concerns about the way in which he had been treated in connection with the reorganisation, he was aware that the particular duties had been reassigned in the manner about which he now complains. At that time, the Applicant’s evidence was that he was also aware that he was required to lodge an unfair dismissal remedy application within 21 calendar days after the date of his dismissal and he was aware, as at 5 April, given that his dismissal took effect on 19 March, that he still had time to lodge his application within the time prescribed.

[12] As to the additional role about which the Applicant became aware, the evidence discloses that that is a maternity leave replacement position. Further, it is difficult to align the Applicant’s concern now about an opportunity to be redeployed into that position in circumstances where during his employment, when he was given the option of being part of the redeployment process, he opted out of that process in correspondence on 12 March 2021.

[13] In those circumstances I do not consider that the Applicant has provided an acceptable explanation for the whole of the period of the delay and consequently I consider that this matter weighs against the Applicant.

[14] Turning next to the question of whether the Applicant was made aware of his dismissal after it took effect, it is uncontroversial that he was given a letter on 19 March 2021 confirming his dismissal would take effect on 19 March 2021. The Applicant was therefore advised of his dismissal on the date it took effect. On the same day he agreed to accept an additional amount of redundancy pay in excess of the statutory entitlement for which the NES provides, in return for releasing the company from any claims, amongst other things, in relation to the termination of his employment. That he became aware of his dismissal at least at the time it took effect and no later means that he had the benefit of the full period of the 21 days in which to lodge his application. In those circumstances, I consider this factor also weighs against the Applicant.

[15] As to any action that the Applicant took to dispute his dismissal, firstly, the Applicant contends in his statement that he did not take any action in relation to the dismissal. Secondly, although he did complain about his treatment in an email to the company on 5 April 2021, I accept the Respondent's submission that he did not contest his dismissal in that email. In those circumstances, I accept that there was no action taken by the Applicant to contest his dismissal and consequently this consideration also weighs against the Applicant.

[16] As to prejudice, the Respondent does not make a submission about this consideration. It must be accepted that given the short period which amounts to the delay the Respondent is unlikely to suffer any particular prejudice beyond the normal prejudice that is associated with defending a cause of action. The absence of prejudice in the circumstances weighs in the Applicant's favour.

[17] As to the merits, it seems to me that the Applicant faces a number of difficulties in relation to his application.

[18] The first difficulty is that it is apparent to me on the face of the material that his dismissal was prima facie a case of genuine redundancy within the meaning of the Act. That is, First, because the employer has taken the decision upon operational grounds that it no longer required the job performed by Mr Abdallah to be performed by anybody. As a consequence of the restructure undertaken by the employer, it redistributed the duties which comprised the role that he occupied to other employees. It did not employ, on the evidence, any additional employees and this is consistent with the notion of redundancy as set out in the Act. Secondly, because the Respondent was not required by any provision of an applicable award or enterprise agreement to consult Mr Abdallah about the redundancy and so considerations about whether it complied would not arise, although it says that it consulted the Applicant nonetheless. Thirdly, because it is the uncontroverted evidence that Mr Abdallah opted not to participate in a redeployment process. In those circumstances it could hardly be said that it was reasonable for Toll to have redeployed Mr Abdallah to another position. Given that, it is highly likely that there would be a conclusion that his dismissal was a case of a genuine redundancy within the meaning of the Act and the application would be dismissed for want of jurisdiction.

[19] The second difficulty concerns the Applicant's base income, which is also not contested. It is $154,530 per annum and is likely to exceed the jurisdictional limit in circumstances where the Applicant appears not be covered by an award or an agreement and consequently the application would likely be dismissed on that basis also.

[20] The third difficulty for Mr Abdallah is that he entered into a release agreement with Toll, which appears to be supported by consideration; that is, that Toll agreed to pay Mr Abdallah an additional amount of severance pay in excess of the amount it was required to pay under the National Employment Standards. Taken together, those factors render Mr Abdallah's merits application, to put it generously, very weak.

[21] As to fairness, neither party made a submission about this matter. This consideration is or may relate to matters that are currently before the Commission or matters that have previously been decided by the Commission. It may also relate to the position of various employees of the employer responding to unfair dismissal applications, but there is no evidence about any of that here and neither party directed me to any particular decision of the Commission which might be relevant in assessing this consideration. Consequently, this matter weighs neutrally.

[22] As should be apparent from my assessment, there is only one factor that weighs in the Applicant's favour; that is, the question of prejudice. The fairness consideration weighs neutrally and each of the other factors, delay, action taken and merits of the case, weigh against the Applicant.

[23] Significant weight is attached to the absence of an explanation for the delay and the very weak merits case. These matters outweigh in a significant fashion the only consideration that weighs in Mr Abdallah's favour.

[24] In those circumstances, I am more than satisfied that there are no exceptional circumstances warranting my consideration of whether I should exercise my discretion to allow a further period for Mr Abdallah to lodge his application.

[25] Consequently, the application, having been made out of time, and without an order extending time, was not made in accordance with the Act. It is therefore appropriate that I exercise my discretion to dismiss the application.

Order

[26] I order the application (U2021/3260) be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr T Abdallah on his own behalf
Ms C McCutcheon on behalf of the Respondent

Hearing details:

2021
Melbourne and Brisbane (via video link)
14 May

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