Lamba Kunalkumar v T & Q Australia Pty Ltd T/A T & Q Australia Pty Ltd

[2016] FWC 2567

[2016] FWC 2567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lamba Kunalkumar
v
T & Q Australia Pty Ltd T/A T & Q Australia Pty Ltd
(U2016/660)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 27 APRIL 2016

Application for relief from unfair dismissal – extension of time not granted.

[1] Mr Kunalkumar Lamba alleged the termination of his employment by T & Q Australia Pty Ltd on 16 June 2014 was unfair.

[2] Mr Lamba’s unfair dismissal application lodged on 16 February 2016 was not made within 21 days of the date of the dismissal as required by s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

[3] Mr Lamba attended a jurisdictional hearing on 18 March 2016 and was unrepresented.

[4] Mr Murphy, General Manager appeared for T & Q Australia.

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

[6] 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.

[7] 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]

[8] There was no factual dispute that Mr Lamba had filed his application out of time. During the hearing Mr Lamba gave oral submissions regarding the materials he had filed. Mr Murphy also gave oral submissions regarding the materials he had filed and neither party sought to cross examine.

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

[9] MrLamba’s application was filed one year and eight months (610 days) after the date of his dismissal. Mr Lamba must provide reasons for the delay in making the unfair dismissal application. 2

[10] Mr Lamba must provide reasons 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.4 The reasons provided must be considered in order to determine whether those reasons constitute exceptional circumstances.

[11] Mr Lamba says from the date of his dismissal to 29 October 2014, he suffered from severe pain in his left leg due to an injury he had sustained from a motorbike accident two years earlier. 5

[12] Mr Lamba submitted the following factors contributed to the delay in lodging his application:

a) the pain he was suffering in his left leg,

b) on 22 July 2014 Mr Lamba had an X-ray of his left leg which was performed at a facility in Melbourne, 6

c) on 29 July 2014 Mr Lamba attended a clinical appointment in South Yarra to obtain a referral for physiotherapy treatment, 7

d) the physiotherapy treatment which he attended once week from 29 July 2014 until 29 October 2014; 8 and

e) the requirement to do exercises at home to improve his leg strength. 9

[13] During the hearing Mr Lamba gave evidence that he had not lodged his application at the completion of his physiotherapy treatment because he wanted to concentrate on “healing his leg”. Mr Lamba says this involved doing exercises at home.

[14] Mr Lamba gave evidence that although he had limited mobility in his left leg, he was able to use the computer and he had access to email, the internet and a phone for the whole period of the delay.

[15] During the hearing, Mr Murphy gave evidence that he had received a large volume of emails from Mr Lamba since the date of his dismissal. Mr Lamba had also engaged recruitment agencies to approach Mr Murphy on his behalf. Mr Lamba also physically attended the work site on a number of occasions.

[16] Mr Lamba gave evidence that he attended the local community centre, the premises of his previous employer and met with recruitment agents and friends from the time of his dismissal to the date of his application.

[17] Mr Lamba did not make any attempts to lodge an application for relief from unfair dismissal until 16 February 2016.

[18] Although Mr Lamba states he had limited mobility, by his own evidence he was able to attend appointments, visit friends and his former employer’s workplace. Mr Lamba submitted that he had phone, internet and email access however he made no attempt to lodge his application within 21 days of the date of the dismissal as required by s.394(2)(a) of the Act. Further, I am not satisfied that Mr Lamba has provided a reasonable explanation 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

[19] It is not in contention thatMr Lamba was notified of his dismissal on the day it took effect. Mr Lamba received an email on 19 June 2014 from Mr Murphy confirming his employment had been terminated from 16 June 2014. 10

[20] Mr Lamba 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

[21] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting and extension of time. 11

[22] MrLamba met with Mr Murphy on 16 June 2014 to dispute his dismissal. Beyond lodging this application, he 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)

[23] Prejudice to the employer will go against the granting of an extension of time. Mr Murphy submitted that the extensive period of time since the termination prejudices the ability of the employer to respond to the application as they would have to obtain the relevant records relied upon to terminate the employment of Mr Lamba from archives. 12 This consideration counts against affording Mr Lamba a further period for lodging his application.

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

[24] 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, 13 it said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.”

[25] Mr Lamba submitted he was dismissed with immediate effect on 16 June 2014 following allegations that he had placed five of the company owned websites under maintenance without permission rendering them inoperable, and he had been absent from work without notifying his employer.

[26] Mr Murphy submitted that T & Q Australia had a valid reason for the termination of Mr Lamba’s employment and that as a small business, they had complied with the Small Business Fair Dismissal Code. 14

[27] Mr Murphy submitted that Mr Lamba sent him an email on 13 June 2014 stating until Mr Murphy met his pay demands the company’s websites would be placed in maintenance mode.

[28] Mr Murphy submitted that Mr Lamba shut down the company websites causing T & Q Australia significant financial loss. Mr Lamba offered to make the websites live once he received a favourable response from Mr Murphy. 15

[29] MrLamba submitted that he had made a claim to Mr Murphy to be paid wages in accordance with the Professional Employees Award 2010, however this was not his reasoning for putting the company websites into maintenance mode.

[30] 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 for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application. I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[31] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 16 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.”

[32] There were no submissions that there is, or has been, any persons in a similar position to Mr Lamba. This weighs against a finding that there are exceptional circumstances.

Conclusion

[33] 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 Lamba’s application to be made. Mr Lamba has not provided a reasonable explanation for the whole of the delay. Mr Lamba’s application for an extension of time is dismissed and his unfair dismissal application is therefore dismissed.

[34] An order 17 dismissing Mr Lamba’s application will accompany this decision.

COMMISSIONER

Appearances:

K. Lamba on his own behalf.

G. Murphy for T & Q Australia Pty Ltd.

Hearing details:

2016.

Melbourne.

March 18.

 1   [2011] FWAFB 975.

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

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

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

 5   Exhibit A1.

 6   Ibid.

 7   Ibid.

 8   Exhibit A1.

 9   Ibid.

 10   Exhibit R1.

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

 12   Exhibit R1.

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

 14   Exhibit R1.

 15   Ibid.

 16   [2015] FWC 8885, [29].

 17   PR579434.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579386>