Chandan Subba v Sodexo Remote Sites Australia Pty Limited

[2021] FWC 6511

[2021] FWC 6511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chandan Subba
v
Sodexo Remote Sites Australia Pty Limited
(U2021/10135)

DEPUTY PRESIDENT BEAUMONT PERTH, 3 DECEMBER 2021

Application for an unfair dismissal remedy

1 Introduction

[1] Mr Subba (the Applicant) applied for an unfair dismissal remedy, having been purportedly dismissed from Sodexo Remote Sites Australia Pty Ltd (the Respondent) on or around 18 October 2021. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.

[2] The Applicant concedes that his application was filed on 10 November 2021 and was therefore submitted some two days after the statutory deadline. However, he attributes the delay in filing his application on an error of his representative.

[3] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect.

[4] It is not contested that the application was made out of time. However, for the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. 1

[5] The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted.

2 Background

[6] The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application were as follows.

[7] On or around 10 March 2021, the Applicant accepted a position as a Cost Analyst with the Respondent.

[8] The Applicant reports having been notified of his dismissal on 20 September 2021 in a meeting with a representative of the Respondent, and thereafter having received a letter of 6 October 2021, where he was notified that his employment was to be terminated at the initiative of the Respondent.

[9] The letter of 6 October 2021 referred to the Respondent having performance managed the Applicant by providing feedback on his performance and outlining expected standards and requirements of his role. The letter also set out that the Respondent had decided that the Applicant had not met the required performance expected for the role, that his employment would be terminated on 18 October 2021, and that he would be provided with four weeks’ notice of cessation of his employment.

[10] The Applicant said that he approached Unfair Dismissals Australia Pty Ltd (UD Australia) on 29 October 2021 and instructed them to proceed with his application. The Applicant submitted that there was correspondence between him and UD Australia, in which he requested his case be ‘forwarded’ on 3 November 2021.

[11] On Monday, 8 of November (21 days after dismissal), the Applicant said that he again reiterated to UD Australia to proceed forward with his case. On Tuesday, 9 November 2021, UD Australia wrote back to the Applicant informing him that the lodging time had elapsed. The Applicant said that he wrote to UD Australia asking for advice, and they informed him to approach the Commission himself.

[12] In support of his assertions regarding the correspondence with UD Australia, the Applicant disclosed such correspondence. 2 That correspondence reveals that on Friday, 29 October 2021, UD Australia wrote to the Applicant outlining a schedule of fees and next steps for progressing an application with the Commission. On Saturday, 30 October 2021, UD Australia enquired as to whether the Applicant had given any more thought about proceeding with the ‘claim’.3 The Applicant responded later in the day on Saturday, 30 October 2021, noting that he had not looked at the details that had been sent to him and he would revert on the ‘Monday’.4

[13] While the Applicant had committed to instructing UD Australia on the Monday, it was not until Tuesday, 2 November 2021, that he made some further enquires. 5 Thereafter, there was correspondence between the Applicant and UD Australia over the course of 2 and 3 November 2021, which culminated with the Applicant writing to UD Australia on Wednesday, 3 November 2021, stating:

Great. Let us process with NOTHING up front $3,400 from the settlement amount please… 6

[14] UD Australia acknowledged receipt of the Applicant’s abovementioned instruction and noted that he had opted for an option that was not recommended if he wanted to maximise compensation. 7 The email asked the Applicant to let UD Australia know if he wanted to reconsider and then requested a discussion on the Friday – presumedly Friday, 5 November 2021.8

[15] In response to the request for a discussion the Applicant asked, ‘…what time on Friday?’ and was informed ‘8am (WA time)’, to which the Applicant agreed. 9

[16] The subsequent email from UD Australia on Monday, 8 November 2021, timestamped 5.18am, simply read ‘[P]lease advise’. The Applicant responded on that same day stating:

Please accept my apologies for not attending the call on Friday as I had a job interview and the timing coincided.

