Kumar v Narymal Pty Ltd (trading as Duxton Hotel)
[2024] FedCFamC2G 137
•21 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Narymal Pty Ltd (trading as Duxton Hotel) [2024] FedCFamC2G 137
File number: PEG 238 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 21 February 2024 Catchwords: INDUSTRIAL LAW – application for an extension of time to file a general protections court application under the Fair Work Act 2009 (Cth) – extension of time granted. Legislation: Fair Work Act 2009 (Cth) ss 45, 340, 351, 361, 365, 368, 370, 550
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 2.05
Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Grech v Truck Tech [2023] FedCFamC2G 184
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 15 February 2023 Place: Perth Counsel for the Applicant: Ms J Flinn Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondents: Mr S Heathcote Solicitor for the Respondents: APX Law Pty Ltd ORDERS
PEG 238 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DINESH KUMAR
Applicant
AND: NARYMAL PTY LTD (TRADING AS DUXTON HOTEL) (ABN 71 070 068 745)
First Respondent
RIAZ MAHMOOD
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
21 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (Fair Work Act), the time within which the applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s 368 of the Fair Work Act on 26 July 2023 is extended to 20 October 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The application before the Court is an application for an extension of time for the applicant, Mr Kumar, to file a general protections court application under the Fair Work Act 2009 (Cth) (Fair Work Act). Mr Kumar was formerly employed by the first respondent, Narymal Pty Ltd, trading as Duxton Hotel (Duxton Hotel), as a chef. The Duxton Hotel terminated Mr Kumar’s employment on 8 June 2023.
On 20 October 2023, Mr Kumar filed a general protections court application and Form 2 in this Court. A certificate dated 26 July 2023 and issued by the Fair Work Commission (FW Commission) pursuant to s 368(3)(a) of the Fair Work Act was attached to the Form 2. Section 370(a)(ii) of the Fair Work Act requires that any general protections court application be made within 14 days after the day the certificate is issued, or within such further period as the Court allows. Mr Kumar’s application was filed outside of the 14-day period after the s 368 certificate was issued and he therefore requires an extension of time, which he requested in his application.
Mr Kumar filed two affidavits, affirmed by him on 18 October 2023 and 9 November 2023 respectively, in support of his application for an extension of time. Those two affidavits are the only evidence before the Court for the purposes of the extension of time application.
RELEVANT FACTUAL BACKGROUND
Mr Kumar commenced employment with the Duxton Hotel as a chef on 8 August 2008.
Mr Kumar was absent from work from 5 September 2022 and was certified as medically unfit to work from that date. It appears from the parties’ submissions that he used his accrued personal and annual leave entitlements from this date until they were exhausted, and then took unpaid leave once his paid entitlements were exhausted.
Mr Kumar completed a workers’ compensation claim form dated 1 June 2023 and provided this to the Duxton Hotel on 2 June 2023.
The Duxton Hotel terminated Mr Kumar’s employment on 8 June 2023. The Duxton Hotel provided Mr Kumar with a written notice of termination, which sets out the following reasons for terminating his employment:
We have considered the circumstances in which your employment has subsisted since you abandoned your duties about 8 months ago. Since then, we have maintained our employment relationship in the hope that you would return to work.
When it became clear to us that you would not be returning to work because of an alleged health condition, we decided to send you for an Independent Medical Assessment so that we could ascertain:
•whether there was a real medical basis for your failure to attend work;
•whether there was an appropriate treatment regime for whatever illness(s) you may have;
•the extent to which you would recover from any illness(s); and
•how long it would be before you were sufficiently recovered to return to work.
You did not attend the appointments we made for you and, instead of making yourself available during your normal working hours as would have been appropriate, you demanded several date/time changes for this appointment and attended on Friday 19th May.
We are no longer willing to persevere. It appears to us that you have no intention of returning to work, or of taking any of the steps that are necessary for that to be feasible.
