Adnan Pal v Wsa Co Limited [2024] FWC 2106

1 Fair Work Act 2009 s.394—Unfair dismissal Adnan Pal v Wsa Co Limited (U2024/7079) COMMISSIONER CRAWFORD SYDNEY, 8 AUGUST 2024 Unfair dismissal application filed out of time – no satisfactory reason for delay – merits weigh against an extension - no exceptional circumstances – application dismissed Background [1] Adnan Pal (Mr Pal) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he was unfairly dismissed by WSA Co Ltd (WSA). [2] The WSA initials represent Western Sydney Airport, which is currently being constructed at Badgerys Creek. Mr Pal commenced working for WSA on 10 October 2022 as a Technology Risk Manager. Mr Pal was employed under a maximum term contract which had an outer limit of 19 December 2025. [3] Mr Pal was dismissed effective 14 May 2024. WSA indicated the project had reached a point that Mr Pal’s role was no longer required. Mr Pal was paid for four weeks in lieu of notice as required by his contract. [4] Mr Pal filed a Form F2 unfair dismissal application on 19 June 2024. [5] WSA filed a Form F3 employer response on 1 July 2024. WSA raised two jurisdictional objections to Mr Pal’s application. Firstly, WSA submitted that Mr Pal’s application was not filed within 21 days of his dismissal taking effect. Secondly, WSA submitted that Mr Pal was not a person protected from unfair dismissal because his employment was not covered by a modern award or enterprise agreement, and Mr Pal earned above the high income threshold. [6] I issued directions for the filing of material regarding whether Mr Pal should be granted an extension of time to file his application and listed a determinative conference/hearing regarding that issue for 2 August 2024 via video. [2024] FWC 2106 DECISION -- 1 of 9 -- [2024] FWC 2106 2 [7] Mr Pal represented himself at the determinative conference/hearing on 2 August 2024. WSA was represented by Steven Van Der Donk (Chief Legal Officer) and Kirby Grattan (Chief People Officer). [8] At the start of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference so I could take a more active role in gathering evidence from the parties. There was no opposition to this. I conducted the proceeding as a determinative conference. Material filed Mr Pal [9] Mr Pal relied on the following evidence in support of his request for an extension of time: • Form F2 application. Given the absence of a witness statement and that the Form F2 contains evidence about Mr Pal’s dismissal and the reason for delay in filing his application, I marked the application as Exhibit A1. This was not opposed by WSA. • A copy of Mr Pal’s termination letter dated 13 May 2024. This was provided to Mr Pal on 14 May 2024. I marked the termination letter Exhibit A2. • An outline of argument – extension of time document filed by Mr Pal on 23 July 2024. I marked this document Exhibit A3. • An outline of argument – objections document filed by Mr Pal on 23 July 2024. I marked this document Exhibit A4. • An outline of argument – merits document filed by Mr Pal on 23 July 2024. I marked this document Exhibit A5. • A statement of evidence filed by Mr Pal on 23 July 2024. I marked the document Exhibit A6. • A copy of Mr Pal’s offer letter and contract with WSA dated 12 September 2022. I marked the offer letter and contract Exhibit A7. • A copy of Mr Pal’s Employment Separation Certificate dated 25 June 2024. I marked the certificate Exhibit A8. [10] Mr Pal was briefly cross-examined on his evidence. [11] Mr Pal made oral closing submissions at the end of the determinative conference. I have also taken into account submissions made by Mr Pal in the documents identified above, given many of the documents contained a mixture of evidence and submissions. -- 2 of 9 -- [2024] FWC 2106 3 WSA [12] WSA relied on the following evidence in opposition to Mr Pal being granted an extension of time: • Witness statement of Mark Allen (Technology Delivery Director) dated 30 July 2024. I marked Mr Allen’s statement Exhibit R1. Mr Allen was briefly cross-examined on his evidence. • Witness statement of Dana Brown (People & Culture Officer) dated 30 July 2024. Ms Brown’s statement had the following documents attached: - Attachment A: A copy of Mr Pal’s offer letter and contract date 12 September 2022. - Attachment B: A copy of WSA’s position description for the Technology Risk Manager position. - Attachment C: A record of leave taken by Mr Pal during his employment with WSA. - Attachment D: A copy of Mr Pal’s termination letter dated 13 May 2024. - Attachment E: A State of Service for Mr Pal dated 13 May 2024. The statement refers to Mr Pal’s employment ending “due to the end of his maximum-term contract.” - Attachment F: Outplacement service information provided by WSA to Mr Pal on 14 May 2024. - Attachment G: A list of vacancies within WSA provided to Mr Pal on 14 May 2024. - Attachment H: A flyer about Employee Assistance Provider (EAP) services provided to Mr Pal on 14 May 2024. - Attachment I: A screenshot of a text