Harvinder Singh v Tread Group Pty Ltd

[2021] FWC 6113

[2021] FWC 6113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harvinder Singh
v
Tread Group Pty Ltd
(U2021/7534)

DEPUTY PRESIDENT DEAN CANBERRA, 14 OCTOBER 2021

Application for an unfair dismissal remedy – extension of time refused – application dismissed.

[1] This decision concerns an application by Mr Harvinder Singh (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

[2] There is a dispute as to whether the Applicant resigned or was dismissed. Nonetheless it is common ground that the Applicant ceased employment with Tread Group Pty Ltd (the Respondent) after he last performed work on 29 July 2021. Section 394(2) of the Act states 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 pursuant to s 394(3). The application for an unfair dismissal remedy was made on 24 August 2021 and is therefore 5 days out of time. Accordingly, I must decide whether an extension of time should be granted.

[3] At the hearing on 13 October 2021, the Applicant appeared on his own behalf and Mr A Singhal appeared for the Respondent.

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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 nor unprecedented, nor even very rare.¹ Exceptional circumstances may 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 can be considered exceptional.²

[5] Section 394(3) 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.

[6] The 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. I now consider these matters in the context of the application.

Reason for the delay

[7] 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 an 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

[8] The Applicant advanced several reasons for the delay in lodging the application. In essence, those reasons were that:

a. he was under significant pressure after the dismissal and was affected by his own ill health and that of his daughter;

b. he was waiting for information from the Respondent regarding his request for relocation; and

b. he has no understanding of the law and is not aware of the time limit for filing the application.

[9] Having considered the evidence and submissions made by the Applicant, I find that the reasons provided by the Applicant do not constitute an acceptable reason for the delay. I do not accept that an unspecified medical condition of the Applicant and his family members had incapacitated him to such an extent as to render him incapable of making an application for an unfair dismissal remedy. In particular, he was able during this period to communicate frequently with the Respondent. It is also well established that ignorance of statutory timeframe is not an acceptable reason for a delay in making an unfair dismissal application.

[10] I am not satisfied that any of the matters relied upon by the Applicant as reasons for the delay, individually or collectively, prevented him from making the application within time. The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances. 

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

[11] The Applicant says he became aware of the cessation of his employment two weeks after his last day of work, being 28 July 2021, when he found an email from Mr James, the General Manager, in his spam email box confirming acceptance of his verbal resignation. The Applicant contends he was waiting to be notified of a transfer to another site, notwithstanding he had been advised prior to his last working day that a transfer was not available.

[12] Overall, this criterion does not weigh for or against a finding that there are exceptional circumstances.

Action taken to dispute the dismissal

[13] There is no dispute that the Applicant had engaged in several exchanges of email correspondence with the Respondent in which the Applicant sought other work opportunities with the Respondent. He did not, however, dispute the cessation of his employment. This weighs against a finding that there are exceptional circumstances.

Prejudice to the employer

[14] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[15] The Act requires me to take into account the merits of the application in considering whether to extend time.

[16] There is factual dispute as to whether the Applicant was dismissed from his employment or whether he resigned. Mr James, being the person to whom the Applicant was said to have given his resignation, gave evidence on behalf of the Respondent. He said that the Applicant advised him that if a transfer to a location in Phillip was not forthcoming, he would resign. He advised the Applicant that a transfer to Phillip was not available, but did offer him a transfer to Tuggeranong, which was around 9 minutes away. The Applicant rejected this offer. On 28 July 2021 Mr James accepted the Applicant’s resignation and confirmed this in an email to the Applicant. They discussed the arrangements for a farewell lunch for the Applicant which took place the following day. After the lunch the Applicant collected his tools and left the premises. He did not return to work after that time.

[17] In the absence of tested evidence it is not possible to make any firm or detailed assessment of the merits. However, given the evidence of Mr James outlined above, I consider that the merits weigh slightly against an extension of time.

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

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

Conclusion

[19] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

H Singh on his own behalf.
A Singhal, for Tread Group Pty Ltd.

Hearing details:

2021.
By telephone:
October 13.

Printed by authority of the Commonwealth Government Printer

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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].