In those circumstances, including the circumstances in which you abandoned your responsibilities, your extended absence, and your lack of cooperation with our attempts to get you back to work, we’ve decided to terminate your employment with effect immediately.
Mr Kumar made an application to the FW Commission, pursuant to s 365 of the Fair Work Act, on 29 June 2023. The FW Commission convened a conference on 24 July 2023 to deal with the dispute.
On 26 July 2023 the FW Commission issued a certificate under s 368(3)(a) of the Fair Work Act confirming that it was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been, or were likely to be, unsuccessful. The certificate included a notation informing Mr Kumar that he had 14 days to make a general protections court application.
Mr Kumar filed a general protections application in this Court on 20 October 2023 and sought an extension of time to file the application.
GENERAL PROTECTIONS APPLICATION
In summary, in the proposed substantive general protections application, Mr Kumar alleges that the Duxton Hotel:
(a)contravened s 340 of the Fair Work Act because:
(i)Mr Kumar exercised his workplace rights, including his right to complain about a request or requirement to work overtime, his right to take annual leave, personal leave and long service leave, and his right to lodge a workers’ compensation claim in relation to his disability;
(ii)the Duxton Hotel took adverse action against Mr Kumar by terminating his employment; and
(iii)the Duxton Hotel terminated Mr Kumar’s employment for reasons that include the exercise of his workplace rights;
(b)contravened s 351 of the Fair Work Act because:
(i)Mr Kumar has a disability;
(ii)the Duxton Hotel took adverse action against Mr Kumar by terminating his employment; and
(iii)the Duxton Hotel terminated Mr Kumar’s employment for reasons that include his disability; and
(c)contravened s 45 of the Fair Work Act because, from mid-2018, it did not allow Mr Kumar his entitlements under the Hospitality Industry (General) Award 2020 and its predecessors.
Mr Kumar alleges that the second respondent, Mr Mahmood, who was at all material times the General Manager of the Duxton Hotel, was involved in the contraventions, within the meaning of s 550 of the Fair Work Act.
EXTENSION OF TIME: RELEVANT LEGISLATION AND PRINCIPLES
Section 370 of the Fair Work Act provides:
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii)the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b)the general protections court application includes an application for an interim injunction.
Note 1:Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).
Note 2:For the purposes of subparagraph (a)(ii), in Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.
As can be seen from this extract, s 370(a)(ii) of the Fair Work Act requires that a general protections court application be made within 14 days after the day the certificate is issued, or otherwise within such period as the Court allows. Mr Kumar was required to make his application to this Court by 9 August 2023 to be within the 14-day period. Instead, Mr Kumar filed his application in this Court on 20 October 2023, which is 72 days after the expiry of the 14-day period within which he was required to make his application.
In considering whether to exercise its discretion to extend time under s 370(a)(ii) of the Fair Work Act, the Court will often have regard to the principles summarised in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300. Those principles are as follows:
1.Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2.Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
The Court’s discretion is broad and not constrained by these principles. The Court may consider any other relevant matters raised by the parties: see Grech v Truck Tech [2023] FedCFamC2G 184 at [22]-[24].
CONSIDERATION AND APPLICATION OF THE RELEVANT PRINCIPLES
Explanation for the delay
The evidence before the Court relevant to the explanation for the delay comprises evidence in relation to Mr Kumar’s mental health condition, Mr Kumar’s English language ability and the assistance Mr Kumar sought in filing his application to this Court.
Mr Kumar provided a number of short reports and medical certificates to the Court, which show that he has been receiving treatment for medical conditions and has been certified as unfit for work for various periods since September 2022. The most detailed evidence before the Court of Mr Kumar’s medical condition is a report of Dr Edward Petch dated 2 October 2023, which is an independent psychiatric medico-legal evaluation of Mr Kumar, prepared at the request of a lawyer acting on his behalf (presumably for the purposes of his workers’ compensation claim). Dr Petch expressed the view that Mr Kumar suffers from a major depressive episode which should be considered to be severe at the time of the assessment, and that there was also evidence that Mr Kumar had adjustment disorder with mixed anxiety and depressed mood. Dr Petch considered that Mr Kumar’s depression was ‘severely affecting his social and occupational functioning and is not as a result of the physiological effects of any substance’.
