Gorav Puri v Rydges Hotels Limited

[2023] FWC 936

[2023] FWC 936

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gorav Puri
v

Rydges Hotels Limited

(U2023/2100)

DEPUTY PRESIDENT COLMAN MELBOURNE, 20 APRIL 2023

Application for an unfair dismissal remedy – whether to extend time – application dismissed

1. Gorav Puri (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Rydges Hotels Ltd (respondent) objects to the application because it was filed out of time. Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant’s employment was terminated on 13 February 2023. The 21-day period ended on 6 March 2023. Mr Puri’s application dated 14 March 2023 was lodged in the Commission on 15 March 2023. In order for Mr Puri’s application to proceed, he requires the Commission to grant an extension.

1. The Commission does not have a general discretion to extend the period within which to lodge an unfair dismissal application. Rather, the Act allows the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: 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. I will consider each of these matters as they pertain to the present application.

1. The applicant submitted that the reason for the delay in lodging his application (s 394(3)(a)) was that he was overseas for medical reasons, that he had been taking medication and receiving treatment for severe depression, anxiety, and stress, and that his medication made him sleepy. The applicant further stated that at the time of his dismissal he was in a small village in India and did not have access to email or the internet. He had also been advised by his doctor to rest in bed because of backpain. The applicant said that it was only when he returned to Australia on 5 March 2023 that he saw the email message from the respondent that advised him of his dismissal. He said that he had been unaware of the Act’s requirement that unfair dismissal applications be lodged within 21 days after the dismissal took effect.

1. The respondent contended that the applicant’s reasons for delay should not be accepted. It said that the applicant had gone on sick leave on 15 December 2022 and that on 26 January 2023, two weeks after his medical certificate had expired, he was directed to provide a further certificate explaining when he could return to work. On 2 February 2023, the applicant replied, stating simply that he was unwell. On 3 February 2023, the respondent emailed the applicant asking him to show cause why he should not be dismissed and further directing him to provide the required certificate. On 7 February 2023, the applicant replied, stating that he was unwell, that he had now travelled to India, and that he had hurt his back. He attached a certificate from a doctor which recorded his treatment for backache but gave no indication of when he would return to work. On 13 February 2023, the respondent sent the applicant an email attaching a letter terminating his employment for failing to follow lawful and reasonable directions.

1. The Act does not specify what types of reasons might speak in favour of an extension of time however decisions of the Commission have referred to an acceptable reason. I am not satisfied that there is such a reason in this case. First, even if it is accepted that the applicant did not have email or internet access for most of his time in India, which was spent in a small village, it is clear that he did have email and internet access on 7 February 2023, when he sent a message to the respondent. The applicant explained that he visited a city that day. He did not explain why he did not visit the city on other days, particularly when he had been told that the company was considering terminating his employment. Secondly, the applicant has not explained his failure to lodge the application promptly when he returned to Australia, other than to say that he was not aware of the 21-day lodgement requirement. The Commission’s website contains ample information about unfair dismissals, including the 21-day lodgement requirement. The applicant’s unawareness of this requirement is not an acceptable reason for delay. Thirdly, I do not accept that the applicant’s mental health or backpain prevented or seriously impeded the lodgement of his application. This has simply not been substantiated. The applicant’s mental health did not prevent him from travelling abroad. Neither his mental health nor his backpain prevented him from returning home. I consider that there was no good or acceptable reason for the delay. This weighs against an extension of time in this case.

1. In relation to the consideration in s 394(3)(b), I accept that the applicant did not read the respondent’s letter of dismissal until 5 March 2023. However, he should have been expecting the respondent to dismiss him when he failed for a second time to follow its direction to provide a certificate indicating when he could return to work. The consideration in s 394(3)(b) weighs in favour of an extension, but I afford it little weight in the circumstances.

1. The matters in ss 394(3)(c), (d) and (f) are neutral considerations: the applicant did not claim to have taken other action to dispute his dismissal; in my view there is no prejudice to the employer that is relevant to an extension of time; and there are no matters relevant to fairness between the applicant and other people.

1. As to the merits, the applicant stated that his dismissal was unfair because during his employment he was overworked, bullied, and abused by the area chef, and that these things contributed to his poor mental health for which he should receive compensation. The respondent said that the dismissal was not unfair because the applicant went on sick leave in December 2022, failed to engage with its efforts to understand his problem and when he might return to work, and failed to follow its lawful and reasonable directions to provide an appropriate medical certificate. Although he claimed to be too sick to work, the applicant was able to travel to and from India, which cast doubt on the reasons for his absence from work. The merits of the application would depend on factual findings made at the final hearing. Based on the information before me, I consider that the applicant has a weak but arguable case to which the respondent has a plausible defence. I consider the merits to be a neutral consideration.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking account of s 394(3), I am not satisfied that there are such circumstances in this case. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

G. Puri for himself
A. McDowall for the respondent

Hearing details:

2023
Melbourne
20 April

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