Bhaveshkumar Patel v Freshco Foods

[2017] FWC 4318

[2017] FWC 4318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bhaveshkumar Patel
v
Freshco Foods
(U2017/5162)

DEPUTY PRESIDENT DEAN SYDNEY, 1 SEPTEMBER 2017

Application for an unfair dismissal remedy – extension of time.

[1] Mr Patel was employed by Freshco Foods (Freshco) until he was notified of his dismissal on 18 November 2016, with immediate effect.

[1] On 15 May 2017 Mr Patel lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by Freshco. His application was made some 157 days outside the 21 day period prescribed by s.394(2) of the Act.

[2] Freshco objected to the application and the matter was listed for hearing by telephone on 24 August 2017 to determine whether to grant Mr Patel an extension of time.

[3] At the hearing, Mr Patel appeared on his own behalf and Mr Hameed appeared for Freshco.

[4] Section 394(3) of the Act provides:

(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.

[5] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant.

[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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.”

[7] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[8] In his application, Mr Patel states the reason for the delay as follows:

“Because I put [sic] complaint to the Fair Trade Ombubsment [sic] and they are working. But when I get soon [sic] information from them, they told me employer make excuses and blamed on me. And Zyad does not want to pay my legally wages and superannuation and tax and overtime money. I put complaint straight away when they dismissal [sic] to me. And after I was looking after my wife at Westmead Hospital to her [sic].

[9] In his written submissions provided on 18 and 29 May 2017, Mr Patel made various statements in relation to his wife’s ill health and hospitalisation.

[10] At the hearing, Mr Patel confirmed the matters set out in his written statements of 18 and 29 May 2017 and expanded on some aspects of those statements.

[11] Freshco contends that the explanations submitted by Mr Patel failed to demonstrate that they are circumstances that could be considered as ‘exceptional’. Freshco’s submissions focussed on responding to the allegations of underpayment of wages and a dispute about Mr Patel’s length of employment.

[12] Freshco made further oral submissions during the hearing which supplemented its written submissions.

Consideration of reasons for delay

[13] In considering whether the reason for the delay amounts to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay 2. That consideration does not include the period from the date of the dismissal to the end of the 21 day period.

[14] Mr Patel contended that his wife’s health condition and her hospitalisation was a major factor warranting an extension of time. In addition, it was Mr Patel’s evidence that he was waiting for the complaint with the Fair Work Ombudsman to be dealt with.

[15] Mr Patel gave further evidence at the Hearing that his explanation for not filing an application for unfair dismissal during the months of January and February was that his wife was in hospital for those months. When I questioned him as to his explanation for the months of March and April he said that he had to look after his wife as well as attend to his university accounting studies. He gave evidence that “I lost my concentration……and I didn’t know where to get help.”

[16] During the hearing Mr Patel was asked by Freshco to recall the date that he first contacted the Fair Work Ombudsman for assistance, however he could not immediately do so. I gave Mr Patel a further 24 hours to provide my Associate with this information. By way of email, later that same day, he confirmed that he could not recall the date, and provided me with an email from the Fair Work Ombudsman dated 16 March 2016. The email makes it clear he had sought the assistance of the Fair Work Ombudsman by this date.

[17] Despite my explanation to the parties at the commencement of the hearing that the hearing was only to decide whether to extend time for Mr Patel to pursue his application, a significant part of Mr Patel’s submissions focussed on whether Mr Patel was paid correctly during his employment, and the financial hardship Mr Patel was suffering as a result of his dismissal.

[18] While I am sympathetic to Mr Patel’s circumstances, Mr Patel has not provided an adequate explanation for the whole period of the delay. For the period of March and April 2017, his wife was not hospitalised and he was able to undertake his university studies during this period. In addition, he was able to pursue an underpayment claim with the Fair Work Ombudsman during this period. There was no satisfactory explanation as to why Mr Patel could not lodge his unfair dismissal application during this period.

[19] Having considered all of the evidence and submissions of Mr Patel, I find that the matters addressed by him (individually or collectively) cannot be considered out of the ordinary, unusual or uncommon. This weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[20] There is no dispute over Mr Patel’s termination date of 18 November 2017, and I find that this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[21] After his dismissal Mr Patel lodged a complaint with the Fair Work Ombudsman relating to unpaid wages and entitlements. Evidence of the date of lodgement was not provided. There is no evidence that Mr Patel disputed his dismissal until the lodgement of his application. I find that this is a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay)

[22] While Mr Patel’s application was some 157 days late, there were no submissions or evidence as to prejudice to the employer. In the absence of any evidence, I am not persuaded that granting an extension of time would result in any prejudice to Freshco. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[23] For the purpose of determining whether to grant an extension of time for Mr Patel to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’³

[24] Based on the evidence and submissions during the hearing, there is clearly a significant dispute between the parties as to the circumstances surrounding Mr Patel’s dismissal.

[25] On the material before me, I am unable to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[26] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 4 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’5

[27] I do not consider that there are other relevant persons in a similar position to Mr Patel, and I therefore find it to be a neutral consideration.

Conclusion

[28] Having considered all of the matters to which my attention is directed by the Act, together with the evidence and submissions made by the parties, I find that there are no exceptional circumstances which would warrant granting an exception to the statutory time limit. The circumstances of Mr Patel are not out of the ordinary course, unusual, special or uncommon. Accordingly, the application is dismissed.

[29] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

B Patel on his own behalf.

Z Hameed for Freshco Foods

Hearing details:

2017.

Sydney (by telephone):

August 24

 1   [2011] FWAFB 975.

 2   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

3 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 4   [2015] FWC 8885.

 5 Ibid at [29].

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