Hardev Girn v Coles Supermarkets Australia Pty Ltd
[2024] FWC 3433
•11 DECEMBER 2024
| [2024] FWC 3433 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hardev Girn
v
Coles Supermarkets Australia Pty Ltd
(U2024/13066)
| COMMISSIONER FOX | MELBOURNE, 11 DECEMBER 2024 |
Application for an unfair dismissal remedy – no exceptional circumstances demonstrated – extension of time not granted – application dismissed.
On 31 October 2024, Mr Hardev Girn made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Girn’s application is Coles Supermarkets Australia Pty Ltd (the Respondent).
Mr Girn alleged that his dismissal took effect on 9 October 2024. Mr Girn filed his application on 31 October 2024, one-day outside the 21-day timeframe required to make an application for an unfair dismissal remedy.[1]
For Mr Girn to proceed with his remedy for unfair dismissal application, it is necessary that time be extended until 31 October 2024, pursuant to s.394(2)(b) of the Act. The Commission can only grant an extension of time if exceptional circumstances exist, taking into consideration the factors outlined in s. s.394(3) of the Act.
For the reasons given below, in considering these factors, I am not satisfied that Mr Girn has demonstrated that there are exceptional circumstances and therefore do not extend time for Mr Girn to make his application.
Things I Must Consider
The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.
Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
a. the reason for the delay;
b. whether the person first became aware of the dismissal after it had taken effect;
c. any action taken by the person to dispute the dismissal;
d. prejudice to the employer (including prejudice caused by the delay);
e. the merits of the application; and
f. fairness as between the person and other persons in a similar position.
The meaning of “exceptional circumstances” was considered and summarised by the Full Bench 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.”
Background
Mr Girn commenced employment with the Respondent in 2014. His employment was terminated effective 9 October 2024. He was advised of his termination verbally on 10 September 2024 and then in writing with a letter dated 11 September 2024.[3]
The matter was listed for Determinative Conference/Hearing on 6 December 2024. I determined that a Hearing was appropriate in this matter. Mr Matt McLean appeared for the Respondent. Mr Girn was represented by Mr Nicolas Muniz Saavedra of Counsel, who was granted permission to represent Mr Girn pursuant to s.596 of the Act.
The parties filed submissions and witness statements in accordance with Directions issued on 25 October 2024. My Chambers compiled this material into a ‘Digital Hearing Book’ which was distributed to the parties prior to the Hearing. On 5 December 2024, Counsel for Mr Girn filed further material, including written submissions and a witness statement as well as two attachments to the witness statement. At the Hearing, the Respondent stated that it did not have any objections to this material being admitted into evidence. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Hearing Book, including the additional submissions of Mr Girn filed 5 December 2024.
In submissions filed on 25 November 2024, Mr Girn submits that his application was filed one-day late because:[4]
1.He miscalculated the 21-day period and believed that the 21-days commenced from the date following his dismissal, and therefore believed he had 21 days from 10 October 2024.
2.He was not in Victoria for a week prior to the deadline, which meant he did not have documents and details available to him.
Mr Girn filed additional submissions on 5 December 2024 that his application was filed one-day late, as he misunderstood the calculation of the 21 days, because:[5]
1.There was a language barrier, as English was not Mr Girn’s first language, and this led to him misinterpreting the application of the 21-day timeframe.
2.There were side effects from his medication, taken due to his injury, which caused difficultly with his comprehension.
Evidence
At the Hearing, Mr Girn gave the following evidence:
·He was aware of the 21-day timeframe to file an application but miscalculated the dates.
·He was waiting on documents from the Respondent regarding his long service leave entitlement.
·He was away for a week during the 21-day timeframe and did not have access to the documents and information he believed he needed to file his claim.
Section 394(3) Considerations
Reason for the delay
In considering the materials, there were four reasons given by Mr Girn for the one-day delay.
The first reason given was that Mr Girn miscalculated the application of the 21-day timeframe. It was his evidence that he researched his unfair dismissal application on the Fair Work Commission website around 10 October 2024 and was aware of the 21-day timeframe but miscalculated how it applied.
In Mr Girn’s submissions of 18 November 2024, he states the following:[6]
… I believe some confusion on my part may have occurred. When I read the explanation and examples on the Fair Work website regarding how the 21 days are calculated, I read the description below:
"The 21 days for lodgment does not include the date that the dismissal took effect.[4] This means that day one commences the day following the dismissal."
To me, this indicated that it would be 21 days from the day after the termination took effect (9/11/24), which meant the 10/10/24 plus 21 days. This suggested to me that the end of the day of 31/11/24 was the deadline, or at least the end of the business day of the 31/11/24.
It is Mr Girn’s submission that there was ‘confusion … on [his] part’, acknowledging that he erred in calculating the 21 days.[7] I do not consider that miscalculating the application of the 21-day timeframe constitutes an exceptional circumstance.
