Mohit Singla v Oasis Corporation Australia Pty Ltd
[2021] FWC 3878
•5 JULY 2021
| [2021] FWC 3878 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mohit Singla
v
Oasis Corporation Australia Pty Ltd
(U2021/4889)
DEPUTY PRESIDENT MASSON | MELBOURNE, 5 JULY 2021 |
Application for an unfair dismissal remedy - application made outside of 21-day time limit – no exceptional circumstances present – unfair dismissal application dismissed.
Introduction and background
[1] This decision concerns an application by Mr Mohit Singla (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).
[2] The Applicant asserts in his Form F2 application that his employment as a Sales and Marketing Officer with Oasis Corporation Australia Pty Ltd (the Respondent) commenced on 18 September 2017 1 and was terminated with effect from 11 June 20202. The unfair dismissal application was lodged on 4 June 2021.
[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). As the dismissal took effect on 11 June 2020 the period of 21 days ended at midnight on 2 July 2020. The application was therefore filed 337 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.
[4] A conference to deal with the extension of time application was set down for 2 July 2021. At the conference the Applicant appeared and gave evidence on his own behalf. Mr A Koya of Koya and Co. solicitors appeared on behalf of the Respondent by leave of the Commission pursuant to s.596 of the Act. Mr J Dhedhy, Director of the Respondent, was called to give evidence.
[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances 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 rare3. 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 exceptional4.
[6] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(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.
[8] 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 turn to consider these matters in the context of the Application.
Reason for the delay
[9] 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 considered5.
[10] The elapsed time between the Applicant’s dismissal on 11 June 2020 and the filing of his application for an unfair dismissal remedy on 4 June 2021 is 358 days, which is 337 days beyond the 21 day period for the filing of an application.
[11] The following chronology of relevant events was established through the evidence of the Applicant and Respondent;
• 11 June 2020 – the Applicant’s employment with the Respondent ceased 6.
• 1 July 2020 – the Applicant commenced employment with a new employer, Agribiz International Pty Ltd (Agribiz) as a marketing officer 7.
• The Applicant states that he filed an application in the Victorian Civil and Administrative Tribunal (VCAT) in the first half of July 2020 in respect of his dismissal and various leave and superannuation underpayment issues. The Applicant was unable to identify the specific date the application was made. Nor were any documents produced in evidence by the Applicant that confirmed the nature of the VCAT application or the date on which it was made.
• 1 August 2020 – the Applicant’s wife gave birth to a male child 8.
• 20 August 2020 – the Applicant spoke with a lawyer from Justice Connect which is a legal service he says he was referred to by VCAT. The lawyer wrote to the Applicant that same day seeking particular documents to assist Justice Connect to determine whether the Applicant was eligible for their services 9.
• 21 August 2020 – the Applicant provided a range of documents to Justice Connect 10.
• In November 2020, the Applicant states he engaged another legal representative, Legal Exchange Solicitors, after not having heard back from Justice Connect.
• 20 November 2020 – Justice Connect contacted the Applicant to confirm that a one hour appointment for “discreet task oriented legal advice” was offered, the meeting was scheduled to occur on 24 November 2020 11.
• 23 November 2020 – Legal Exchange Solicitors sent a letter to the Respondent on behalf of the Applicant in relation to a range of matters including unpaid annual leave entitlements, superannuation benefits and employment documents the Applicant was seeking 12.
• 24 November 2020 – the Applicant states he met over the phone with a Justice Connect lawyer for the offered one hour appointment. The Applicant gave no evidence as to the outcome of the meeting or the nature of the advice received.
• On 3 January 2021 – the Applicant sent a follow-up email to Justice Connect querying actions that he was expecting to have occurred following the meeting on 24 November 2020 13.
• On 15 January 2021 – the Applicant received an email response from Justice Connect in which he was advised that after internal inquiries he would be provided with a further email outlining steps and documents he may need 14.
• Shortly after the 15 January 2021 response from Justice Connect the Applicant says he advised Justice Connect that he no longer required their services.
• The Applicant states that his legal representative, Legal Exchange Solicitors, filed a statement of claim in the Magistrates Court in May 2021 in relation to the various underpayment matters referred to in the letter to the Respondent dated 23 November 2020. The specific date on which the statement of claim was filed was not identified. Nor was documentation produced in evidence that verified the nature of the claims or the date on which it was filed.
• Following the filing of the statement of claim the Applicant states that he was alerted by the court that an unfair dismissal claim could only be pursued in the Fair Work Commission. The Applicant was unable to identify the date on which he received such advice.
• 4 June 2021 – the Applicant filed his unfair dismissal application.
[12] The Applicant submits the following reasons for the delay in the filing of his unfair dismissal application;
• Following his dismissal, he was unaware of how to pursue an unfair dismissal claim.
• Immediately following his dismissal, he was focused on securing a new job.
• At the time of his dismissal his wife was 7 months pregnant, and he bore sole responsibility for the household, work and financial stability.
• His legal representatives failed to progress his case or respond to him in a timely manner.