As conveyed before, I would like to proceed with No Win No Fee for now as my financial situation isn’t very good. 10

[17] On Tuesday, 9 November 2021, UD Australia emailed the Applicant informing him that it was no longer able to assist with lodging a claim as the timeframe for lodgement had elapsed. 11 On that same day the Applicant responded to UD Australia by email, expressing he had asked UD Australia ‘to proceed forward last week itself’.12 The Applicant asked for advice as to what to do. Having received no response from UD Australia the Applicant emailed it again on Wednesday, 10 November 2021, to which he received an email time stamped 10:54AM on that same day, advising him to lodge an application himself explaining why his claim was lodged out of time.13

[18] The Applicant explained that he had missed his appointment with UD Australia on Friday, 5 November 2021, as UD Australia had not called him at 8.00am (AWST) as agreed. The Applicant stated that UD Australia called him at 9.39am (AWST), but at that time he was driving to interviews so he did not speak with them. When asked in cross examination whether he sought to re-schedule the time for the discussion, the Applicant conceded that he had not on that day as his interviews ran to later in the day and thereafter it was Saturday and Sunday.

3 Extension of time

[19] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 14 In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.

[20] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 15 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 16

[21] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph [4] of this decision. Each of these factors are considered below and were outlined to the parties at the start of the hearing.

3.1 Reason for the delay

[22] 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. 17 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. A credible explanation for the entirety of the delay will usually weigh in the applicant’s favour however, all of the circumstances must be considered.18

[23] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application. 19 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.20

Representative error

[24] Where a representative error is a factor said to have contributed to the delay in making the application, it is accepted that the conduct of the applicant nevertheless is to be examined. 21 In Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service,22 a Full Bench decision that considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:

Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.” 23

[25] Having been dismissed, that Applicant did not take immediate steps to obtain assistance from a paid agent or legal representative to obtain advice. Further, there is no evidence before the Commission to suggest that the Applicant made his own enquiries regarding the pursuit of an unfair dismissal application.

[26] The Applicant gave viva voce evidence that from the date of his dismissal until seeking advice from UD Australia he had been applying for jobs with the Respondent or making enquiries with the Respondent, and hence why he did not seek advice about his dismissal until 29 October 2021. There is no direct evidence to support such assertions.

[27] In his written submissions the Applicant spoke of informing the HR Director on 29 October that he would be seeking the help of an external agency. Again, there is no direct evidence to support such contention.

[28] While the Applicant spoke of it being a hard and tough decision to make an unfair dismissal application, in my view there is no plausible explanation as to why it took the Applicant until 29 October 2021 to seek assistance.

[29] Having sought the assistance of UD Australia and having instructed UD Australia on Wednesday, 3 November 2021, to proceed with his ‘claim’, UD Australia requested a telephone discussion with the Applicant on Friday, 5 November 2021. The Applicant gave evidence that he had interviews scheduled on the afternoon of the Friday and whilst UD Australia agreed to contact him at 8.00am (AWST) they did not contact him until after 9.00am (AWST), at which time he was in transit for interviews. The Applicant provided no credible explanation as to why he did not reschedule the telephone discussion with UD Australia on that day, noting only that it was too late in the day once he had concluded the purported interviews.

[30] In reference to not contacting UD Australia on the Saturday or the Sunday, the Applicant referred to such days as public holidays and therefore it was not appropriate to contact UD Australia at such time. However, the Applicant’s evidence sits contrary to the direct evidence he adduced, where on Saturday, 30 October 2021, UD Australia emailed him, and he responded on that same day. It is therefore evident that there was nothing that precluded the Applicant from corresponding with UD Australia over the course of that weekend.

[31] Briefly stated, the Applicant does not explain why he did not attempt to reschedule his call on Friday, 5 November 2021, with his representative when he knew had an interview near or around the same time and therefore may not be able to attend. He does not explain why he did not pursue the representative on Monday, 8 November 2021, by phone or follow up email to ensure that his application was lodged. It is apparent from the Applicant’s email correspondence to the Respondent on Tuesday, 9 November 2021, that the Applicant was aware of the time limit. The Applicant said to UD Australia in a follow up email dated Tuesday, 9 November 2021 ‘I presumed you kept track of the days’.

