Jatinderpal Singh v

[2025] FWC 168

[2025] FWC 168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jatinderpal Singh
v

Team Global Express Pty Ltd

(U2024/14970)

COMMISSIONER YILMAZ MELBOURNE, 17 JANUARY 2025

Application for an unfair dismissal remedy – application lodged out of time – application dismissed.

1. Mr Jatinderpal Singh (the Applicant) lodged a s.394 application under the Fair Work Act 2009 (the Act) for unfair dismissal remedy in relation to the termination of his employment with Team Global Express Pty Ltd (TGE or the Respondent). 

1. Mr Singh commenced employment as a driver on 23 April 2018. His employment was terminated on 18 October 2024 by TGE on the grounds of misconduct. TGE submit that it considered Mr Singh’s period of unpaid absence of more than 5 months, his failure to return to work as directed and failure to commit to a firm return date. The dismissal followed a period of correspondence between the parties including a show cause process.

1. This application was lodged with the Commission on 12 December 2024, 34 days after the 21-day time limit. TGE submit the application is out of the statutory 21-day time limit by 34 days and accordingly the application ought to be dismissed.

The extension of time application   

1. An extension of time will only be granted in exceptional circumstances. Exceptional circumstances to satisfy an extension of time 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]

1. Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the following must be taken into account to determine whether there are exceptional circumstances:

(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.

1. 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 and whether the Applicant was aware of the dismissal after it took effect

1. 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]    

1. Mr Singh submits that he was in India looking after his dying mother when he was dismissed. He submits that she passed on 6 November 2024, but he stayed on for the funeral and rituals. He submits that he filed the application on his return to Australia. The reason for the delay was that the “grief, stress and responsibilities of organising her funeral and performing the associated rituals left me unable to focus on lodging my claim within the 21-day time frame. Once I completed these obligations and regained some stability in my life, I lodged my application as soon as I could.” [4]  Mr Singh acknowledges the lateness of the application, and he was evidently aware of the dismissal as he had corresponded with the employer by email while absent from work. Copies of the correspondence between the parties was tendered into evidence.[5]  

1. During the hearing Mr Singh confirmed that he returned to Australia on 7 December 2024 but filed the application on 12 December 2024. Mr Singh contends that while he was quick to respond to his employer by email while overseas and in Australia, and capable of applying for jobs which he had no difficulty with, the filing of the unfair dismissal application was, in his view, more complex. Consequently, he submits that he was unable to make the application in a timely manner. Mr Singh added during the hearing that his delay of 5 days after his return to Australia was due to his family responsibilities including the fact that he has two autistic children in the home. I observe that these additional reasons were not referred to in either the Form F2 application or the written submissions prepared for the hearing. 

1. The Respondent submits that the Applicant failed to provide any evidence to substantiate the reason for the delay.[6] It further refers to the various communication received from Mr Singh, including an application for employment with TGE and corresponding communication on 9 December 2024.[7] It submits that Mr Singh had capacity to communicate in writing and apply for positions, therefore the submission that he was overtaken by grief, stress and responsibilities  and his capacity to file an application was affected cannot hold any weight. While the Respondent acknowledges the personal circumstances for the absence from employment, there is no reason credible reason for the delay.  

1. Having considered Mr Singh’s reasons for the delay, I do not agree that his reasons satisfy the requirements of a credible reason(s) for delay to add weight to exceptional reasons to extend time. Mr Singh took and had approved separate periods of unpaid leave since 24 April 2024. In this time, he promptly communicated with his employer either to request additional unpaid time in a timely manner, or to respond to inquiries from his employer. It is also during this time that he was aware that his employer was increasingly becoming concerned about him not providing a more definitive date for his return to work, all the while, his mother was terminally ill. This level of pressure knowing his employment may be terminated did not prevent Mr Singh’s capacity to communicate, despite his personal circumstances.  Yet despite this, and the dismissal taking effect on 18 October 2024, the application was not made on or around 8 November 2024 (the 21-day deadline for lodging his application).  Mr Singhs’ mother passed away on 6 November, the application was not made until 12 December 2024, 55 days after the dismissal. I observe that no evidence in support of the contentions regarding capacity was tendered and the reasons of tending to ceremonies or needing stability have no evidentiary support.  

1. Mr Singh’s trip to India was for a very unfortunate situation, and no doubt his experience entailed a period of grief and stress. But the Act provides for a time limit of 21 days and extensions are not made lightly.  Even where there is evidence of hardship and misfortune it will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their application.[8] Mr Singh has not established that he was prevented from filing his application for 55 days after his dismissal. Further, Mr Singh’s submission that the application is more complex than an application for employment or the various communications had with the Respondent was not supported with evidence to weigh towards an extension of time. An assessment of the application made by Mr Singh shows no complexity, and certainly no complexity compared to an application for employment.

1. While the reason for the delay is a consideration, it is only one of the factors that must be weighed up in assessing whether, overall, there are exceptional circumstances.[9] My consideration of the balance of factors follow.

Action taken to dispute the dismissal

1. Mr Singh submits that he challenged his dismissal with a follow-up email. On 18 October 2024, after receiving the letter of termination, Mr Singh replies acknowledging the dismissal and again requesting a further period of authorised unpaid absence but tentatively until 7 November 2024 or in the alternative the prospect of re-employment on his return to Australia.[10]  A further email of 5 December 2024 requests re-employment on return to Australia indicating his return to Australia that weekend.[11] These submissions do not show any challenge to the dismissal therefore this consideration does not add any weight in favour of an extension of time.