message from Ms Brown to Mr Pal on 14 May 2024. Ms Brown checks whether Mr Pal got home safely and Mr Pal replied “Yes”. - Attachment J: An email from Mr Pal to Ms Brown dated 28 May 2024. Mr Pal requests an Employment Separation Certificate. - Attachment K: An email from Linh Pham (Senior Financial Accountant) to Mr Pal dated 25 June 2024. Ms Pham’s email has an Employment Separation Certificate attached. -- 3 of 9 -- [2024] FWC 2106 4 - Attachment L: Documents from WSA’s EAP service which confirm the EAP service called Mr Pal on 24 July 2024 to check on his well-being following a request from Ms Brown. - Attachment M: An email from Ms Brown to an outplacement service dated 14 May 2024. Ms Brown requests that outplacement services be provided to Mr Pal for three months. - Attachment N: An email to Ms Brown from the outplacement service dated 25 July 2024 which indicates Mr Pal logged into their portal on 21 May 2024. I marked Ms Brown’s statement, and the attached documents, Exhibit R2. Ms Brown was not required for cross-examination. [13] WSA also relied on its Form F3, and an outline of submissions dated 30 July 2024. Mr Van Der Donk provided oral closing submissions at the end of the determinative conference. Extension of time [14] Section 394(2) of the FW Act provides that an unfair dismissal application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the Commission allows. Was the Application made within 21 days after the dismissal took effect? [15] As the Full Bench has stated in relation to a general protections application, but which is equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”1 [16] Although Mr Pal referred during the determinative conference to the relationship between him and WSA not completely ending until he received his final termination payments and a separation certificate in mid-June 2024, Mr Pal accepted his dismissal took effect on 14 May 2024. That is consistent with the termination letter and Mr Pal’s Form F2 application. I find Mr Pal was dismissed by WSA effective 14 May 2024. [17] Given the dismissal date of 14 May 2024, the 21-day filing period ended on 4 June 2024. Mr Pal’s application was filed 15 days late on 19 June 2024. As a result, Mr Pal needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act. Was the application made within such further period as the Commission allows? -- 4 of 9 -- [2024] FWC 2106 5 [18] Under s.394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether Mr Pal first became aware of the dismissal after it had taken effect; and (c) any action taken by Mr Pal 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 Mr Pal and other persons in a similar position. [19] Each of the above matters must be considered in assessing whether there are exceptional circumstances.2 Consideration Reason for the delay [20] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 4 June 2024. The delay is the period commencing immediately after that time until 19 June 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.3 [21] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.4 [22] Mr Pal does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Pal has not provided any reason for any part of the delay.5 [23] Mr Pal identified ulcerative colitis as the reason he missed the 21-day filing period and stated the dismissal exacerbated his condition. Mr Pal also referred to issues with his mental health following his unexpected dismissal as a reason for the delay. [24] It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.6 [25] The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.7 -- 5 of 9 -- [2024] FWC 2106 6 [26] I have no medical evidence concerning Mr Pal’s medical conditions. In the absence of any supporting medical evidence, I cannot be satisfied that Mr Pal’s condition prevented him filing an application within 21 days of the dismissal taking effect. I also have no evidence regarding what changed with Mr Pal’s condition for him to be able to file an application on 19 June 2024. [27] I find Mr Pal does not have a satisfactory reason for the delay and consider this factor weighs against a finding of exceptional circumstances and the granting of an extension of time. Did Mr Pal first become aware of the dismissal after it had taken effect? [28] Mr Pal accepted he was notified of his dismissal on 14 May 2024 and was provided with a termination letter. I consider this to be a neutral factor. What action was taken by Mr Pal to dispute the dismissal? [29] Mr Pal did not argue he took any action to dispute the dismissal besides filing an unfair dismissal application. I consider this to be a neutral factor. What is the prejudice to the employer (including prejudice caused by the delay)? [30] WSA did not refer to any particular prejudice it will suffer if an extension of time is granted. I consider prejudice to be a neutral factor. What are the merits of the application? [31] It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).8 [32] I am not able at this early stage to assess