Gagandeep Jassal v Saundh Singh & Smith Lawyers Pty Ltd
[2024] FWC 1183
•7 MAY 2024
| [2024] FWC 1183 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Gagandeep Jassal
v
Saundh Singh & Smith Lawyers Pty Ltd
(U2024/3626)
| COMMISSIONER PERICA | MELBOURNE, 7 MAY 2024 |
Application for an unfair dismissal remedy
Mr. Gagandeep Jassal (the Applicant) has made an application under s 394 of the Fair Work Act 2009 for a remedy, alleging he had been unfairly dismissed from his employment with Saundh Singh & Smith Lawyers (the Respondent).
Procedural history
The application may have been made out of time. To deal with this threshold issue, I issued directions on 9 April 2024 for the filing of material.
Following adjournment requests from each party, the matter was heard by way of a determinative conference on 3 May 2024. The Applicant appeared, represented himself and gave sworn evidence. The Respondent was represented by Mr. Humza Mantoo of the firm Mantoo & Co Lawyers. Mr. Mantoo sought and was granted leave to appear under s 596 of the Act. Mr. Gurpal Singh, a director of the Respondent, was present and gave sworn evidence.
For the following reasons, I have decided not to grant an extension of time and the application in this matter is therefore dismissed.
When must an application for an order granting a remedy be made?
Section 394(2) provides that such an application must be made:
(a) within 21 days after the dismissal took effect: or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
A Full Bench has stated in relation to a general protections' application but equally applicable here, “[t]he 21-day period prescribed… does not include the day on which the dismissal took effect.”[1]
There is a contest on the evidence and submissions whether the Respondent terminated the Applicant’s employment, or he effectively resigned. It is not, however, contested the Applicant ceased employment with the Respondent on 5 March 2024. It follows the final day of the 21-day period was 26 March 2024 and ended at midnight on that day.
At 10:33 PM on 27 March 2024, the application was filed one day late. As it was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Under section 394(3), the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 26 March 2024. The delay is the period commencing immediately after that time until 10:33PM on 27 March 2024. Circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Applicant’s submissions on the reasons
The Applicant relied on two reasons for delay in his written submissions[6] and sworn evidence. One concerned his attempts to resolve the matter without recourse to litigation and the other to a medical emergency involving his daughter being treated for a broken finger.
The Applicant was pursuing a settlement
On 13 March 2024 at 12:36 PM, the Applicant sent an email to Mr. Singh to “address the circumstances surrounding [his] recent unfair termination from [the Respondent] and [his] rights under employment law”.[7] He then set out his version of events and “formally requested” payment of entitlements. It went on: “Should you fail to respond to this request and to meet your obligations I will be left with no choice but to seek assistance from Fair Work to pursue appropriate recourse.”
On 18 March 2024, Mr. Mantoo sent a letter by e-mail to the Applicant on behalf of the Respondent marked “without prejudice”. This letter was filed in this proceeding.[8] As the Respondent raised no privilege objection, I assume any claimed privilege has been waived.
The Respondent’s 18 March letter outlines the employment history of the Applicant, gives a narrative of the Respondent’s version of events, makes a series of legal counter claims and says “...Mr. Singh’s accounts team will calculate and prepare your owing entitlements and a figure will be forwarded to you in coming days”. In his submissions, the Applicant notes: “I did not, however, receive any payment confirmation or updates from the Respondent.”[9]
At 2:14 PM on 26 March 2024, the Applicant sent a seven-page letter by e-mail responding to each allegation and legal proposition put by the Respondent in the 18 March letter.[10] In that letter, he requested the Respondent “settle [his] outstanding entitlements, including compensation for [his] unfair dismissal, bullying and harassment”. The letter also threatened: “Should you fail to respond to this request or refuse to fulfil your obligations, I will have no choice but to seek assistance from Fair Work to pursue appropriate recourse.”
The Respondent answered this letter by an e-mail dated 29 March 2024 (after these proceedings had commenced) that “we will provide you with the final outstanding amount by 5 April 2024”.[11]
Medical emergency involving the Applicant’s daughter
The Applicant provided the following narrative of the events concerning this medical emergency in his submissions which were confirmed in his sworn evidence:[12]
“On 17 March 2024, my 10-year-old daughter, Reyna Jassal suffered a fractured finger while playing in the playground.
