Anwai Kumar Mukherjee v Australian Taxation Office
[2024] FWC 1268
•17 MAY 2024
| [2024] FWC 1268 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Anwai Kumar Mukherjee
v
Australian Taxation Office
(C2024/2142)
| COMMISSIONER WILSON | MELBOURNE, 17 MAY 2024 |
Application for general protections involving dismissal – extension of time – no exceptional circumstances – application dismissed.
This matter concerns an application made by Anwai Kumar Mukherjee (the Applicant) for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Mukherjee’s employment with the Respondent, the Australian Taxation Office (the ATO or the Respondent) came to an end on 27 November 2023. Mr Mukherjee’s application was received by the Commission on 2 April 2024.
Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. From the dates referred to above, Mr Mukherjee’s application was made 106 days out of time.
Consistent with the Commission’s usual practice on these matters the application was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Mukherjee’s application.
In considering an application for an extension of time for the making of a dismissal application, the Act requires satisfaction that there are exceptional circumstances to warrant the extension, taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[1] A decision as to whether to extend the time period under s.366(2) involves the exercise of a discretion.[2]
In this decision, I have considered whether an extension of time should be granted to Mr Mukherjee for the making of his application and, for the reasons set out below, I am not satisfied that there are exceptional circumstances such that a further period for filing should be allowed.
PRELIMINARIES
Directions for the filing of material on the extension of time were provided to parties on 22 April 2024.
Both parties advised that they consented to the matter being determined on the papers.
BACKGROUND
Mr Mukherjee commenced working for the Respondent in its graduate program on 6 February 2023. His employment was subject to a 12-month probationary period.
During the Applicant’s employment he had three rotations with different business areas.
Mr Mukherjee frequently suffered medical episodes during his employment which often required him to be absent from work.
The Applicant
Mr Mukherjee submits he was discriminated against based on his medical condition. Due to the nature of his condition, I have chosen not to disclose the particulars of his diagnosis and refer to the condition in this decision as a “medical condition” or “medical episode(s)”. For the same reasons I refer to the independent medical assessor and Mr Mukherjee’s treating doctor as “medical professionals”.
Mr Mukherjee alleges that he was not supported in his role with the ATO, and his managers were not approachable or discriminated against him for his medical condition. Further, he says that he was required to complete an Occupational Health Assessment. At the time of the Occupational Health Assessment, the independent medical professional stated he was fit for work.
Mr Mukherjee concedes that he had absences from work due to his medical condition and the side effects of the medication he was prescribed.
He says that on 9 October 2023 he was advised by the Respondent that they had received advice from the independent medical professional that he was unfit for work for 3 to 6 months. Mr Mukherjee disputes the date of the medical advice and makes assertions that the document is fraudulent.
The Respondent requested Mr Mukherjee visit his regular medical professional to obtain a fitness for duty assessment. Mr Mukherjee was advised by his treating medical professional that he was unfit for work, and that he would be reassessed when his condition was stable for four consecutive weeks. Mr Mukherjee’s treating medical professional advised at the conclusion of this period that he was fit to return to work.
Mr Mukherjee says that his treating medical professional advised him he would need to be reassessed by the independent medical professional however was told by the Respondent that they would not pay for a further assessment.
Mr Mukherjee provided consent to the Respondent to obtain medical information. He submits that he did not hear further from the Respondent about a return to work.
A letter of resignation was provided by Mr Mukherjee to the Respondent on 27 November 2023. The resignation took immediate effect.
The Respondent
Following Mr Mukherjee’s first medical episode at work, the Respondent attempted to provide Mr Mukherjee with assistance to perform his role.
In April and May 2024, the Respondent considered placing the Applicant on a Probation Support Plan and a Wellbeing Plan due to his performance issues and repeated medical episodes.
On 11 May 2024, the Applicant was advised that a Probation Support Plan was to be implemented.