whether there is any merit to Mr Pal’s argument that there was an ulterior motive behind his dismissal purportedly made by WSA due to operational changes. Given there are factual disputes between the parties, I would ordinarily find the merits to be a neutral factor. [33] However, it does appear highly likely that Mr Pal was not a person protected from unfair dismissal for the purposes of s.382 of the FW Act. Mr Pal provided evidence that his employment with WSA was not covered by a modern award or enterprise agreement.9 Mr Van Der Donk submitted WSA is conscious of the various modern awards that apply to its disparate workforce and that no award covered Mr Pal. I am not in a position to finally determine the issue, but it appears likely that Mr Pal’s employment was not covered by a modern award or enterprise agreement. Mr Pal’s contract states that his annual total fixed remuneration inclusive of superannuation was $232,050.00. Ms Brown provided uncontested evidence that Mr Pal’s base annual salary was $217,242.70.10 It is clear Mr Pal’s annual rate of earnings was well above the high income threshold at the time of his dismissal, which was $167,500.00. In the circumstances, I consider it is highly likely that WSA’s other jurisdictional objection will succeed, and Mr Pal’s application will be dismissed as a consequence. -- 6 of 9 -- [2024] FWC 2106 7 [34] I find the merits of Mr Pal’s application weigh against a finding of exceptional circumstances and the granting of an extension of time. Fairness as between Mr Pal and other persons in a similar position [35] As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”11 In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.12 [36] Neither party advanced a persuasive argument regarding this factor. I consider this to be a neutral factor. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [37] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above. [38] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.13 Exceptional circumstances may 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 can be considered exceptional.14 The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension.15 [39] I have not found that any of the relevant factors weigh in favour of an extension of time being granted to Mr Pal. I have found Mr Pal does not have a satisfactory explanation for the delay and that the merits of the application weigh against the granting of an extension of time. [40] Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. Conclusion [41] I decline to grant an extension of time for the filing of the application. [42] The application is dismissed. Further matter – redundancy [43] Mr Pal’s termination letter does not refer to him receiving any redundancy payment when his employment with WSA ended. Given the reason provided by WSA for Mr Pal’s -- 7 of 9 -- [2024] FWC 2106 8 dismissal was that his job was no longer required to be performed by anyone, it appears likely the redundancy definition in s.119 of the FW Act would be triggered. [44] I suspect WSA may have formed the view that Mr Pal is not entitled to redundancy pay because he was employed under a maximum term contract and potentially excluded from redundancy pay entitlements by virtue of s.123(1)(a) of the FW Act. I am not certain that is the correct position. Given Mr Pal was employed under a maximum term contract that clearly permitted either party to terminate with notice seemingly for any reason, it is doubtful that Mr Pal’s employment would meet the definition of employment for a “specified period of time.” In any event, Mr Pal’s employment did not end by the effluxion of time at the end of the maximum term. WSA dismissed Mr Pal during the term of the contract for operational reasons. The parties may find some assistance on this issue from the decision of Commissioner Spencer in Australian Federation of Air Pilots v Becker Helicopter Services Pty Ltd [2019] FWC 561. COMMISSIONER Appearances Mr Pal representing himself. Mr Van Der Donk and Ms Grattan for WSA. Determinative conference details: 2024. Sydney (by video via Microsoft Teams). 2 August. Printed by authority of the Commonwealth Government Printer <PR778035> 1 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 2 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 3 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. -- 8 of 9 -- [2024] FWC 2106 9 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40]. 6 See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)-[2018] FWCFB 1643, [38], [67]. 7 Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9]. 8 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]. 9 Exhibit A4. 10 Digital Hearing Book [102]. 11 Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41]. 12 See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19]. 13 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 14 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 15 Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. -- 9 of 9 --