The evidence before the Court shows that, since receiving the s 368 certificate from the FW Commission on 26 July 2023, Mr Kumar took the following actions:
(a)On 28 July 2023 Mr Kumar contacted Circle Green, a community legal centre, to see if they could provide pro bono legal assistance. Circle Green provided him with limited legal advice about court procedures and limitation periods and advised him to contact Law Access.
(b)On or around 11 August 2023 Mr Kumar contacted Law Access.
(c)On 11 August 2023 Mr Kumar contacted the Fair Work Ombudsman and spoke with an employee of the Ombudsman in relation to his concerns that he had been underpaid during his employment at the Duxton Hotel.
(d)On 17 August 2023 Mr Kumar sent an email to the Fair Work Commission asking for advice in relation to his complaint and whether he could still make an application to the Court. The FW Commission responded advising that the Commission could not give legal advice but provided links to information accessible on the FW Commission’s website and the Court’s website.
(e)On 3 October 2023 Mr Kumar entered into an agreement with Mills Oakley, who accepted the pro bono referral from Law Access and agreed to assist Mr Kumar on a pro bono basis.
(f)The application was then filed on 20 October 2023.
Mr Kumar also gave evidence that he was assisted by an interpreter before the FW Commission and that he found his experience before the FW Commission to be ‘very upsetting and confusing’ due to his ‘limited English and lack of experience with legal procedures’.
Counsel for Mr Kumar submitted that it was open to the Court to find that Mr Kumar’s medical condition adversely impacted on his ability to adequately represent himself before the FW Commission, to prosecute the claims after the FW Commission issued the s 368 certificate as timely as he otherwise might have, to find out for himself the meaning and consequences of the certificate being issued, and to commence this proceeding without legal assistance. Counsel for Mr Kumar also submitted that suffering from a severe depressive episode and adjustment disorder over a long period of time of at least 12 months is debilitating.
Counsel for the respondents submitted that Mr Kumar has no reasonable explanation for not making his application to this Court by 9 August 2023 or for a delay of such magnitude as the one in the present case. Counsel for the respondents submitted that the explanation is inadequate for the following reasons:
(a)Mr Kumar was aware of the time limit for filing his application to this Court and this can be seen from his evidence regarding his consultation with Circle Green, in which he acknowledged he was given advice about limitation periods, and because the time limit was clearly recorded in a note on the s 368 certificate.
(b)Despite this, he did not approach Law Access until two weeks after his consultation with Circle Green, by which time the time limit had expired.
(c)Mr Kumar had an adequate opportunity to make an application but instead sat back and waited for pro bono legal assistance to become available. The unavailability of pro bono legal assistance is not a proper basis for a delay in commencing the proceeding.
(d)While Mr Kumar had a medical condition, this did not prevent him from having the capacity to file his application within time. That Mr Kumar had capacity to function despite his medical condition can be seen from his ability to attend to his day-to-day life, his ability to attend medical appointments and provide medical certificates, his ability to engage with the Duxton Hotel in relation to his employment, his ability to make a workers’ compensation claim and engage Slater and Gordon, his ability to make an application to, and attend a conciliation conference convened by, the FW Commission, and his ability to seek pro bono legal assistance and provide instructions to Mills Oakley in relation to his application to this Court.
(e)While Mr Kumar provided some evidence and made submissions about his English language ability, his language issues are referred to selectively and some of the email correspondence he sent is not reflective of a person who is struggling with English or someone who is struggling to understand what is going on and articulate a response.
The extent of the delay in Mr Kumar filing his application to this Court, being some 72 days in excess of the 14-day period prescribed by s 370(a)(ii) of the Fair Work Act is significant but not extreme.
