Jasbir Singh v Toll Group T/A Toll Ipec

[2017] FWC 1715

[2017] FWC 1715

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jasbir Singh
v
Toll Group T/A Toll IPEC
(U2016/15628)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 29 MARCH 2017

Application for an unfair dismissal remedy.

[1] Mr Jasbir Singh lodged an application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with Toll Group T/A Toll IPEC (Toll) which took effect on 18 November 2016.

[2] Mr Singh’s unfair dismissal application, lodged on 29 December 2016, was not made within 21 days of the date of the dismissal as required by s.394(2)(a) of the Act.

[3] Toll filed a response to Mr Singh’s application on 3 February 2016 objecting to the application on the basis that it was out of time.

[4] Mr Singh attended a jurisdictional hearing on 24 March 2017 and gave oral evidence on his own behalf in addition to his written submission.

[5] Ms Kate Alam, Employee/Industrial Relations Manager, appeared for and on behalf of Toll and Mr John Price, PUD Manager, gave evidence on his own behalf and on behalf of Toll.

[6] This decision is about whether the Commission should allow Mr Singh a further period for lodgement of his application for an unfair dismissal remedy.

[7] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[8] Section 394(3) of the Act is as follows:

“394 Application for unfair dismissal remedy

…

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

“[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.” [Endnotes not reproduced]

[10] There was no factual dispute that Mr Singh had filed his application out of time.

[11] Mr Singh’s original submission did not address the criterion set out in s.394(3). My associate wrote to Mr Singh on 21 March 2017 and Mr Singh was provided with the opportunity to file further submissions in advance of the hearing.

[12] A copy of Mr Singh’s submission was sent to Toll on 23 March 2017. At the commencement of the hearing the matter was adjourned to provide Toll a further opportunity to consider the additional submission filed by Mr Singh.

s.394(3)(a) the reason for the delay

[13] Mr Singh’s application was filed 41 days after the date of his dismissal. Mr Singh must provide a credible reason for the delay in making the unfair dismissal application. 2

[14] Mr Singh must provide a credible reason for the whole of the period that the application was delayed. 3 The Commission is required to consider the explanation of the total period of the delay, not only part of it. The delay for the purposes of s.394(3) of the Act, is the delay from the expiry of the 21 day period in s.394(2)(a) after the termination date until lodgement of the application.4

[15] In accordance with the principles summarised in paragraph [14] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. However the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and whether that reason constitutes exceptional circumstances.

[16] Mr Singh submits the reason for the delay was that he “…had not received his insurance/workcover paperwork and incident reporting”. 5 Mr Singh’s evidence was that he had attempted to make phone contact with Toll requesting the paperwork on three occasions after his dismissal, however on further questioning Mr Singh conceded that these calls had taken place prior to his dismissal. Mr Singh changed his version of this event several times throughout the hearing.

[17] Toll submits they are unaware of any such telephone enquiries being made by Mr Singh. Mr Price’s evidence was he had not received any such enquiry from Mr Singh since the time of his dismissal. 6

[18] Mr Singh annexed to his application (Form F2) a copy of email correspondence he had sent on 20 December 2016 to Ms Khanh Duong, Senior Case Manager of VIC Self Insurance, and 21 December 2016 to Ms Lay Hwa Chen, the Toll Return to Work Coordinator requesting copies of his “insurance paper work”. 7 Mr Singh’s evidence was after the three initial phone calls, he made no other enquiries to dispute his dismissal.

[19] I accept Mr Singh was not attempting to be dishonest, rather it was clear Mr Singh experienced some confusion about who he had contacted by which means and when. However from the evidence before me I cannot be certain that Mr Singh contacted anyone from Toll other than to make enquiries about his Workcover claim by email on 21 December 2016.

[20] Mr Singh was unable to provide reasons as to why the absence of such documentation had contributed to the delay of lodging his application. I note his enquiries were not made until more than 21 days after the dismissal. Mr Singh provided no reasons as to why he was reliant on this documentation for the completion and filing of his application. Therefore, I am not satisfied the absence of the provision by Toll of the insurance paperwork being sought by Mr Singh is a reasonable explanation for the delay in lodging his application.

[21] During the hearing Mr Singh sought to rely on a certificate of capacity he’d obtained at an appointment on 21 November 2016 as evidence that he was suffering from stress as a result of the dismissal. It was for this reason he stayed at home in bed and was unable to make his application.

[22] The certificate provided by Mr Singh makes no reference to mental health functionality by way of incapacity or otherwise. Rather the certificate states that as of 21 November 2016 Mr Singh was suitable for employment and remained so until 20 December 2016. 8 It is reasonable that if Mr Singh was fit for employment 3 days after his dismissal, he would have been reasonably fit enough to make an application within the prescribed time and up until 20 December 2016.

[23] Mr Singh’s evidence included a second medical certificate dated 19 January 2017. The medical certificate states “Mr Singh has been suffering from anxiety and depression for the last few months”. 9 I accept that Mr Singh may have been suffering from anxiety and depression however the medical evidence does not demonstrate an incapacity to lodge an application within time or earlier than the date Mr Singh did eventually lodge his application.

[24] Mr Singh also relies on the reason that his termination letter from Toll did not provide information alerting him that he had 21 days to lodge an unfair dismissal application and for this reason he didn’t know he only had 21 days. 10 Mr Singh’s evidence was that he only became aware of this information when he was visited at his home by a friend.