Prejudice to the employer

1. Mr Singh submits that the delay has not caused disadvantage or unfairness to the employer, particularly in light of their awareness of the reason of his absence from work.  The Respondent contends prejudice due to the delay. I do not agree there is evidence of prejudice, but I also accept an absence of prejudice is not a basis for discretion to grant an extension. [12] Therefore, this is a neutral consideration.

Merits of the application

1. Mr Singh submits that his dismissal was unfair because he had genuine compassionate reasons for his absence. Having commenced as a casual and converted to full-time in April of 2018, he submits that he had an impeccable work record. In addition, he requested a flexible working arrangement which was denied by his employer. He submits that he was the sole carer for his mother with no additional support, all of which his employer did not take into consideration to grant further leave of absence on compassionate grounds.[13] 

1. Mr Singh tendered into evidence an email dated 7 August 2024 to his employer requesting a flexible working arrangement under s.65 of the Act comprising of 3 months of unpaid leave to care for his mother in palliative care.[14] He further tendered a medical report from Fortis Hospital dated 6 September 2024 describing the medical circumstances facing Mr Singh’s mother. I observe that the report is directed to “whom it may concern,” does not make reference to Mr Singh as the close family member required to provide support to the patient and advises that the period of palliative care is for a period of at least 3 months.[15] The response from TGE dated 16 September 2024 denies the flexible working arrangement request  on the grounds that no end date is identified. The same correspondence states that Mr Singh was on annual leave from 25 March until 24 April and on unpaid leave for a period of more than 4 months and he now requests a further unpaid period without specifying an end date. It advises that an indefinite period cannot be approved, but a further one week was granted due to conclude on 20 September 2024.[16] A show cause letter dated 11 October 2024 was tendered,[17] Mr Singh provided a response to TGE on 15 October 2024 reporting on the progress of his mother’s treatment and indicating that he will require at least one week past 31 October, should his mother’s prognosis meet certain requirements.[18]     

1. The Respondent submits that the dismissal arose due to a failure to comply with a direction to confirm his intention to return to work, resulting in cost and difficulty to meet operational requirements because of Mr Singh’s absence.   

1. There is no denying that Mr Singh was placed in a difficult position to care for his terminally ill mother in India and this presented difficulty to provide a firm return date on the basis that he resolves all of his obligations. This, however, must be balanced by the requirements of his employer to make appropriate provision to cover an employee’s absence that had no entitlement to paid leave; in consideration it also made available separate periods of unpaid leave. It is also evident that some of the facts on which the parties rely are contested and therefore the merits of the dismissal is anticipated to be highly contested. The Respondent raises concerns about the cost and logistics associated with the absence from work with no clear end date and the Applicant contends that his absence caused no such issues. For the purposes of these proceedings, this contest cannot be resolved. The Respondent is not a small employer and an unpaid absence of six months was accommodated. As to whether the alleged cost and other complexities were valid to their decision to bring the employment to an end requires evidence and its assessment on an objective basis. No clear view can be formed as to whether the merits weigh in favour of the Applicant or Respondent. Therefore, I consider merit to be a neutral consideration on the basis that the evidence is limited and contested. 

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

1. Mr Singh relies on his description of unfairness with an emphasis on his lack of family support. The Respondent submits that it accommodated the requests for unpaid leave often on short notice and for an accumulated period of 6 months before the dismissal.   

1. Given the submissions which do not adequately deal with any cases of fairness between persons in a similar position to Mr Singh, I find this consideration is a neutral factor.

Conclusion on extension of time

1. The bar for an extension of time is a high one requiring the Applicant to demonstrate exceptional circumstances in relation to the factors to be considered in ss.394(3) (a) – (f) of the Act.

1. Having considered each of the required matters in s.394(3) the reason for delay individually and/or the collective neutral factors fail as exceptional circumstances to justify an extension of time.

1. I have considered the submissions and material submitted by the parties and taken them into account in my assessment of whether I can be satisfied of exceptional circumstances to justify an extension of time. As either a single matter or a combination of the factors, I am required to take into account my findings in relation to the considerations in s.394(3). I do not find that there is one or a combination of considerations that weigh in favour of an extension of time. I have concluded that merit, prejudice and fairness to be neutral considerations and reason for delay, awareness of the date of effect of the termination and action taken, not to be in favour of an extension. Therefore, I am not satisfied that there are exceptional circumstances to grant an extension of time.

Order and disposition

1. Mr Jatinderpal Singh’s application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

J Singh, Applicant
S Evans and D Langridge for the respondent.

Hearing details:

2025.
Melbourne (via Microsoft Teams):
January 14.

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[2] Ibid.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[4] Applicant’s Outline of Argument at 4.

[5] Applicant’s Documents E1 – E10.

[6] Respondent’s Outline of Submissions at 16.

[7] Witness Statement of Michelle Males at 12-14 and attachments MM-05 and MM-06.

[8] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].

[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[10] Applicant’s Documents E6 and E7.

[11] Applicant’s Document E9.

[12] CFMMEU v Forever New Clothing Pty Ltd (2022) FedCFamC2G 366, [51]; Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].

[13] Applicant’s Statement of Evidence.

[14] Applicant’s Document E1.

[15] Applicant’s Document E2.

[16] Applicant’s Document E3.

[17] Applicant’s Document E4.

[18] Applicant’s Document E5.

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