Gopal Nair v Halim Family Lodgings Pty Ltd T/A Sanctuary House Resort Motel

[2020] FWC 3998

[2020] FWC 3998

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gopal Nair
v
Halim Family Lodgings Pty Ltd T/A Sanctuary House Resort Motel
(U2020/9354)

COMMISSIONER LEE MELBOURNE, 7 AUGUST 2020

Application for an unfair dismissal remedy – application filed outside of statutory timeframe-application for extension of time-extension of time refused.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 27 July 2020.

[2] Mr Gopal Nair (the Applicant) commenced employment with Halim Family Lodgings Pty Ltd T/A Sanctuary House Resort Motel (the Respondent) on or about 13 January 2016. He was employed in the position of head chef and he worked in their restaurant. The reason given by the Respondent for the decision to terminate the Applicant’s employment was that due to COVID-19, it was decided not feasible to reopen the restaurant for the foreseeable future and the Applicant was redundant as they were no longer able to offer him any employment, in any position or capacity, in the circumstances where the restaurant was closed.

[3] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) and that application was lodged on 9 July 2020. The application was filed outside of the statutory timeframe. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The Applicant’s employment was terminated by the Respondent with effect from 22 April 2020. Based on the termination date taking effect from 22 April 2020 the application for a remedy should have been lodged by no later than 13 May 2020. The application was therefore lodged outside of the time described. The application was made in effect 57 days after the last date on which it could have been made.

[4] The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[5] Before dealing with the evidentiary matters let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act the statute allows me to allow a further period but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion. The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are: the reason for the delay; whether the Applicant first became aware of the dismissal after the date it took effect; any action taken by the Applicant to dispute the dismissal; prejudice to the Respondent including prejudice caused by the delay; the merits of the application and fairness as between the Applicant and other persons in a similar position.

[6] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. A requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant so it is necessary also to consider the matters collectively and to ask whether, collectively, the matters show exceptional circumstances. 1

[7] Briefly, ‘exceptional circumstances’ are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. 2 I must be satisfied that, taking into account s.394(3) of the Act, that there are exceptional circumstances. I now consider these matters in the context of the application.

[8] Firstly, the reason for the delay. 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. The absence of any explanation for any part of the delay will usually weigh against and Applicant in the assessment of whether there are exceptional circumstances and 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. 3

[9] In this matter, the Applicant, in answer to question 1.5 in the Form F2 are you making this application within 21 calendar days of your dismissal taking effect? hascorrectly answered, ‘No’ and said:

“The reason is that I had no knowledge that I could claim until I was told by the Fair Work Ombudsman.”

[10] The lack of knowledge of the statutory time frame is not an acceptable reason and that has been found by this Commission to be the case on many occasions and my finding on that is consistent with numerous decisions of the Commission.

[11] In response to the directions for this matter the Applicant filed further material indicating the reasons for the delay which relevantly, included that he had:

“[o]nly learnt himself about being able to sue for unfair dismissal when I contacted the Ombudsman of Fair Work Australia regarding non-payment of my annual leave loading.”

In other words, the Applicant was pursuing an alleged underpayment of annual leave and his evidence is that, in doing so, he spoke to the Fair Work Ombudsman (the FWO) and that the FWO, in turn, suggested that he lodge an unfair dismissal application. The Applicant’s evidence also was that the FWO was aware that his application was out of time, and they suggested to him that he try and get an extension of time. Again, the relevant point in terms of reason for the delay is that the Applicant was unaware until he had spoken to the FWO.

[12] I asked the Applicant when he spoke to the FWO. He was not sure, but his evidence was, ultimately, that it was in early July 2020. That time was well after when he was required to lodge his unfair dismissal application. The Applicant also, in the document that he filed on 20 July 2020, said that his wife has cancer, which he has been more concerned about during the COVID-19 pandemic. I have asked the Applicant in what way, the fact that his wife has cancer, had impacted on his ability to lodge the application and his answer was that she has to stay home to avoid the dangers of catching COVID-19 and that he has a daughter who has been studying at home.

[13] I have considered that evidence. While it is regrettable that the Applicant’s wife has cancer and I do not doubt that that has had significant impact in the context of COVID-19, I am not satisfied that it gives reason for the Applicant having filed his application 57 days late.

[14] The fact that the Applicant ultimately, relies on the fact that he was not aware of the ability to lodge an unfair dismissal application until the FWO had told him in response to his questions about annual leave loading and his concerns about his wife having cancer, neither of those, when examined, provide an acceptable reason for the delay. In the circumstances, I am not satisfied the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

[15] Whether the Applicant first became aware of the dismissal after the date it took effect. It is clear, on the evidence, that the Applicant first became aware of the dismissal after it took effect and he was advised of that on 22 April 2020 that his employment would end on that date. In the circumstances, the Applicant was well aware of the dismissal and had the full benefit of the 21 days allowed for in the statutory period to lodge his application. Consideration of this circumstance weighs against the Applicant.

