Gursahib Singh Sidhu v 5G Network Operations Pty Ltd
[2023] FWC 3294
•19 DECEMBER 2023
| [2023] FWC 3294 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gursahib Singh Sidhu
v
5G Network Operations Pty Ltd
(U2023/10752)
| COMMISSIONER LIM | PERTH, 19 DECEMBER 2023 |
Application for an unfair dismissal remedy – Extension of time – Not granted
This decision concerns Mr Gursahib Singh Sidhu’s application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).
Mr Sidhu was employed as an Embedded Support Engineer with 5G Network Operations Pty Ltd (Respondent). Mr Sidhu was terminated for performance issues on 2 October 2023. Mr Sidhu lodged his application with the Fair Work Commission on 2 November 2023.
Section 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows.
In Mr Sidhu’s case, the period of 21 days ended at midnight on 23 October 2023. His application is 10 days out of time.
Mr Sidhu seeks a further period for his application to be made under s 394(3). The Respondent opposes this request.
The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) must be taken into account.
I conducted a hearing on 15 December 2023. Mr Sidhu represented himself and gave evidence. Permission was granted to Mr Martin Alden, a lawyer, to represent the Respondent. The Respondent did not lead any witnesses.
Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and accordingly there is no basis to grant an extension of time. Consequently, Mr Sidhu’s application is dismissed.
The detailed reasons for my decision are outlined below.
Evidence and submissions
Mr Sidhu submits that his application was lodged out of time for the reasons listed below.
Lack of knowledge about the law
Mr Sidhu gave evidence that he was not born in Australia and moved to Australia in 2015. He submits that he has little knowledge of Australian laws.
Contacting Circle Green and Legal Aid
Mr Sidhu says that he attempted to contact Circle Green and Legal Aid for advice on his case. In support of this, Mr Sidhu tendered his call log from 29 October 2023 to 2 November 2023. The call log shows that on 1 November 2023, Mr Sidhu made a phone call to Circle Green and a phone call to Legal Aid.[1]
Mr Sidhu says that he attempted to call Circle Green and Legal around the 22 October 2023, however, did not tender any call log to support this.
Mr Sidhu also produced an email dated 2 November 2023 from Circle Green, confirming an advice appointment for 8 November 2023.[2]
Caring responsibilities
Mr Sidhu submits that part of why he lodged his application late is because his two young children were sick, and he needed to care for them.
In support of this, Mr Sidhu produced the following:
Prescription records from his family medical centre that show that his son was prescribed medication for eczema on 15 September 2023 and amoxicillin on 26 October 2023.[3]
Health Engine records of medical appointments on 15 September 2023, 1 November 2023 and 15 November 2023.[4]
During the hearing, Mr Sidhu gave evidence that the prescription of amoxicillin was to treat his children’s flu. Mr Sidhu says that his children started showing symptoms two to three days before they received the prescription on 26 October 2023.
Moving house
Mr Sidhu also submits that a reason why he lodged his application late is because the lease on the property where his family were living ended. This meant that his family needed to move house.
Mr Sidhu gave evidence during the hearing that his family moved house on or around 10 October 2023, and that it took approximately two days to move.
Should an extension of time be granted?
Under s 394(2) and (3) of the Act, 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.
It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[5] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]
In determining whether there are exceptional circumstances, I must take into account the criteria in s 394(3):
(a)the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c)any action taken by the person 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 person and other persons in a similar position.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[7]
I set out my consideration of each matter below.
Reason for the delay
For Mr Sidhu’s application to have been made within 21 days after the dismissal took effect, Mr Sidhu needed to lodge it by midnight on 23 October 2023. The delay is the period commencing immediately after that time until 3 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[8]
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.[9]
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.[10]
Mr Sidhu submits that he did not know about the time-limit for unfair dismissal applications. I accept this.
I accept Mr Sidhu’s evidence that he moved house on or around 10 October 2023 and that it took two days to move house. However, this only accounts for a few days in the 21 days after he was dismissed.
I also accept Mr Sidhu’s evidence that his children were sick, and he needed to care for them. By Mr Sidhu’s evidence, however, they did not become sick until the 22 or 23 October 2023, which were the final two days of the 21-day time limit for lodgement.
Lastly, I accept that Mr Sidhu did contact Circle Green and Legal Aid on 1 November and did book an appointment with Circle Green on 2 November 2023. However, by that point, he was well outside the 21-day time limit for lodgement. Mr Sidhu did not provide evidence to support his claims that he had tried contacting Circle Green or Legal Aid at an earlier date, and I do not find that he did.
Considering the above, I find that the substantive reason for Mr Sidhu’s delay in filing his application is that he was unaware of the law. Mr Sidhu moving house and his children falling sick only account for a few days during the 21-day timeframe.
It is well established that lack of awareness about the law, without more, is not a satisfactory explanation or an indicator of exceptional circumstance.[11]
Accordingly, I find that the Applicant has not provided a satisfactory explanation for the majority of the period of the delay in making the unfair dismissal. This is a factor that weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect.
Mr Sidhu says that he was aware that the dismissal took effect on 2 October 2023. This is a factor that weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
I note my finding at [31] that Mr Sidhu contacted Circle Green and Legal Aid after the 21-day time limit had lapsed. I do not find that this constitutes action taken to dispute the dismissal. This consideration does not support a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
Mr Sidhu did not make a submission on this point. The Respondent does not submit that Mr Sidhu’s delay in lodging his application has resulted in any significant prejudice to it.
The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. This is a neutral factor in this case.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[12] Further, the primary consideration is whether Mr Sidhu has an arguable case.[13]
Mr Sidhu’s position in his Form F2 is effectively there was no valid reason for his dismissal. The Respondent submits that it had a valid reason to terminate Mr Sidhu’s employment for poor performance and Mr Sidhu was afforded procedural fairness in the termination process.
I find that this is a neutral factor in assessing whether there are exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position
The Respondent submits that it is fair to expect Mr Sidhu to have lodged his application within the prescribed 21-day timeframe that applies generally to all employees. Mr Sidhu did not make any submissions on this point.
I find that this is a neutral factor in assessing whether there are exceptional circumstances.
Conclusion
I have found that the considerations in s 394(3) of the Act in this matter are either neutral or do not support a finding of exceptional circumstances.
Having considered all the circumstances of this matter and the factors in s 394(3), I am not satisfied that there are exceptional circumstances.
As Mr Sidhu’s application was lodged beyond the initial period provided by s 394(2)(a) of the Act and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis Mr Sidhu’s application must be dismissed and an Order to this effect will be issued with this Decision.
COMMISSIONER
Appearances:
G Sidhu, Applicant
M Alden for the Respondent
Hearing details:
2023.
Perth (via Microsoft Teams)
15 December 2023
[1] Digital Court Book, p 17.
[2] Ibid, p 18.
[3] Ibid, pp 20-22.
[4] Email to Vice President Catanzariti’s Chambers, 21 November 2023.
[5] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[6] Ibid.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[8] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[11] Nulty v Blue Star Group [2011] FWAFB 975 and Miller v Allianz Insurance Australia [2016] FWCFB 5472.
[12] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[13] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].
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