On 18 March 2024, I took her to the GP for a medical opinion, who then referred her for an X-ray to assess the extent of the injury. We promptly went to Capital Radiology for the X-ray, which confirmed the fracture in her little finger, necessitating the attention of a specialist as the GP was unable to provide a plaster cast/splint.
That evening, I took my daughter to the Priority Primary Care Centre, where a doctor applied a temporary splint and referred us to a specialist at Northern Hospital, Epping.
On 19 March 2024, I attended Northern Hospital with the referral from the doctor, hoping to see the specialist. However, an appointment was scheduled for 25 March 2024 at 9:30 am.
On 25 March 2024, I took my daughter to Northern Hospital for her appointment with the specialist, who assessed her finger and the existing splint, and then scheduled another appointment for further assessment on 16 April 2024.”
In his sworn evidence, he confirmed he was occupied for “a full day” on 18 March attending with his wife and daughter to the various medical interventions. On 19 March he was occupied for “half a day”. On 25 March 2024 he was occupied for “16 to 18 hours”
at the Northern Hospital.
The Applicant filed corroborating materials relating to the medical appointments such as the referral letter from the general practitioner, a letter from Capital Radiology, and appointment confirmations from the Northern Hospital.[13]
In cross examination the Respondent sought to assert the Applicant’s wife in fact attended these appointments and the Applicant himself did not. The Applicant answered that he did in fact attend. I am satisfied the Applicant did attend these appointments.
Consideration of the reasons given
The test in Nulty v Blue Star Group PtyLtd[14] (Nulty) is that exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special, or uncommon. The circumstances do not need to be unique nor unprecedented, nor even very rare.
The Applicant argues the fact he was pursuing a settlement without recourse to litigation is a reason for the delay. There was an exchange of correspondence between the parties commencing with the letter of the Applicant of 13 March 2024 and ending with the letter of the Applicant dated 26 March 2024. The 26 March letter was seven pages long and sets out in some detail his version of events and his demands. Attempts by parties to settle a legal controversy prior to the commencement of legal proceedings are not uncommon. Settlement discussions are not special or unusual circumstances.
There may be some logic to the pursuit of a settlement as a reason for delay if an offer and counteroffer had been made and the matter was moving towards a resolution. Although there was a concession that entitlements may be owing, no payment or offer was made by the Respondent during the twenty-two-day period from the date of the cessation of employment to the filing of the Application. The settlement discussions cannot be an exceptional circumstance justifying a delay because the settlement negotiations could have continued once the proceeding was commenced.
Turning to the medical emergency involving his daughter, on his own evidence, the emergency consumed a total two and a half days (on 18, 19 and 25 March) of the twenty-one-day time limit for making his application.
I accept that on 25 March 2024 he was fully occupied and unable to attend to prosecuting his unfair dismissal application. The Applicant still had a further complete day to draft and file an application within time. On 26 March 2024 (which was the last day of the time limit), despite the emergency, the Applicant still found time to send a seven-page letter to the Respondent. The Applicant could have spent the last day preparing an application to commence his unfair dismissal proceeding.
I agree with the view expressed by Deputy President Colman in McBride that “lodging an unfair dismissal application [is] a process which involves the completion of a very simple form in any one of a variety of simple ways.”[15]
The simplicity of the form is particularly significant in this case. The Applicant has held a practising certificate since November 2018. The evidence adduced at the determinative conference establishes he practised in litigation, although he had not practised in labour law. The composition of a simple form briefly setting out the circumstances of the cessation of his employment should not have been difficult for the Applicant. The form he eventually filed was three pages long exclusive of attachments.
It follows the brief period of his daughter’s medical emergency cannot provide a reason for the delay in filing. The Applicant could have filed the application at any time prior to the medical emergency on 18, 19 and 25 March 2024. Further, the Applicant still had a complete day to file the application on 26 March 2024, the twenty-first day following the cessation of his employment.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute that the Applicant became aware of the cessation of his employment on 5 March 2024, the same day it took effect. He therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
It is not disputed the Applicant wrote to the Respondent on 13, 18 and 26 March 2024 contesting the manner his employment ceased.
What is the prejudice to the employer (including prejudice caused by the delay)?
In its oral submissions, the Respondent sought to argue it was prejudiced by the failure of the Applicant to comply with the time limit for filing his application. This notional prejudice is not sufficient to count against the extension of time.
What is required is a forensic prejudice relating to the Respondent’s ability to run its case. I asked Mr. Mantoo if he could identify any forensic prejudice to his client arising from the delay. He conceded he could not.