[16] Action taken by the Applicant to dispute his dismissal. In the 20 July 2020 document, the Applicant stated, and he confirmed in his evidence at the hearing, that lodging the unfair dismissal application claim is the only action that he has taken to dispute the unfair dismissal. I should say that Mrs Helen Halim of the Respondent gave very clear evidence in the hearing that the Applicant emailed the Respondent at various times on 3 June 2020 and 26 June 2020 making demands for payments into his bank account or that he would have to pursue the matter with the Fair Work Australia.

[17] I certainly think there is evidence that the Applicant has disputed his alleged unpaid entitlements but there is no evidence that he has disputed, at all, the dismissal. And so that is a matter that weighs against the Applicant.

[18] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. Mrs Halim gave evidence that, in terms of prejudice, the redundancy or the dismissal of the Applicant was affected during the first period of the lockdown in Victoria and that we are now in the second lockdown, which is also impacting the business. Mrs Halim stated that it had been a significant period of time since the dismissal took effect and that they are simply in a position at the moment of trying to get the business to survive, that their occupancy rates of the accommodation are, effectively, zero and they are facing very difficult financial circumstances. In that context, the time spent preparing for this matter yields some level of prejudice.

[19] The Applicant has disputed that contention and I have taken into account what he has said. However, in the circumstances of this matter, it is a lengthy delay and the particular circumstances being faced by the Respondent at the current time are significant and when the overall circumstances are considered, I am satisfied that there is a level of prejudice that would arise for the Respondent in this matter. And in the circumstances, that is a matter that weighs against the Applicant.

[20] In terms of the merits of the application, in cases such as this where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

[21] Considering the merits in this matter the facts are these. The Applicant worked in the restaurant; he was the head chef. The restaurant has closed as a result of COVID-19 restrictions. There was a dispute about this but there are allegations related to a dispute about the operation of JobKeeper and the taking of annual leave.

[22] It does seem common ground that, while the Applicant had filled in an employee nomination form for JobKeeper, that he was not on JobKeeper because the Respondent was not sure if they qualified at the time that he was made redundant.

[23] In the circumstances where the restaurant is closed, has been closed for some time, and will continue to be closed for some time, based on COVID-19, I accept the evidence of the Respondent that it is still closed. As the Applicant was a head chef in the restaurant the fact that his job is no longer required would hardly seem to be a remarkable finding.
While I am not making that finding to the extent that that is a key issue in contesting whether there is genuine redundancy, that element of his case is weak.

[24] As to whether there was consultation within the meaning of the Hospitality Industry (General) Award 2020, which covers the employee, the position is less clear. It is not apparent that there was consultation that would meet the standard that is provided for in the relevant provision of the consultation clause in that Award. However, in the circumstances, it may be that element of the process was not properly followed, in which case, there would seem to be a prospect that it would be found to be not a genuine redundancy for that reason.

[25] What I have just been through is really a preliminary assessment of the merits and certainly not a determination, but it seems to me that the Applicant’s claim is, on a preliminary assessment basis, not without merit. That is not to suggest that it would succeed, \but I am satisfied there is at least some merit which would give the Applicant justifiable reason to pursue his unfair dismissal claim. And in the circumstances, that is a matter that weighs in favour of the Applicant.

[26] As to fairness as between the Applicant and other persons in a similar position., cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus, ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees and the employer responding to an unfair dismissal application.

[27] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I have, therefore, considered this to be a neutral consideration.

[28] In conclusion, statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that the right should be exercised promptly so as to bring about certainty. Time limits set are to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly. Otherwise, except in exceptional circumstances, the right to bring the action will be lost. A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period.

[29] Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period.

[30] As I have indicated, the consideration as to the reason of the delay is a matter that weighs against the Applicant as is a consideration as to when the Applicant first became of the dismissal after the date took effect. As is action taken by the Applicant in dispute of his dismissal. That is, all of those factors weigh against the Applicant. As to prejudice, I am also satisfied that that weighs against the Applicant. As to the merits of the application, that is a factor that weighs in favour of the Applicant and as to fairness between the Applicant and other persons in a similar position, that is a neutral consideration.

[31] In all of the circumstances, while the consideration of the merits of the application weighs in favour of the Applicant, it is not of such significance that, in my view, taking all of the matters into account, that I am satisfied that there are exceptional circumstances.

[32] In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore, there is no basis on which I consider that I should exercise my discretion to extend the time allowed for making the application. An extension of time is, therefore, refused and the application for an unfair dismissal remedy, made by the Applicant, is dismissed and an order to that effect was separately issued in PR721303.

COMMISSIONER

Appearances:

Mr G. Nair on his own behalf
Mr A. Halim and Mrs H. Halim for the Respondent

Hearing details:

2020
Melbourne
27 July

Printed by authority of the Commonwealth Government Printer

<PR721410>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]