On 17 May 2024, the Respondent’s in-house medical professional met with the Applicant’s treating medical professional to discuss the Applicant’s fitness for work. Based on the advice received, the Respondent decided to postpone the implementation of the Probation Support Plan. The Respondent also raised concerns with Mr Mukherjee on his unprofessional and disrespectful behaviour.
On 12 July 2023, an Occupational Health Assessment was conducted.
On 28 July 2023, Mr Mukherjee was asked to provide an explanation for the discrepancies identified in his timesheets.
On 28 August 2023, the Applicant was provided with a Wellbeing Plan and was asked to provide any feedback within 7 days.
On 26 September 2023, the Respondent requested a supplementary Occupational Health Assessment. The report was provided on 5 October 2023.
The outcome of the supplementary Occupational Health Assessment was provided to the Applicant on 9 October 2023, and he was given the opportunity to provide the Respondent with further information to dispute the outcome of the supplementary report.
The Applicant’s leave entitlements were exhausted on 12 October 2023.
On 16 October 2023, Mr Mukherjee advised the Respondent that his treating medical professional agreed he was not currently fit for work.
On 13 November 2023, Mr Mukherjee notified the Respondent that his treating medical professional suggested he was fit to return to work however requested the independent medical professional reassess the Applicant.
On 17 November 2023, the Respondent contacted Mr Mukherjee’s treating medical professional and sought further information about the assessment of the Applicant’s fitness for work. A response was provided on 24 November 2023.
Mr Mukherjee’s employment with the Respondent ended on 27 November 2023 when he notified his resignation with immediate effect. His application form acknowledges that he sent a resignation email to the ATO albeit that he believed certain actions of the ATO forced him to resign. Documents submitted to the Commission corroborate that a resignation letter was sent.
The Respondent disputes a dismissal occurred for reason of a forced resignation. The Respondent submits that Mr Mukherjee was not reaching acceptable performance standards and he voluntarily resigned his position.
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
CONSIDERATION
Extension of time – the criteria within s.366(2)
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application:
“[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”.[3]
In considering whether an extension of time should be granted to Mr Mukherjee, I am required to consider all of the criteria in s.366(2), which I now do.
The reason for the delay
It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[4] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[5] An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[6] While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[7]
The “delay” to be considered in this case is the period it took after the prescribed period for Mr Mukherjee to lodge his application. With Mr Mukherjee’s employment ending on 27 November 2023, for an application to be within time it would need to have been made before midnight on 18 December 2023. As a result, the delay to be considered is the period after 18 December 2023 until the actual lodgement dated 2 April 2024.
Mr Mukherjee’s explanation for his late lodgement of this matter is he has been attempting to gather evidence to prove the supplementary medical report was fraudulent, that he filed complaints in other Commissions, that he has been applying for jobs, and he was involved in a car accident and needed to obtain a new vehicle. Mr Mukherjee has not filed evidence in support of these four reasons.
The Respondent disputes there are exceptional circumstances for the delay, particularly given the Applicant resigned from his employment and denies it manufactured a document to say the Applicant was unfit for work.
The Commission has held that mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.[8] It is also the case that it is not out of the ordinary course, or unusual, or special, or uncommon for a person to be acting on their own without advice and to have to make an application within the statutory time-limit.
Care should be taken by any person contemplating making an application after the end of their employment about the appropriate application and the applicable time limit. The Commission has publicly available a content rich website containing procedural advice and highly detailed Benchbooks on all aspects of the relevant jurisdiction.
I do not find that any of the four reasons advanced by Mr Mukherjee either individually or collectively amount to exceptional circumstances.
Scrutiny of the material provided by Mr Mukherjee suggests that since being dismissed he has been focussed on escalating his complaints about the ATO in every forum he can think of, naming three Commissions other than the Fair Work Commission as bodies to whom he has either made complaints (in two cases) or might make a complaint (in a third case). While those are his rights, it suggests not only that he had the capacity to make an in-time Fair Work Commission application but that he was distracted or spread too thin because of a lack of attention to the Commission’s statutory time-limit.