What are the merits of the application?
The events of the cessation of Applicant’s employment on 5 March 2024 and the circumstances leading up to those events on 4 March 2024 are contested. The Applicant and Mr. Singh gave sworn evidence of those circumstances at the determinative conference.
In his written submissions, the Applicant claims Mr. Singh terminated his employment on 5 March 2024. He also claims he was subjected to verbal abuse, bullying and harassment and had been underpaid his entitlements.[16] The Respondent in its written submissions claims the Applicant effectively resigned on 5 March 2024. It also claims the Applicant had performance issues, had taken unauthorised leave, and had set up a law firm while the Respondent still employed him.[17]
4 March 2024
In his submissions, the Applicant claims he was subject to “verbal abuse” on 4 March 2024. He then went to lunch. When he returned, Mr. Singh had closed the office. He states: “This unprecedented incident left me feeling disrespected and unsupported in the workplace.”[18]
Applicant’s oral evidence
The Applicant elaborated on the “verbal abuse” in his oral evidence. He gave evidence that Mr. Singh said to him, “I gave you an intervention order file. You put a wrong application”. The Applicant then explained the circumstances in relation to that file. Then Mr. Singh abused him about another file. The Applicant then told Mr. Singh he would take a lunch break.
When he came back the office was empty, the lights were out, and the front door was locked. In his oral evidence the Applicant explained his reaction to the office being locked on his return: “It was like saying “You're not welcome”.”
Mr. Singh’s oral evidence
The account Mr. Singh gave of the events of 4 March 2024 was different. He gave evidence that leading up to that day, he had been busy in Court on a number of family court matters. The proceedings involved matters on which the Applicant had worked. Mr. Singh gave evidence he was not feeling well on 4 March 2024. He had “a migraine, [his] eyes were heavy, and [he] had pain in the lower legs”. He asked the Applicant if they could do a file review and asked him to bring in the files. His evidence about what transpired between himself, and the Applicant was as follows:
“I give you an application. I give you all the details of the party and you did a wrong application. But it's OK. I will improve you …I've been improving you all through. It's not the first time. And then [the Applicant] said, I'm going for lunch. I said, all right. I waited for close to 40 minutes, and I was so tired I could not sit in the office. I left the office, and when I went downstairs from level 11, I waited there for 10 minutes for a cab, it was close to 50 minutes or so. I could not see him, and then my cab came. I went home, I rested.”
5 March 2024
Applicant’s oral evidence
The Applicant gave the following oral evidence about the termination of his employment. The Applicant went to Mr. Singh’s office to ask what work he should be doing on the day. Mr. Singh was agitated and said to the Applicant words to the effect that he could not have dinner because he was so upset with the Applicant and that it was affecting his health and his family. Mr. Singh said: “I cannot take it anymore. Just give me the key and leave the office.” He gave him the key. Before the Applicant left, he attempted to speak to Mr. Singh, but his office door was closed. The Applicant then collected his belongings and left.
Mr. Singh’s oral evidence
In his oral evidence, Mr. Singh stated he had requested the Applicant to come to his room because he had “flagged with him on 4 March 2024” that he had “not been taking sufficient interest in the matters he had worked on”. Mr. Singh said to the Applicant:
“You sit at your seat all the time and in last three days when I was in court, despite the fact that you were involved in those files. You did not even ask one time the whole day. … if I need any assistance. The files were in shambles. They were not properly indexed which I expect for a junior lawyer to do. I said last three days were very important and I'm in court every day. You did not come to me at all. You did not ask me if I need anything. One of my clients had said. “Where is Gagan?” Mr. Singh replied, “he is in his office”.
The Applicant then said, “I do whatever you tell me to do”. Mr. Singh replied: “All right, let's bring the files. Let's see where the issues are. I have been encouraging you all the time. I've been spoon feeding you. I have improved your English. I have taken you from a point where you didn't even know how to write the letter…I have trained you. I would not do that even for my own relative…You should grow in life because this is not easy. It's a very competitive atmosphere”. Mr. Singh said in evidence that in response to this, the Applicant took the office keys out of his pockets, put them on the desk and said “OK, I'm leaving”. Mr. Singh denied that he had the door closed on this day. His evidence was the door to his office was “half open”.
Consideration of the merits as a factor
There are not only contested facts as to whether the Applicant resigned or was terminated by the Respondent, but also a series of allegations and counter allegations made by each party which could not be adequately tested in the short determinative conference.
