Barinder Bhatti v Lucky Nickel Pty Ltd
[2022] FWC 2571
•30 SEPTEMBER 2022
| [2022] FWC 2571 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Barinder Bhatti
v
Lucky Nickel Pty Ltd
(U2022/8565)
| COMMISSIONER LEE | MELBOURNE, 30 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – application lodged out of time – exceptional circumstances – extension of time granted.
This is an edited version of the decision delivered ex tempore and recorded in transcript on 21 September 2022. It is noted that Lucky Nickel Pty Ltd (the Respondent) did not attend the hearing and were not responsive to the attempts of my Chambers to contact them. The hearing proceeded in their absence.
Mr Bhatti (the Applicant) commenced employment with the Respondent on 1 January 2022 and he was employed in the position of a Business Development Manager. The reason given by the Respondent for the decision to terminate the Applicant’s employment was set out in the F3 lodged by Mr Tien Tran (Director) on behalf of the Respondent, which was to the effect that the business was not doing well, that he had more staff than he could afford, and he decided to step back from how he was operating. The Respondent states the following on the Form F3, which refers to a text message that the Respondent sent to Mr Bhatti on 28 July 2022:
“Initially I thought to close the business for six months as per my text message, but I ultimately decided to scale back staff and expenses to see if I could operate the business with lower expenses.”
The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). That application was lodged on 22 August 2022, so the application was filed outside the statutory time frame. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The Applicant’s employment was terminated by the Respondent with effect from 28 July 2022. That is not in dispute. The Respondent concedes that in the Form F3 response.
Based on a termination date taking effect on 28 July 2022, the application for a remedy should have been lodge by no later than 18 August 2022. The application was, therefore, lodged outside of the time prescribed. The application was made, in effect, four days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for unfair dismissal remedy may be made if it was satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am, first, satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion. The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay;
· whether the applicant first became aware of the dismissal after the date it took effect;
· any action taken by the applicant to dispute the dismissal;
· prejudice to the respondent including prejudice caused by the delay;
· the merits of the application; and
· fairness as between the applicant and other persons in a similar position.
Each of the matters need to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there were exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
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 or unprecedented, nor do they need to be very rare. I must be satisfied that taking into account s.394(3) that there are exceptional circumstances. I now consider these matters in the context of the application.
Firstly, dealing with the reason for the delay, the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances and a credible explanation for the entirety of the delay will usually weigh against an applicant’s favour. However, all the circumstances must be considered.
The reasons that the Applicant was delayed in filing his material stem from the circumstances surrounding the way in which he was dismissed. His evidence is that he was sent a text message indicating that he was being dismissed for the reason that Mr Tran was stopping or closing down the real estate business for a period of at least six months. The first text message that was sent was:
“I’m getting money out of my house and payout everyone
And stop lucky Nickel Realestate for 6 months
Ok. If you got a job take care of yourself
thank you for your time.”’
A second message was sent on the same day on 28 July 2022:
“Sorry Vic, I’m letting you go, i’ll get money and pay you out. give me time i’ll get money from my house.”
The basis upon which 28 July was the date the Applicant understood he was being terminated was that the business was shutting down. In his evidence, the Applicant has made clear that over a period of time, through information received from viewing Facebook and through other contacts, he at a later point became aware that that in fact was not true; that the company had not actually closed and was continuing to operate.
On that basis, his initial understanding that there was essentially no utility in contesting an unfair dismissal application changed. The position is that the company is in fact still operating, and the original basis upon which he thought he was terminated was not accurate. That the company is still operating has been confirmed in the F3 filed by the Respondent, where it makes clear that Mr Tran initially intended to close the business and that was reflected in his text message, but ultimately, he did not do that.
During this period, the Applicant has been agitating the Respondent for the payment of his allegedly unpaid entitlements and has not been able to elicit a response from the Respondent. During that same period, he has come to understand that the business is in fact still operating and that the Respondent is simply not communicating with him. In the circumstances, the Applicant has not proceeded to lodge an unfair dismissal claim as he initially has understood and accepted that the business was closing. On becoming aware it was not in fact closed and upon his difficulty in getting Mr Tran to respond to anything, he has then lodged an unfair dismissal application.
I am satisfied with the time it has taken for Mr Bhatti to come to understand he was not terminated because the business was closing but for some other reason, because the business is not closed, and this has contributed to his short delay in filing material. I am satisfied that in all the circumstances that is an acceptable reason for the delay. In the circumstances, I am satisfied that the Applicant has provided an acceptable explanation for the delay. That is a matter that weighs in favour of the Applicant in this case.
