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.

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).

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.

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

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]

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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 168
Decision Date: 17 JANUARY 2025

CaseChat Overview and Summary

In the Fair Work Commission, Mr Jatinderpal Singh brought an application for an unfair dismissal remedy against Team Global Express Pty Ltd (TGE), his former employer. The application was lodged 34 days after the 21-day statutory time limit, following Mr Singh's dismissal due to extended absence and failure to provide a firm return date. The key legal issue was whether the late filing of the application could be excused under the 'exceptional circumstances' provision of the Fair Work Act 2009.

To determine if an extension of time should be granted, the Commissioner considered six factors outlined in the Act. These included the reason for the delay, whether Mr Singh was aware of the dismissal, any actions taken to dispute the dismissal, prejudice to the employer, the merits of the dismissal, and fairness in comparison to others in similar positions. Mr Singh attributed the delay to his mother's death and the associated funeral arrangements in India. However, the Commissioner found his explanation unconvincing, as he had communicated with his employer during his absence and had promptly applied for other jobs. The Commissioner also noted that Mr Singh had taken multiple periods of unpaid leave and had been aware of the employer's concerns. The evidence showed that Mr Singh's personal circumstances, while unfortunate, did not seriously impede his ability to lodge the application within the time limit.

The Commissioner concluded that none of the factors weighed in favour of granting an extension of time. The reason for the delay was not credible, and the actions taken to dispute the dismissal were insufficient. While the merits of the dismissal were contested, this did not support an extension. The employer's potential prejudice and the fairness considerations were neutral. Therefore, the Commissioner found no exceptional circumstances to justify an extension of time.

In light of the above, the Commissioner dismissed Mr Singh's application for an unfair dismissal remedy. The lateness of the application could not be excused under the exceptional circumstances provision of the Fair Work Act. The Commissioner's decision underscores the importance of adhering to statutory time limits in such proceedings and the high threshold for extensions.

Orders