Gautam Gupta v Menulog Pty Ltd

[2021] FWC 5129

[2021] FWC 5129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gautam Gupta
v
Menulog Pty Ltd
(U2021/6582)

COMMISSIONER MCKINNON MELBOURNE, 18 AUGUST 2021

Application for extension of time to file unfair dismissal application – application refused.

[1] Gautam Gupta has applied for a remedy for unfair dismissal from Menulog Pty Ltd. His application was made on 26 July 2021. It identifies the date of dismissal as 18 June 2021. This means that his application was filed 17 days after the expiry of the statutory 21-day period during which such applications must usually be filed. 1

[2] Menulog objects to the application, including because it was lodged out of time.

[3] I have decided not to allow additional time for Mr Gupta to make his application to the Commission. In doing so, I have made no finding about whether Mr Gupta was an employee, and/or whether he was dismissed by Menulog. It is not necessary to decide those matters, because the consequence of my decision is that Mr Gupta is not able to apply for an unfair dismissal remedy in this case. These are my reasons for refusing to allow additional time.

Should additional time for making the application be allowed?

[4] Section 394(2) of the Fair Work Act 2009 (Cth)(the Act) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. A further period can only be allowed if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.

[5] The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group 2:

“[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.” 3 [Emphasis added]

[6] Section 394(3) of the Act sets out the matters that must be taken into account in relation to whether there are exceptional circumstances. These are:

•  the reason for the delay;

•  whether the person first became aware of the dismissal after it had taken effect;

•  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 similar position.

The reason for the delay

[7] As noted above, the application was made 17 days late. The reason given for the delay is that Mr Gupta waited four weeks for an answer to his request for proof of an alleged ‘code of conduct’ breach. He knew the Commission was very busy and did not want to put it the trouble of dealing with his case only to find his account become ‘active’ in another four weeks’ time. He waited five weeks for a response from Menulog and then made his application to the Commission.

[8] These are not exceptional circumstances. They show that Mr Gupta is a considerate and patient man. Unfortunately, those characteristics work against him in the context of the statutory timeframe for action. The reasons for delay do not support an exercise of discretion to allow additional time for Mr Gupta to make his application.

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

[9] Mr Gupta was notified of the decision to render his account ‘inactive’ by email on 11 June 2021, after a third alleged breach of contract for ‘critical swiping’. Critical swiping is when a courier swipes completion of two steps toward the collection and delivery of a customer order, in a period of time considered by Menulog to be too short for the steps to have actually been taken. Mr Gupta’s last delivery through the Menulog platform was on 10 June 2021. His account was temporarily disabled from 11 June 2021 and on 18 June 2021, his access to the Menulog platform was “permanently removed”. The date of 18 June 2021 is taken to be the date that the alleged dismissal took effect.

Any action taken by the person to dispute the dismissal

[10] On 8 May 2021, Mr Gupta wrote to Menulog challenging the assertion that he had incorrectly swiped orders on the Menulog platform, after a second alleged ‘critical swiping’ breach. Menulog responded on 9 May 2021 thanking him for the feedback. Though his approach to deliveries was more cautious after that time, a further alleged breach was notified to Mr Gupta on 11 June 2021 together with notice that his access to the Menulog platform would be permanently removed. Mr Gupta replied immediately on 11 June 2021, disputing - and seeking proof of - the allegations against him. He asked for his issue to be resolved fairly and foreshadowed that if it was not, he would contact the Commission. Menulog did not respond to his email.

[11] I consider that Mr Gupta acted promptly to dispute the permanent removal of his access to the Menulog platform by his email of 11 June 2021. After that time, no steps were taken to dispute the alleged dismissal until the application was made.

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

[12] There is no relevant prejudice to Menulog if Mr Gupta is given additional time to make his application.

The merits of the application

[13] The merits of the application cannot be fairly assessed at this early stage, including because of the complex issues raised by the parties. One aspect of Mr Gupta’s claim is that the allegations that led to his removal from the Menulog platform were made because he queried his pay – in other words, in contravention of the general protections provisions of the Act. Also in contest is the nature of the relationship and whether it was one of employment. Similar issues are currently under consideration in the High Court of Australia, whose decision is likely to bear on this case. 4 Only if the question is resolved in Mr Gupta’s favour would he be eligible to apply for an unfair dismissal remedy. Assuming eligibility could be established, Mr Gupta was warned twice before his access to the platform was removed, each time for the same alleged breach of contract. The facts are confined and largely agreed between the parties, but the legal consequences that flow from those facts are very much in dispute.

[14] Despite his permanent removal from the Menulog platform, Mr Gupta’s account has since been reactivated – although only since Monday 16 August 2021. Mr Gupta can now access the Menulog platform to work as a courier and he intends to do so. This has a bearing on any potential remedy that might follow a finding of unfair dismissal.

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

[15] There is no apparent issue of fairness as between Mr Gupta and other Menulog workers before me.

Conclusion

[16] There are no exceptional circumstances in this case such that additional time can or should be allowed. And even if there were exceptional circumstances, the matters considered in this decision tend not to support the application for an extension of time, either on their own or taken together. The reason for delay is simply that Mr Gupta waited, to try and resolve the matter directly with Menulog, to avoid occupying the resources of the Commission. Mr Gupta knew that he had lost his access to the Menulog platform one week before the access was formally removed. He was aware of the possibility of an application to the Commission and foreshadowed as much in his email of 11 June 2021. He did not then take any reasonable steps to preserve his position in relation to the application. There is no prejudice to Menulog if additional time is granted. The merits are also a neutral consideration because they cannot be fairly assessed at this early stage. There is no issue of fairness between Mr Gupta and others in a similar position that arises on the face of the record.

[17] As I am not satisfied that there are exceptional circumstances in this case such that a further period should be allowed for the application to be made, I cannot allow an extension of time.

[18] The application is dismissed.

COMMISSIONER

Appearances:

G Gupta on their own behalf.

K Sweatman of Kingston Reid for the Respondent.

Hearing details:

2021.
Melbourne (video hearing):

18 August.

Printed by authority of the Commonwealth Government Printer

<PR732969>

 1   Fair Work Act 2009 (Cth), s.394(2).

 2 [2011] 203 IR 1.

 3 Ibid [13].

 4   Deliveroo Australia Pty Ltd v Franco [2021] FWCFB 5015.