Aman Prasad v Uniting Care Health T/A the Wesley Private Hospital

[2014] FWC 5410

[2014] FWC 5410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aman Prasad
v
Uniting Care Health T/A The Wesley Private Hospital
(U2014/7930)

COMMISSIONER SIMPSON BRISBANE, 11 AUGUST 2014

Termination of employment - application filed outside 21 day time limit - No exceptional circumstances - Application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Aman Prasad (“the Applicant”) who alleges that the termination of his employment with Uniting Care Health T/A The Wesley Private Hospital (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.

[2] The Applicant was dismissed on 23 May 2013 and the application was filed on 18 June 2014. For the application to have been filed within time it needed to have been filed by Friday 13 June 2014.

[3] At a directions hearing on 28 July 2014 I granted the Respondent legal representation for the purposes of the jurisdictional matter only. A Form 3 Employer’s Response to Application for Unfair Dismissal Remedy raised the jurisdictional objection that the Applicant had failed to make the application within 21 days.

[4] The Applicant accepts his application was lodged out of time but says there are exceptional circumstances warranting the Fair Work Commission (the Commission) exercising its discretion to allow a further period under s.394(3).

[5] On 28 July 2014 the Commission issued directions for the parties to file and serve submissions in relation to the out of time issue. The Applicant and the Respondent consented to the jurisdiction objection being dealt with on the papers.

Summary of Submissions for the Applicant - Extension of Time

[6] The Applicant submits that the extension of time should be granted under s.394 (3) of the Act on the following basis:

a. The Applicant’s wife was suffering from severe morning sickness and post-natal depression;

b. The Applicant’s wife had a pregnancy terminated on 26 May 2014;

c. The Applicant had to take full responsibility caring for his sick wife and two young children;

d. The Applicant’s child was suffering from asthma at the time and had to be monitored which meant the Applicant did not have any proper sleep;

e. The Applicant does not have access to a computer or internet and had to use the library to access information;

f. The Applicant was allocated one hour per internet session at the library which made it difficult to communicate with various people and departments;

g. The Applicant owns one car and is required to transport his children to Corinda and then take his wife to work which makes it difficult to have time to obtain information in regards to his unfair dismissal application;

h. Use of public transport is not an option because it is two kilometres away from his residence.

Summary of Submissions for the Respondent - Extension of Time

[7] The Respondent submitted that while it was sympathetic to the difficulties that the Applicant and his family faced, none of the reasons given viewed in isolation or collectively are sufficiently exceptional to meet the relevant test.

[8] The Respondent submitted that;

a. The Applicant became aware that he had been dismissed on the same day the dismissal took effect, 23 May 2014;

b. The Applicant did not take any action to dispute his dismissal within the 21 days following;

c. The Applicant knew or ought to have reasonably known that his application for an unfair dismissal remedy was due within 21 calendar days of the dismissal;

d. The Applicant has not provided compelling reasons why his Application was lodged out of time;

e. none of the reasons proffered are unusual or extraordinary; and

f. the substantive Application is without merit.

[9] The Respondent submitted that the reasons in connection with taking his child to the doctor, only having one car, arranging a further loan or re-negotiating a loan and liaising with a builder regarding arrangements for a building process are not ‘unusual’ or ‘extraordinary’ as summarised in the decisions of Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers, 1 and Cheyne Leanne Nulty v Blue Star Group Pty Ltd2.

[10] In regard to the termination of the Applicants wife’s pregnancy, the Respondent referred to Raza v Eureka Operations Pty Ltd t/a Coles Express 3 where the Commission held that it had to be satisfied that exceptional circumstances existed for the full period of the delay and in that case did not extend time where the applicant had to care for his wife following her discharge from hospital but did not lodge the application for several weeks after her recovery.

[11] The Respondent also referred to Ebbott v FMSA 4where in another out of time application it was held an applicant who had been responsible for looking after his girlfriend after she had threatened miscarriage and subsequently had cervical surgery, did not establish a causative link between those personal matters and the failure to lodge the application in time.

[12] The Respondent drew attention to the medical certificate provided for his wife that provides she was incapacitated for the two days of 26 and 27 May, however the application was still not filed until 18 June.

[13] The Respondent referred to a decision in Truong v Elawar & Sons Mechanical Repairs  5in support of its submission that the Applicants claim that he did not have a computer and internet at home was not a situation out of the ordinary, unusual, special or uncommon, and therefore was not a basis to say there were ‘exceptional circumstances’.

CONSIDERATION

[14] Section 394 of the Act reads as follows:

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] I agree with the Respondents submission that the reasons provided by the Applicant do not appear to be causative of the delay, or at least the whole period of the delay.

[16] The Respondent made the Applicant aware of his dismissal on the day it occurred both verbally and in writing. The Applicant did not dispute the dismissal within the 21 day time limit.

[17] Sub section 394(3)(d) and (e) are neutral in this matter and s.394(f) provides no assistance in this case and is also a neutral consideration. Having taken into account all of the circumstances required by s.394(3) I am not satisfied exceptional circumstances exist and on that basis an extension of time cannot be granted and the application must be dismissed.

COMMISSIONER

 1   [2010] FWAFB 7251

 2   [2011] FWAFB 975

 3   [2012] FWA 5919

 4   [2010] FWA 2177

 5   [2012] FWA 9709

Printed by authority of the Commonwealth Government Printer

<Price code C, PR554076>