While there are some gaps in Mr Kumar’s explanation for the delay in filing his application to this Court, on balance, when all the relevant circumstances are considered, I am satisfied that he has provided an adequate explanation for the delay. In particular, I accept, on the basis of Dr Petch’s evidence that Mr Kumar experienced a major depressive episode that severely affected his social and occupational functioning, that Mr Kumar’s medical condition impacted his ability to file an application to this Court within time. The fact that Mr Kumar was able to take some action to seek assistance in relation to his employment-related issues does not alter my view that his medical condition impacted his ability to file an application.
I am unable on the evidence before me to make any precise findings about the extent of Mr Kumar’s English language ability. He described his English language ability as ‘basic’. There are a number of emails in evidence before me which reflect Mr Kumar having some English language ability, but I have no evidence before me about whether he received any assistance with these emails and, if so, the extent of the assistance he received. I infer from Mr Kumar using an interpreter before the FW Commission that his English is not fluent. I accept that Mr Kumar’s inability to speak English fluently may make preparing a court application more difficult than it otherwise might be. Considered in isolation, any language difficulties would not amount to an adequate explanation for the delay in this matter. However, I am willing to infer that Mr Kumar’s language difficulties may have compounded the difficulties he faced as a result of his mental health conditions.
Mr Kumar’s decision to seek pro bono legal assistance and wait for that assistance to become available does not, of itself, amount to an adequate explanation for the delay. However, in the light of the other difficulties that Mr Kumar faced, particularly as a result of his mental health condition, it was not unreasonable for him to wait a short amount of time after seeking assistance from Law Access to see whether assistance might become available. I do not make any adverse finding against Mr Kumar as a result of his decision to await legal assistance.
Action to contest the termination
The matters referred to at [19] above, which relate to action taken by Mr Kumar after the s 368 certificate was issued, are all relevant to any consideration of the steps that Mr Kumar has taken to contest his termination. That Mr Kumar made the application to the FW Commission also shows that he contested the termination of his employment. There is other evidence before the Court of other actions taken by Mr Kumar, prior to the termination of his employment, in relation to the issues which are the subject matter of this proceeding. This includes evidence that from May 2023 Mr Kumar communicated with staff of the Duxton Hotel via email to seek information from his employment file, including in relation to the actual hours he worked, and that on 25 May 2023 Mr Kumar sought advice from the FW Commission through its online portal as a result of concerns that his employment would be terminated.
Counsel for Mr Kumar submitted that Mr Kumar took a number of steps to contest the termination of his employment, both before and after the termination took place. The respondents acknowledged that Mr Kumar took action to contest his termination by making the application to the FW Commission but noted that Mr Kumar gave no indication to the respondents of his intention to make an application to the Court before making the application. In oral submissions, Counsel for the respondents accepted that the respondents were aware that the termination was challenged from the time Mr Kumar made his application to the FW Commission, and it is neither here nor there whether he continued to take steps to challenge his termination after the conclusion of the matter before the FW Commission.
I accept that Mr Kumar took action to contest the termination. This includes not only making the application to the FW Commission, but also the actions he took to seek advice and assistance from the FW Commission, the Ombudsman and pro bono lawyers since that time.
Prejudice to respondents
Both parties submit, and I accept, that there is no material prejudice to the respondents as a result of the delay.
The respondents advanced submissions that there may be some limited prejudice but accepted that I should not afford much weight to it. The prejudice said to arise was that the respondents may suffer prejudice to the extent that they may now not have access to all relevant witnesses and there may be some decrease in the capacity of witnesses to recall events from more than a year earlier.
I consider this submission to be speculative and I place no weight on it. There is nothing before the Court from which I can infer that a delay of 72 days in filing the application to this Court would have any material impact on the availability of witnesses or their ability to recall events above and beyond that which may otherwise arise between filing an application and that application progressing to hearing.
Of course, the absence of prejudice alone does not warrant the grant of an extension of time, but it is relevant that there is no prejudice in the present case that would weigh against the grant of an extension of time.