The Applicant’s attention to seeking and obtaining another job is creditable, but also does not explain why, if he wanted to do so, he did not lodge his general protections application at an earlier time. His involvement in a not-at-fault car accident is no more than an exigency of life. While distracting it also is not an acceptable explanation of why the application was made late.
Even in combination the reasons Mr Mukherjee puts forward to explain why his application was late do not coalesce to an acceptable explanation. The application was considerably (106 days) late and the reasons put forward by the Applicant in combination merely show he was distracted by choice on other things.
As a result, I do not find that Mr Mukherjee has put forward an acceptable explanation for the delay in making his application. Therefore, my consideration of this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.
Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[9]
Mr Mukherjee says that he has raised his concerns with the supplementary independent medical report with other agencies. There is no evidence before the Commission of these actions.
Mr Mukherjee also says he has made a malpractice complaint against his treating medical professional.
There is no material before me to suggest that Mr Mukherjee has taken other steps to dispute his dismissal. This is therefore a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 106 days. The Respondent does not claim that the delay in lodging the application caused it prejudice.
While there has been some prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.[10]
In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter also is a neutral factor in my consideration.
The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.
In relation to the Commission’s consideration of the merits of an application, when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[11]
In general protections matters, s.361(1) presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question.[12]
In Mr Mukherjee’s case he asserts he was forced to resign due to the conduct of the Respondent as he was discriminated against by multiple supervisors and managers of the Respondent and a fraudulent report was relied upon which declared him unfit for work. He asserts a breach of ss.340, 351 and 352 of the Act.
The Respondent refutes each of Mr Mukherjee’s allegations and denies any breaches of the general protection provisions of the Act. Its case is that the Occupational Health Assessment that concluded Mr Mukherjee was unfit for work was provided by an independent medical professional on 5 October 2023. It says Mr Mukherjee was provided an opportunity to submit evidence to dispute the conclusion and that further information provided by Mr Mukherjee and his regular medical professional supported the independent medical professional’s conclusion.
The Respondent also raises the jurisdictional objection that the Applicant was not dismissed.
Mr Mukherjee says that he was notified of the report stating his unfitness for work for 3 to 6 months on 9 October 2023, that did not receive income from the Respondent after 12 October 2023 and his system and computer access was revoked. He says the Respondent’s conduct forced him to resign.
There is insufficient material before the Commission to form any view about the likely merits of Mr Mukherjee’s case, were it to proceed to a Court or to be the subject of a consent hearing before the Commission.
As I decline to grant an extension of time to Mr Mukherjee for the filing of his application, it is not necessary for me to determine the second jurisdictional objection of no dismissal.
Accordingly, consideration of this criterion is a neutral factor in my overall consideration of whether there are exceptional circumstances that would warrant the extension of time.
Fairness as between the person and other persons in a like position
In considering whether I should grant an extension of time, I need to have regard to whether any matters of fairness arise either to Mr Mukherjee or to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past.[13]
No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances.
CONCLUSION
Consideration of the statutory criteria in relation to exceptional circumstances shows that none of the criteria resolve in favour of Mr Mukherjee and in particular there is not an acceptable explanation for the delay in making his application. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are not exceptional circumstances that would allow a further period for a general protections application to be made by Mr Mukherjee.
For these reasons, I decline to grant an extension of time pursuant to s.366 of the Act and will issue an Order dismissing Mr Mukherjee’s application at the same time as this decision.
COMMISSIONER
[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[3] Nulty v Blue Star Group, [2011] FWAFB 975 (2011), 203 IR 1, [13].
[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].
[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
[6] Ibid, [40].
[7] Ibid, [41].
[8] Nulty v Blue Star Group[2011] FWAFB 975, (2011), 203 IR 1, [14].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[10] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].
[11] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[12] Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 [50], (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445.
[13] Wilson v Woolworths [2010] FWA 2480 [24]‒[29].
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