The second reason given by Mr Girn for the delay was that he was not in Victoria for a week prior to the 21-day deadline, and this meant he did not have relevant documents and details available to him. However, not bringing the necessary documents away with him was Mr Girn’s decision, and not one that was imposed on him. Further, there was nothing precluding Mr Girn from filing the Form F2 application within the 21-day timeframe, and then later filing additional documents once they were available to him. I therefore do not consider that not having documents available to Mr Girn, because he was ‘away for a week’ to be exceptional.
The third reason given by Mr Girn for the delay is that there is a language barrier, as English is not his first language, which resulted him miscalculating the application of 21 days.[8]
Mr Girn did not provide any evidence that language was a barrier which caused him to miscalculate the 21-day timeframe. Further, there are many applicants to whom English is not their first language, but who are able to correctly apply the 21-day timeframe. Indeed, Mr Girn had the opportunity to seek legal advice about the calculation of the 21-day period post his dismissal, especially in light of the fact that he was advised of his termination almost one-month before the dismissal took effect.
The fourth reason given by Mr Girn is that he was on medication which impacted his concentration, memory and function.[9] Mr Girn did not provide any evidence, medical or otherwise, that the side effects of the medication he was on caused difficulty with comprehension which then led him to file one-day late. In his material, Mr Girn submitted that the medication he is taking affects his ability to understand words, dates and events.[10] In the Full Bench decision of Australian Postal Corporation v Lili (Karen) Zhang,[11] it was held that any medical evidence must be sufficiently compelling to be given weight for an extension of time application.
There is no medical evidence before me which explains why the application could not be filed by Mr Girn by the required date, and why it was instead filed one-day late.
I consider none of the four reasons given for the delay constitute exceptional circumstances.
I therefore consider that the reason for the delay weighs against a finding that there are exceptional circumstances.
Whether aware of the dismissal after it had taken effect
It is not disputed that Mr Girn was aware that his dismissal had taken effect on 9 October 2024, and that he was aware of this from 10 September 2024.
I consider this a neutral factor.
Action taken to dispute the dismissal
Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time.
The Respondent contended that Mr Girn took no steps to dispute his dismissal, and this factor should therefore be treated as neutral.[12] Mr Girn submitted that he did not take any ‘action directly’ with the Respondent, other than researching his legal options.[13] I therefore consider this factor to be neutral.
Prejudice to the Respondent
The Respondent submitted that Mr Girn’s late application does not prejudice them in any specific way.[14]
I therefore consider this to be a neutral consideration.
Merits of the application
Mr Girn submitted that the Respondent did not have a valid reason to dismiss him due to capacity. Mr Girn further submitted that he had put forward alternative positions, in light of his injury.[15] The Respondent submitted that the material filed by Mr Girn does not clearly state why he believes his unfair dismissal was harsh, unjust or unreasonable. The Respondent further submitted it was ‘confident that it undertook a lawful process to support [Mr Girn] and accommodate his injuries’.[16] The Respondent’s position is that Mr Girn was unable to perform the inherent requirements of his role, and his employment was terminated on this basis.
Given the contested nature of the matter and the facts in dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence, particularly that which would be required to be filed by Mr Girn to substantiate his application.
Given this, I consider the merits of the application to be a neutral factor in considering whether to grant an extension of time.
Fairness as between the person and other persons in a similar position
As the Full Bench in Perry v Rio Tinto Shipping Pty Ltd noted, “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 position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[17]
Neither party made any substantive submissions, nor did they direct me to cases involving other persons in similar positions to that of Mr Girn specifically.
I consider this to be a neutral consideration.
Conclusion
In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor which weighs against, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.
Having weighed each of these factors and having considered them individually and collectively,[18] I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Mr Girn’s application for an unfair dismissal remedy is therefore dismissed, and an Order[19] to this effect will be issued with this Decision.
COMMISSIONER
Appearances:
N Muniz Saavedra of Counsel for the Applicant.
M McLean for the Respondent.
Hearing details:
2024.
Melbourne (By Video using Teams):
6 December.
[1] Fair Work Act 2009 (Cth) s.394(2)(a).
[2] [2011] FWAFB 975.
[3] Digital Hearing Book (‘DHB’) page 19.
[4] Ibid page 20.
[5] Written Submissions of Applicant filed 5 December 2024 [23]-[28].
[6] DHB page 17.
[7] Ibid.
[8] Written Submissions of Applicant filed 5 December 2024 [25]; Witness Statement of Applicant filed 5 December 2024 [30].
[9] Witness Statement of Applicant filed 5 December 2024 [29].
[10] Written Submissions of Applicant filed 5 December 2024 [24].
[11] [2015] FWCFB 5285.
[12] DHB page 74.
[13] Written Submissions of Applicant filed 5 December 2024 [30].
[14] DHB page 74.
[15] Written Submissions of Applicant filed 5 December 2024 [22].
[16] DHB page 75.
[17] [2016] FWCFB 6963 [41].
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[19] PR782340.
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