Jaswinder Kumar v AHB Group Pty Ltd

[2023] FWC 2887

[2023] FWC 2887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jaswinder Kumar
v

AHB Group Pty Ltd

(U2023/10008)

DEPUTY PRESIDENT COLMAN MELBOURNE, 2 NOVEMBER 2023

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

1. Jaswinder Kumar (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). AHB Group Pty 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 7 September 2023. The 21-day period ended on 28 September 2023. The application was lodged in the Commission on 13 October 2023. In order for his application to proceed, the applicant requires an extension of time.

1. The Commission does not have a general discretion to extend time. The Act permits the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression found in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in subparagraphs (a) to (f): 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.

1. As to the reason for the delay (s 394(3)(a)), the applicant said that he was dismissed a day before he departed for India, and that he was not able to lodge his application from the village near Dharamshala where he was visiting his sick grandmother. He said that he did not have time while abroad to lodge his application, that there was poor internet connection where he was staying, that he was unaware of the 21-day lodgement requirement, and that he returned to Australia on 9 October 2023 and filed his application only several days later. I am not satisfied that these matters provide a good reason for the delay, or that they are exceptional. Unawareness of the 21-day filing requirement is not an acceptable reason for delay, nor is being busy with family or other commitments. It has not been established that the poor internet connection was so poor as to make online lodgement impossible or not reasonably practicable. Further, the application was not lodged for another four days after the applicant returned to Australia. In my view, the reason or reasons for delay weigh against an extension of time.

1. Sections 394(3)(b), (c), (d) and (f) are neutral matters: the applicant does not contend that he became aware of his dismissal after it took effect; he did not take other action to dispute his dismissal; there is no prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people. There is nothing exceptional about these matters.

1. As to the merits (s 394(3)(e)), the applicant submitted that his dismissal was unfair because he was made redundant without warning or notice on the day before he was going on leave to India. He said that he was told simply that his position had been moved offshore and that his redundancy took effect immediately. The applicant said that when he returned from India he discovered that another person had been hired to do his job. The respondent submitted that the applicant’s position was genuinely redundant because the accounts payable function was largely manual and the company had decided to automate it and move it offshore. It said that the applicant was not replaced; the company had hired a finance support consultant who did not perform any of the tasks previously undertaken by the applicant. The merits of the application would depend on factual findings made at the final hearing. Based on the information before me, the applicant has an 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 into account the matters in s 394(3), I am not satisfied that there are such circumstances in this case. Consequently, I have no power to extend time. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

P. Kumar for the applicant
R. Singh for the respondent

Hearing details:

2023
Melbourne
2 November

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