Merits of the case
The parties made detailed submissions in relation to the merits of the proposed substantive application. I do not here summarise those submissions in detail and it is unnecessary to address the various submissions advanced by the parties based on the terms of the termination letter.
In brief, Counsel for Mr Kumar submitted that Mr Kumar has a strong prima facie case, and Counsel for the respondents submitted that Mr Kumar’s case is weak but that, in any event, without the benefit of evidence, the Court is unable to make any substantial or well-informed assessment of the strength of Mr Kumar’s case. The respondents submitted that I should assess the merits as a neutral factor. Both parties in addressing the merits focused on the alleged contraventions of ss 340 and 351 of the Fair Work Act and did not address the alleged contravention of s 45.
I accept that in circumstances where the parties have not filed all relevant evidence, I am unable to form a conclusive view of the merits of the case. It is neither necessary nor appropriate to form a conclusive view of the merits at this stage of the proceeding and I express no view as to whether the merits of the case are ‘strong’, as submitted by Mr Kumar, or ‘weak’, as submitted by the respondents.
I do, however, have enough information before me to accept that Mr Kumar has a reasonably arguable case.
Part G of Mr Kumar’s Form 2 contains the details of the contraventions he alleges. The matters referred to in that part of his Form 2 include the essential criteria for the establishment of the allegations, as reflected in the summary of the allegations at [11] and [12] above. If Mr Kumar can establish with evidence the matters referred to in his Form 2, he would have a reasonable chance of success at the hearing, subject to whether the respondents can discharge the reverse onus in s 361 of the Fair Work Act in respect of the reasons for dismissal.
Relevant to the assessment of the merits of the alleged contravention of s 340 of the Fair Work Act, at the hearing of the extension of time application, Counsel for the respondents accepted that Mr Kumar had exercised a workplace right and that adverse action had been taken against him by dismissing him. Those are the only matters that Mr Kumar is required to establish in relation to the alleged contravention of s 340. The onus then falls on the respondents to show that Mr Kumar was not dismissed from his employment because he exercised a workplace right: see s 361 of the Fair Work Act.
In circumstances where Mr Kumar has a reasonably arguable case, I consider that the merits of the application weigh in favour of the grant of the extension of time.
Consideration of fairness as between the applicant and other persons in a like position
Neither party made any substantive submissions in relation to this consideration and, in the absence of any evidence or submissions about whether exercising my discretion one way or the other would give rise to any unfairness, I treat this consideration as neutral.
CONCLUSION ON EXTENSION OF TIME
Weighing and balancing the considerations referred to above, I consider it appropriate to exercise my discretion to grant Mr Kumar an extension of time to file his general protections court application. In summary:
(a)I am satisfied that, on balance, Mr Kumar has provided an acceptable explanation for a delay of some 72 days. That Mr Kumar has an acceptable explanation for the delay weighs in favour of the grant of an extension of time.
(b)Mr Kumar has taken steps to contest the termination of his employment and that weighs in favour of the grant of an extension of time.
(c)There is no material prejudice to the respondents as a result of the delay.
(d)Although I am unable to assess whether Mr Kumar’s case is ‘strong’ or ‘weak’, I am satisfied that he has a reasonably arguable case and I take that into account in deciding to grant the extension of time.
A question arose at the hearing as to whether, if an extension of time is granted, the time for filing the application should be extended to 20 October 2023 or 23 October 2023. The Filing and Hearing Details on the application indicate that it was lodged on 20 October 2023 at 2.41pm and that it was accepted for filing on 23 October 2023 at 8.47am. The application was filed by electronic communication and, pursuant to r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), as the whole document was received by the Court Registry before 4.30pm on 20 October 2023, it is taken to have been filed on 20 October 2023. Therefore, the time for Mr Kumar to file his general protections court application should be extended to 20 October 2023 and the order I make reflects this.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 21 February 2024
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