[25] It has been well established in decisions in this Commission that ignorance of the time for filing an unfair dismissal application is not considered to be unusual, special or uncommon. 11 Further, I do not consider it to be the responsibility of Toll to provide in a termination letter to an employee advice to the effect of which Mr Singh is relying on as part of the reason for the delay in lodging his application. It was reasonably open to Mr Singh to inform himself of the available options for disputing his dismissal.

[26] Mr Singh had union representation at the meeting prior to his dismissal and available to him at the time of his dismissal. Mr Singh’s oral evidence was that he had spoken with his representative and was told that they would not represent him in his unfair dismissal claim, however it is unclear as to when he received this advice.

[27] Mr Singh had also made contact with the AWU sometime after his dismissal took effect. Although it is not exactly clear from his evidence when this was, it was clear that Mr Singh was capable of taking steps to make inquiries as to what his rights may have been.

[28] The reasons provided by Mr Singh for the delay in making his application are not unusual, special or uncommon. I am not satisfied that Mr Singh has provided exceptional circumstances for the whole of the delay. This weighs against a finding of exceptional circumstances.

s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[29] On 11 November 2016 Toll wrote to Mr Singh stating that they were considering terminating his employment and provided Mr Singh with an opportunity to respond. 12

[30] On 15 November 2016 Mr Singh attended a meeting along with his union representative and expressed his willingness to continue on in his employment in any position made available to him. 13

[31] Mr Singh’s submission was on 18 November 2016 he was made aware of his termination. 14 Mr Singh was provided with a letter confirming his termination of employment15 on that same day and he had the full 21 days from the date of termination to lodge his application. This weighs against a finding that there are exceptional circumstances.

s.394(3)(c) any action taken by the person to dispute the dismissal

[32] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 16

[33] Mr Singh did nothing to pursue his claim until 41 days after he was dismissed. Mr Singh took no other action to dispute his dismissal. This weighs against a finding that there are exceptional circumstances.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[34] Prejudice to the employer will go against the granting of an extension of time. There were no submissions made relevant to this criterion. I consider this criterion to be neutral.

s.394(3)(e) the merits of the application

[35] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 17 it said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[36] Mr Singh commenced employment as a PUD Truck Driver in 2011. Mr Singh sustained a number of back injuries at work between May 2011 and April 2013 which restricted his capacity to perform the inherent requirements of his substantive position. 18

[37] In 2013 Mr Singh was transferred to the position of fleet controller in the radio room performing administrative duties as part of his return to work plan. 19

[38] Mr Price’s evidence was the role in the radio room was created as a temporary role to accommodate Mr Singh whilst he was on light duties and the budget could no longer support the temporary role.

[39] Mr Singh’s evidence was that he understood the role to be a permanent transfer, not one that was temporary.

[40] On 16 August 2016, Mr Singh sustained his 4^th back injury whilst getting up from his chair. 20 Mr Singh continued to work in the control room position with modified duties until he underwent the independent medical assessment.

[41] On 7 November 2016 Mr Singh attended an independent medical examination and was deemed not fit to return to his position as a truck driver. The Independent Medical Report states Mr Singh had advised the examiner that he was aware there were currently one too many persons in his work area. 21

[42] Mr Singh was provided with a copy of the medical assessment report and met with Toll representatives on 15 November 2016 at which time he was advised Toll were considering terminating his employment as he was unable to perform the inherent requirements of his substantive position. 22 Mr Singh did not dispute the findings of the report and provided a copy of his curriculum vitae as part of an expression of being interested in an alternative position should one be available.23

[43] Toll submit after conducting a search for suitable alternative positions taking into consideration Mr Singh’s capacity and capabilities, skill set and qualifications, he was advised there were no alternative positions available. 24 Mr Singh’s employment was subsequently terminated.25

[44] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 26 for the purpose of determining whether to grant an extension of time to the applicant to lodge an application.

[45] There are a number of facts in dispute in this matter. I have therefore adopted the reasoning outlined above. I am not able to make a final assessment of the merits of the matter and accordingly, I find the criterion to be neutral.

s.394(3)(f) fairness as between the person and other persons in a similar position.

[46] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 27 as follows:

“[29] Turning to the question of 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 an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”

[47] There were no submissions that there is, or has been, any persons in a similar position to Mr Singh. I find the criterion to be neutral.

Conclusion

[48] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Mr Singh’s application to be made. Mr Singh has not provided a reasonable explanation for the whole of the delay. Mr Singh’s application for an extension of time is dismissed and his unfair dismissal application is therefore dismissed.

[49] An order 28 dismissing Mr Singh’s application will accompany this decision.

COMMISSIONER

Appearances:

J Singh on his own behalf

K Alam for Toll Group T/A Toll Ipec

Hearing details:

2017

Melbourne

24 March

 1   [2011] FWAFB 975.

 2   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010)197 IR 403 at 408-9.

 4   Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37].

 5   Form F2 – Unfair Dismissal Application, p. 3

 6   Exhibit R2

 7   Ibid

 8   Exhibit A3

 9   Exhibit A1

 10   Exhibit A2

 11   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14];

 12   Exhibit R2, Annexure B

 13   Ibid, Annexure C

 14   Exhibit A2

 15   Exhibit R2, Annexure C

 16   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 17   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 18   Exhibit R2, Annexure C

 19   Exhibit R1

 20   Exhibit R2, Annexure A

 21   Ibid

 22   Exhibit R2

 23   Ibid

 24   Ibid

 25   Ibid, Annexure C

 26   Kyvelos v Champion Socks Pty Ltd, Print T2421, [14].

 27   [2015] FWC 8885 at [29].

 28   PR591317.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR591318>