Daljit Singh v Gemini Logistics Pty Ltd

[2024] FWC 2787

[2024] FWC 2787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Daljit Singh
v

GEMINI LOGISTICS PTY LTD

(C2024/4314)

COMMISSIONER MIRABELLA MELBOURNE, 10 OCTOBER 2024

Application to deal with contraventions involving dismissal – application filed out of time – extension of time not granted.

1. Mr Daljit Singh (the Applicant) has applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal (the application).

1. The Applicant indicated in his Form F8 application at question 1.5 that he had made the application within 21 days of his dismissal.

1. The Applicant was dismissed on 13 May 2024, and this is not a disputed matter. For his application to have been filed within time, he needed to file before 4 June 2024. The Applicant filed on 27 June 2024. The application was 24 days late.

1. Section 366(1) requires an application to be made within 21 days after the dismissal or within such further period as the Commission allows. The Commission may only allow a further period within which to file if it is satisfied that there are exceptional circumstances, taking into account:

   ·   The reason for the delay,

   ·   Any action taken by the person to dispute the dismissal,

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

   ·   The merits of the application, and

   ·   Fairness as between the person and other persons in a like position.

1. In deciding on whether there are exceptional circumstances, I must consider and give appropriate weight to each of the matters in s.366(2). These are circumstances that are ‘out of the ordinary course, or unusual, or special, or uncommon’ but that ‘need not be unique, or unprecedented, or very rare’.[1]

1. The matter was dealt with by way of hearing earlier today at which the Applicant gave evidence in support of his application.

Relevant factors

Section 366(2)(a) – The reason for the delay

1. The reason for the delay is one of the factors in s.366(2) that I need to weigh up in assessing whether there are exceptional circumstances in this matter, and the reason itself need not be an exceptional circumstance.

1. The Applicant submits that following his dismissal he was struggling financially and was at times homeless.  He submits that because of an intervention order taken out against him, he was unable to return to the family home. As a result, the Applicant says he stayed in a different location each night, including in his car, truck or at the homes of various friends. He submits he was struggling to afford accommodation and food. The Applicant further submits that he was unable to recharge his phone or was recharging it intermittently. Because of this, and his unstable living situation, he submits he had only occasional access to the internet.

1. The Applicant did not file any materials to support his submissions made in paragraph 8 above.

1. The Applicant submits his limited financial position was exacerbated by the Respondent failing to pay his salary for his final four weeks of work and because they withheld two weeks of his pay when he started working for them and a $600 bond.

1. The Applicant further submits that he made a complaint regarding his termination to the Victorian Small Business Commission (the VSBC) on 23 May 2024 and had lodged an application under s.394 on 13 June 2024. At the hearing, he clarified that ‘Small Business of Victoria’ advised him a few days after he filed with them that he should go to ‘Fair Work’. The Applicant submits he was subsequently advised by the Commission that he was ineligible to make an unfair dismissal application because he had not met the minimum employment period applying to such applications, and that he could file a general protections application.

1. The Applicant gave evidence at the hearing in words to the effect that he ‘didn’t read very much about the laws’.

1. The mistake of filing the wrong application, particularly when that incorrect application was itself filed out of time, does not adequately explain the delay in the filing of this application.

1. Whilst accepting the Applicant’s circumstances following his dismissal indicated a challenging time for him, I do not believe this adequately explains the delay. The Applicant’s circumstances did not prevent him from using an online format to lodge materials with a state government authority. The Applicant did manage to file within time what he believed was an application about his dismissal in what he describes as a ‘complaint’ with the VSBC. Whilst the Applicant gave evidence to the effect that he had not ‘read very much about the laws’, I do not consider that this ignorance of the law supports a finding of exceptional circumstances.

1. I am not satisfied that any of the reasons, either individually or combined, given to explain the Applicant’s delay in filing his application would support a finding of exceptional circumstances. This factor weighs against the application for an extension of time.

Section 366(2)(b) – Any action taken to dispute the dismissal          

1. Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[2]

1. The Applicant says that on 23 May 2024, he made an application with the VSBC and that he also filed an application under s.394 with the Commission on 13 June 2024.

1. The s.394 application, although challenging the Applicant’s dismissal, is outside the 21-day statutory period. I do not consider this factor supports a finding of exceptional circumstances.

Section 366(2)(c) – Prejudice to the employer, including prejudice caused by the delay

1. No submissions were made on this factor and in all the circumstances I will treat it as a neutral consideration.

Section 366(2)(d) – Merits of the application

1. An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested, but the merits are nonetheless a factor that I am required to take into account in assessing whether there are exceptional circumstances.

1. In the Form F8A response filed with the Commission, the Respondent submits that the Applicant was dismissed for poor performance, punctuality, reliability, work ethic and misuse of a fuel card and rental vehicle provided by the Respondent. The Respondent alleges the Applicant was often late to jobs, took too much leave and was unresponsive to calls and emails.

1. In response to the Respondent’s claim he took too much leave, the Applicant submits that he always communicated with the Respondent about his leave, but that this was sometimes without advance notice when he was sick. The Applicant further submits that he only used the Respondent’s rental vehicle without authorisation twice and that this was when the Respondent had not paid his salary on time.

1. The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

1. I do not consider the merits of the present case to tell for or against an extension of time. I consider this to be a neutral consideration.

Section 366(2)(e) – Fairness as between the person and other persons in a similar position

1. The parties did not make submissions on this factor, and it will be treated as a neutral consideration.

Are there exceptional circumstances?

1. Exceptional circumstances may 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 can be considered exceptional.[3]

1. I found that the relevant factors were either neutral or did not weigh in favour of a finding of exceptional circumstances.

1. Having regard to all the matters in s.366(2) of the Act and the foregoing, I am not satisfied that there are exceptional circumstances in this case such that I allow the Applicant additional time within which to make his application.

Conclusion

1. Having found that there are no exceptional circumstances in this case, I cannot grant an extension of time to allow the Applicant to file beyond the statutory period. Accordingly, the application is dismissed.

1. An order to this effect will be issued with this decision.

COMMISSIONER

[1] Nulty v Blue Star Group[2011] FWAFB 975 (Nulty) at [13].

[2] Brodie-Hanns v MTV Publishing Ltd (1996) 67 IR 298.

[3] Nulty at [13].

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