On the limited evidence I have heard, it is not possible to make a firm or detailed assessment of the merits. I cannot make a definitive assessment of the claims of harassment, verbal abuse, and underpayment of the Applicant. Nor can I form a definitive view on the Respondent’s claims of performance issues, unauthorised leave, or the significance of the legal practice the Respondent alleges the Applicant set up prior to the cessation of his employment. The difficulties of making a merit assessment are compounded by the contest between the parties as to whether the Applicant resigned or whether the Respondent terminated his employment.
It is evident the merits of the application turn on contested points of fact. It is not possible to make a merit assessment in this case without a full hearing where the evidence may be comprehensively heard and weighed. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s366(2)(d)”[19] and the same applies to s394(3)(e).
In the circumstances, I find it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
In his oral submissions during the determinative conference, the Applicant sought to raise the circumstances of a “55-year-old employee who brought clients to the [Respondent]
and was unfairly dismissed”.There is nothing before me to indicate the former employee was “in a similar position” as the Applicant nor any submissions provided to explain how “fairness” between the Applicant and that person would be enhanced by granting an extension of time. The Respondent objected to these submissions on the basis of relevance and “prejudice.”
As no substantial submission have been made by either party in relation to this factor, I find there is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 394(3)(f).
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
For the reasons I have expressed above, I find the following in relation to the factors I must take into account under s394(3):
Reason for the delay [s 394(3)(a)]: Neither the pursuit of a settlement of the Applicant’s claims nor the two-and-a-half-day period he was occupied by his daughter’s medical emergency can be regarded as exceptional circumstances. This factor counts against an extension of time.
The Applicant first became aware of the dismissal after it had taken effect [s 394(3)(b)]: The Applicant was made aware of (what he claims was) his dismissal on the same day it took effect. He therefore had the benefit of the full 21-day period to lodge his unfair dismissal application. This factor is neutral in a consideration of whether I should grant an extension of time.
Action to dispute the dismissal [s 394(3)(c)]: The Applicant took action on three separate occasions to dispute the legality of the cessation of his employment and other matters. This factor counts in favour of an extension of time.
Prejudice against the Respondent because of the delay [s 394(3)(d)]: Given the delay was a single day, there is no evidence of prejudice against the Respondent. This factor is a neutral consideration to whether I should grant an extension of time.
Merits of the Application [s 394(3)(e)]: On the basis of the written submissions and limited oral evidence given at the determinative conference I cannot make a merit assessment of this application. This factor is a neutral consideration to whether I should grant an extension of time.
Fairness between the Applicant and other persons in a similar position [s 394(3)(f)]: No substantial submissions were made on fairness arising between the Applicant and other persons in a similar position. This factor is therefore neutral to an assessment of whether I should grant an extension of time.
I therefore conclude the reasons given for the delay under s 394(3)(a) count against an extension of time, while the action taken by the Applicant to dispute the cessation of his employment under s393(3)(c) count in favour of an extension of time. All other factors under s 394(b), (d), (e) and (f) are neutral. Therefore, on balance, and taking all the factors under s394(3) into account, I cannot be satisfied there are exceptional circumstances.
As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time, and I decline to do so. The Applicant’s unfair dismissal application is dismissed.[20]
COMMISSIONER
Appearances:
Gagandeep Jassal¸ the Applicant, for himself
Humza Mantoo, of Mantoo & Co Lawyers, on behalf of the Respondent
Hearing details
Friday, 3 May 2024
11 Exhibition Street, Melbourne
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Ibid [40].
[6] DCB at pp. 21 to 25.
[7] DCB at p. 7.
[8] DCB at pp. 40 and 41. As the Respondent did not raise any privilege objection to the matter being filed and referred to it in the determinative conference, I assume that any privilege has been waived.
[9] DCB at p. 21.
[10] DCB at pp. 111 to 117. This letter was also marked “without prejudice”. No privilege objection was taken to the filing of this letter and was openly referred to in the determinative conference. I therefore assume any privilege claim has been waived.
[11] DCB at p. 119.
[12] DCB at p. 22.
[13] DCB at pp. 34 to 36.
[14] [2011] FWAFB 975.
[15] McBride v. J.A Kreiger Forestry Services [2021] FWC 6284, [5].
[16] DCB at pp. 21 to 25.
[17] DCB at pp. 50 to 57.
[18] DCB at p. 22.
[19] Nulty [2011] FWAFB 975, [36].
[20] PR774596.
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