Turning to whether the Applicant first became aware of the dismissal after the date it took effect. The evidence is the Applicant was advised on 28 July 2022 that his employment would end on that day. In the circumstances that is a matter that is of neutral consideration.
As to any action taken by the Applicant to dispute his dismissal, the Applicant did not take action to dispute the dismissal initially as he accepted that Mr Tran was closing the business. He was taking action to dispute his unpaid entitlements, but in all the circumstances it was not action taken to dispute the dismissal per se up until the lodging of this application shortly after the end of the 21-day period. In the circumstances that is a matter that weighs neither against nor in favour; it is a neutral consideration.
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an applicant for an extension of time. The Respondent did not submit anything on the prejudice issue, but the Applicant’s evidence is that there is no prejudice. It is a short delay and there is no evidence that there is any prejudice in the circumstances. On balance, I think that is a neutral consideration in the instant case.
In terms of the merits of the application, in cases such as this where the substantial merits of an application are not fully examined into or agitated it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable. Having done that, it seems to me that the Respondent – judging from the F3 where the Respondent says that they object to the application on the basis that it is out of time – understands that the application is out of time.
The Respondent also objects on the basis that the dismissal was a case of genuine redundancy. The Applicant was purportedly made redundant and the basis for that was that the business was said to be closing at the time that the alleged genuine redundancy took effect. However, according to both the Applicant and the Respondent, that is not in fact true; the business did not close. Therefore, the change in the operational requirements that were relied on at least for the purposes of s.389(1)(a) are apparently false.
Of course, there may be some other operational requirement upon which the Respondent can rely, but certainly the one they have relied on at the time the dismissal took effect was not true. In any event, it seems extremely likely on the evidence before me that the Respondent did not comply with the obligation to consult under the Real Estate Industry Award 2020, the modern award which the Respondent accepts applied to the Applicant. In those circumstances, the Respondent’s assertion that the termination of the Applicant’s employment was a genuine redundancy is highly likely to fail.
It seems apparent that the Applicant was dismissed by text message and that this was the extent of the procedure by which he was dismissed. The apparent failure to consult suggests it would seem likely to be found that this is not a case of genuine redundancy. In considering the factors in respect of s.387 of the Act, including whether there was a valid reason for the dismissal and certainly the factors that deal with whether the person was notified of the reason or given an opportunity to respond and so on, it is unlikely that those factors will weigh in favour of the Respondent and the Applicant is likely to be able to mount a strong case that the dismissal was unfair.
In these circumstances and of course only on the limited material available to me, I am of the view that the Applicant has a case of significant merit. It seems to me, therefore, that his claim is, on a preliminary assessment basis – and I stress that it is just a preliminary assessment basis – of significant merit. That is not to suggest it will succeed, but I am satisfied that there is significant merit which would give the Applicant a justifiable reason to pursue his claim. In the circumstances that is a matter that weighs in favour of the Applicant.
As to fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, 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 or likely position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission.
It may also relate to the position of various employees and an employer responding to an unfair dismissal application. The position that the Applicant put on this matter was that he could not comment on that because he was unsure of other people’s finances. That is not a particularly relevant consideration. In the circumstances, neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. Therefore, I consider this to be a neutral consideration.
In conclusion, statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the parliament’s intention that rights should be exercised promptly so it can bring about certainty. Time limits seek the balance of the right to bring an action against the desirability for prompt action and certainty.
The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party - in this case in relation to a dismissal - that the right to question that action will be exercised, otherwise except in exceptional circumstances a right to bring the action will be lost. The person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider to allow a further period.
Weighing all the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period. As I have indicated, I am satisfied that there is an acceptable reason for the delay for the reasons that I have set out earlier. That is a factor that weighs in favour of the Applicant.
I am satisfied that the Applicant’s case in terms of an assessment of the merits of an unfair dismissal has significant merit. That is a factor that also weighs in favour of the Applicant. All the other factors are neutral considerations. When I consider each of the matters set out in s.394(3) in the context of the evidence in this case and when I look at those circumstances collectively, I am satisfied that they establish that there are exceptional circumstances in this case which warrant the consideration of the exercise of my discretion to extend the period within which the application has been made.
As to whether I should now exercise my discretion, in my view I do not see any reason - there is no sound basis, and none has been brought to my attention - that I should not exercise the discretion. Having been satisfied that there are exceptional circumstances, I see no reason not to exercise the discretion. In the particular circumstances of this case, I will exercise the discretion to allow a further period. I, therefore, propose to allow a further within which this application may be made. That further period is extended to the date the application was lodged, which was 22 August 2022.
COMMISSIONER
Appearances:
B Bhatti, Applicant.
Hearing details:
2022.
Melbourne (via Microsoft Teams).
September 21.
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