Arpita Das v Technosoft (Australia) Pty Ltd T/A Technosoft

[2017] FWC 5727

[2017] FWC 5727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Arpita Das

v

Technosoft (Australia) Pty Ltd T/A Technosoft

(C2017/5162)

COMMISSIONER RYAN MELBOURNE, 2 NOVEMBER 2017

Application to deal with contraventions involving dismissal - extension of time refused - application dismissed.

1. This decision relates to the application made by Ms Arpita Das pursuant to s.365 of the Fair Work Act 2009 (the Act) being filed outside the 21 day time period stipulated by s.366 of the Act. The following decision, now edited, was issued in transcript on 1 November 2017.

1. The Applicant filed her first application on 11 August and that was an unfair dismissal application.  The Applicant chose to go down the path of filing an unfair dismissal application.  That was dismissed on 1 September.  The Applicant then filed a general protections not involving dismissal and that didn't proceed, and then the Applicant filed a general protections involving dismissal.

1. The provision of the legislation that I have to deal with in relation to this matter is section 366 of the Fair Work 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.”

1. That last criteria doesn't apply in this matter because there's only one person who was dismissed and therefore there's no other people in the same position as Ms Das.

1. The phrase that's used in the legislation is that the Commission can grant an extension of time if there are "exceptional circumstances".  Now, there is a decision of a Full Bench of this Commission which has discussed what is meant by "exceptional circumstances".  The case is known as Nulty v Blue Star Group Pty Ltd.[1]  In that decision, the Full Bench says:

“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.”

1. Having said that, the Full Bench then goes on immediately after that and says:

“Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application.”

1. Then it goes on:

“The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances".  In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

1. What that means is that just because the Applicant didn't know whether she could make an unfair dismissal application or a general protections application, or didn't know the time limits, that is not considered to be an exceptional circumstance.

1. In this matter, it appears the Applicant chose to make an application for an unfair dismissal remedy and the only reason that the Applicant has made applications for a general protections matter is because her unfair dismissal application was dismissed by the Commission.

1. That shows, if nothing else, that the Applicant you had the capacity to have made the choice as to which jurisdiction you want to proceed down and you chose to go down the path of unfair dismissal and not going down the path of a general protections matter in the first place.

1. The Applicant put the following contention to the Commission:

“I think you can consider my case as exceptional because this is the first time handling general protection and understanding it can mean conduct.  It would be very good if you can consider my situation.  That will be good for me because I choose that first one because I was aware of the process and it had been already happened one month before with another employer that basically a solution and that was quite successful, I was very happy, so I can apply (indistinct) because it was a nine-month contract which I was employed, so there was no chance of this (indistinct) had been broken and I was not allowed again for condition for unfair dismissal which says that you should be employed for at least six months, which I came to know later.”

1. That is one of the issues that is specifically dealt with by the Full Bench decision in Nulty where they say ignorance of law is no excuse.  Not knowing what the law says doesn't give rise to an exceptional circumstance.

1. In this matter, the Applicant chose to make an unfair dismissal application.  The Applicant did not suggest that anyone forced her to do that.  That appears to be something that the Applicant chose to do.  When Asked by the Commission “Am I correct that you chose to do that?” Ms Das replied: “Yes, because I was aware only for that one without legal advice.  After that, when I came to know that it's not correct for me and the Commission will not be able to help me, then I start taking legal advice because it's like there is - I am not aware of many things - it's only one application I was aware because that also I got from legal advice.”

1. The very fact that the Applicant talks about having got legal advice later means that the Applicant could have got legal advice earlier and the Commission can't see where there is an exceptional circumstance. The Commission can't see what is out of the ordinary or what's uncommon or what's special about this. The Applicant seems to be in the same position as many, many workers are and that is you get dismissed, you have to then try and find what to do. Most workers are not familiar with the Fair Work Act, most workers are not familiar with the timeframes, most workers are not familiar with the difference between a general protections application and an unfair dismissal application, but Parliament has made it clear that even people who aren't familiar with it, have only got 21 days to file an application.

1. In this case, the Applicant filed an application within 21 days of the date the Applicant contends that the dismissal took effect, but the Applicant chose the wrong application, and why should the Commission then grant the Applicant an extension of time?  This seems to be purely something - what we have got now is a set of circumstances in which the Applicant was in control of the circumstances.

1. Ms Das also contended that an exceptional circumstance existed “because it's my first time, so I request that you can accept this is special exceptional circumstances because I think the situations are different”.

1. The Commission understands and accepts completely the fact that this is the first time that such an event might have happened to the Applicant.  Most of the cases that the Commission deals with, it's the first time a dismissal has occurred with the applicants in those other matters as well.  Being a first time applicant or being dismissed for the first time and trying to find what your rights are is not considered to be an exceptional circumstance.  If it was, then everyone would effectively get an extension of time, but the case law makes it very clear that that is not the case.

1. The presumption from parliament's perspective is when parliament created a 21-day timeframe, it did so on the basis of presuming that every employee, no matter how ignorant they might be of the law, would have sufficient time to find out the information that they needed and to file the application they wanted to file.  Being a first time applicant is not a sufficient reason for the delay in this matter.

1. The Commission have taken into account each of the arguments the Applicant has put to the Commission.  None of them constitutes an acceptable reason for the delay and certainly not a reason which could give rise to an exceptional circumstance.

1. The Commission does clearly understand that the Applicant has been arguing with and challenging the conduct of her employer since April.  That is a factor which is in the Applicant’s favour and it is a factor that the Commission must take into account in considering whether or not the Commission should grant an extension of time, and it is reasonably clear that the Applicant has been constantly disputing the dismissal, once the Applicant became aware of it.

1. In the present matter, there doesn't appear to be any evidence put before the Commission by the company which would disclose that the employer would be prejudiced.  The Commission understands the argument being put in the written documentation from the company is that they would suffer prejudice, but it doesn't appear to the Commission that even if the Commission did grant an extension of time, the employer would necessarily be prejudiced by having the matter go ahead.

1. The Commission has also taken into account the merits of the application.  Now the case law in this area makes it very clear that this is not the time for the Commission to go into a detailed examination of the evidence of both sides.  The Commission can do no more than look at the cases that have been identified by the parties, the case of the applicant that says there has been adverse action for a prohibited reason and the case of the respondent which says there has not been adverse action and there was no prohibited reason.

1. Normally the merits of the application has neutral value in the Commission coming to a decision as to whether or not it should find that there are exceptional circumstances in the present matter.

1. If the Commission takes into account all of those relevant issues and weigh them together, it seems to the Commission, very clearly, that whilst the conduct of the applicant in constantly disputing the dismissal is a factor which should lead the Commission to consider granting an extension of time, it is outweighed by the lack of any reason and considered reason for the delay in filing this application and there is no reason advanced by the Applicant that would enable the Commission to come to the view that there is an exceptional circumstance in play.

1. On the Applicant’s own case, and this is without hearing any of the arguments from the employer, but, on the Applicant’s own case, there is no way the Commission could come to the view that exceptional circumstances exist in this matter such as would warrant the Commission exercising its discretion to grant an extension of time.

1. On the basis that the Commission can't find that there are exceptional circumstances, then the Commission is obliged to determine that as the application has been filed out of time, the application must be dismissed.

COMMISSIONER

Appearances:

Ms A Das on her own behalf

Mr V K Sarada on behalf of Technosoft (Australia) Pty Ltd

Hearing details:
2017.

Melbourne:

1 November.

[1] [2011] FWAFB 975

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