[32] Once informed on Tuesday, 9 November 2021, that UD Australia was no longer able to assist the Applicant, instead of making an unfair dismissal application at this time, the Applicant waited until Wednesday, 10 November 2021 to do so. No reason was provided for the delay in making the application in this period. Whilst apparent that on Wednesday, 10 November 2021, the Applicant again sought UD Australia’s advice on what to do in the circumstances, the Applicant could have availed himself of the resources provided on the Commission’s website. He was clearly aware of the possibility of making an unfair dismissal application, and by Tuesday, 9 November 2021, he was aware that the statutory timeframe had passed.

[33] Legal assistance or representation by a paid agent is not required to file an application for a remedy for unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. There was nothing to preclude the Applicant from checking the statutory timeframe for the making of the application, rescheduling the appointment with UD Australia on Friday, 5 November 2021, or making the application on his own accord.

[34] I consider that it was unreasonable for the Applicant to simply place trust in UD Australia to make an unfair dismissal application in circumstances where UD Australia had requested to hold a discussion with the Applicant on Friday, 5 November 2021. Further, in respect of UD Australia’s request, the Applicant did not promptly call UD Australia when they did not call at the agreed time and the Applicant did not call UD Australia to reschedule the telephone discussion over the course of Friday, 5 November to Sunday, 7 November 2021.

[35] I am unconvinced that there was a representative error made by UD Australia, and even if there was, I consider that the Applicant is not blameless given the lack of urgency to address the making of his unfair dismissal application.

[36] I have considered the delay as the period beyond the 21-day period. However, regard has been had to the circumstances from the date the dismissal took effect. I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

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

[37] At all material times from the time the Applicant was notified of his dismissal on 20 September 2021until the date the unfair dismissal application was made, the Applicant knew he had been dismissed. I consider this to be a neutral factor.

3.3 Action taken by the person to dispute the dismissal

[38] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 24 I have considered all submissions and the evidence in this respect. The Applicant asserted that he spoke to the Manager, ‘IFMS HR’ and the CEO of the Respondent, alerting them that his dismissal was unfair. No timeframe is provided as to when these alleged discussions took place, and detail concerning such discussions is limited. In the absence of direct evidence to support such assertions, it proves difficult to indulge a finding that the Applicant took action to dispute the dismissal.

[39] Having considered the evidence and submissions of the Applicant the Respondent, there is insufficient evidence to find that the Applicant challenged his dismissal. This weighs against a finding of exceptional circumstances.

3.4 Prejudice to the employer

[40] I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances.

3.5 Merits of the application

[41] In Kornicki v Telstra-Network Technology Group, 25 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 26

[42] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. 27 The merits of the application more generally would need to be scrutinised. This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.

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

[43] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, 28 where it was said:

[C]ases 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. 29

[44] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, based on the submissions filed and as such I consider it a neutral consideration.

4 Conclusion

[45] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time and I consider that it is not fair and equitable to grant the extension. The factors considered either do not weigh in favour of granting an extension or are otherwise neutral – neither weighing for nor against.

[46] It follows that the Applicant’s application for an unfair dismissal remedy is dismissed. An Order 30 will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr. Chandan Subba, for the Applicant;

Mr. Michael Nazareth, for the Respondent.

Hearing details:

Perth (telephone);

December 2;

2021.

Printed by authority of the Commonwealth Government Printer

<PR736440>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Exhibit A3 Email Chain.

 3   Ibid.

 4   Ibid.

 5   Ibid.

 6   Ibid.

 7   Ibid.

 8   Ibid.

 9   Ibid.

 10   Ibid.

 11   Ibid.

 12   Ibid.

 13   Ibid.

 14 [2011] 203 IR 1 (‘Nulty’).

 15   [2018] FWCFB 901.

 16 Ibid [38].

 17 Ibid [17].

 18 Ibid [39].

 19   Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 [40].

 20   Mr KeMitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

 21   Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466.

 22   Ibid.

 23 Ibid [35].

 24   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 25  Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

 26   Ibid.

 27   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 28   [2015] FWC 8885.

 29 Ibid [29].

 30   PR736441.