[13] Turning firstly to the Applicant’s claimed ignorance of the process, I accept that the Applicant was unfamiliar with the steps required or avenues available to pursue an unfair dismissal claim. It is well established however that ignorance of the statutory time limit or processes required is not an exceptional circumstance. See for example the comments of the Full Bench in Nulty;
“[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 15
[14] There was no evidence that, in the 21 day period immediately following the Applicant’s dismissal, he took any steps to seek out information on any remedy he may have had for his dismissal. It is apparent however that he did contact and seek legal advice both from Justice Connect (in August 2020) and Legal Exchange Solicitors (in November 2020) although no evidence was led as to the specific advice received from either of those organisations in respect of his rights and avenues of pursuit of an unfair dismissal remedy. I don’t regard the Applicant’s claimed ignorance as providing an acceptable explanation for his delay in filing his unfair dismissal application.
[15] As to the Applicant’s contention that he was focussed on securing employment following his dismissal, which he says prevented him from pursuing an unfair dismissal remedy, the following may be said. The circumstances of job hunting in the wake of job loss is hardly “unusual, special or uncommon”. Rather, it would be entirely normal and rational for an employee so recently dismissed to be extremely focussed on securing new employment in order to mitigate the adverse effects flowing from loss of employment.
[16] In any case there was no evidence as to how many job applications were made by the Applicant and how soon after his employment with the Respondent ceased that he secured confirmation of his new role. It was certainly quick as can be seen by his commencement with Agribiz on 1 July 2021. The relatively quick transition to his new employer was consistent with the Applicant’s claims that he had a good reputation and had fielded interest from other employers prior to the cessation of his employment with the Respondent.
[17] It follows from the above that I don’t accept that the Applicant’s employment seeking efforts in the 2-3 week period following his dismissal provides a reasonable explanation for any of the delay in the filing of his application for an unfair dismissal remedy. My view is fortified by a concession made by the Applicant during the conference that completing the unfair dismissal application Form F2 was not an onerous or time-consuming task.
[18] The Applicant’s wife’s pregnancy was also said to be a contributing factor to the delay in the filing of his unfair dismissal application. There was no evidence led by the Applicant that his wife’s pregnancy was problematic in a medical sense. In fact, there was no evidence at all led by the Applicant in respect of his wife’s pregnancy beyond the mere assertion that it impacted on his ability to pursue an unfair dismissal remedy. Certainly, it did not prevent him from commencing in his new role with Agribiz on 1 July 2020. Nor did it prevent him from, on his own evidence if it is to be believed, filing a VACT application in the first half of July 2020.
[19] I am not persuaded that the fact that the Applicant’s wife was 7 months pregnant at the time of his dismissal was a factor that explained any of the delay in the filing of his unfair dismissal application.
[20] Turning now to the Applicant’s claims that his application was delayed by both inaction of legal representatives and the actions taken by him in other jurisdictions. One of the difficulties with the Applicant’s claims is that no documentary evidence was produced by him of any applications made by him in either VCAT or the Magistrates Court that would shed light on the substance of either of those applications or their timing. Nor did the Applicant lead any evidence as to particular advice he received from either Justice Connect or Legal Exchange Solicitors that might bear upon the question of whether he was poorly advised or represented in relation to pursuit of an unfair dismissal remedy. It does seem however on the basis of the letter from Legal Exchange Solicitors to the Respondent dated 23 November 2020 that the Applicant was particularly focussed on the underpayment issues rather than his dismissal.
[21] Even if it were accepted that the Applicant’s unfair dismissal matter was placed in the hands of either or both legal firms at various points, there are long periods in which there was no apparent activity by either Justice Connect or Legal Exchange Solicitors and no apparent follow-up by the Applicant. Take for example the contact the Applicant initially had with Justice Connect on 20 August 2020. The next apparent contact was correspondence from Justice Connect to the Applicant on 20 November 2020 in which a one hour meeting on 24 November 2020 was proposed for the purpose of “discreet task oriented legal advice”. A further period of several weeks then elapsed following the 24 November 2020 meeting before the Applicant sent a follow-up email on 3 January 2021. No evidence was led that revealed any actions taken by the Applicant to engage with Justice Connect in the intervening periods referred to above.
[22] There is further inaction evident on the part of the Applicant in respect of Legal Exchange Solicitors who he says he engaged in November 2020. A letter of demand was sent by Legal Exchange Solicitors to the Respondent on the Applicant’s behalf on 23 November 2020. The next apparent action was the alleged filing of a statement of claim in the Magistrates Court in May 2021, although as stated above there was no evidence of the content or timing of that application. If it be true that the statement of claim was in fact filed in the Magistrates Court in May 2021 there is a delay of several months following the 23 November 2020 letter to the Respondent during which period there is no evidence of follow-up action by the Applicant, although he claims to have made some phone calls to Legal Exchange Solicitors. Nor is there any evidence in the alternative that Legal Exchange Solicitors were acting on clear instructions from the Applicant but failed to carry them out in a timely manner.
[23] It follows from the above that I am not in a position to conclude that it was either inaction or poor advice from legal representatives that provides a reasonable explanation for the Applicant’s delay in filing an unfair dismissal application. That is because firstly, there is an absence of evidence as to the nature of advice received by the Applicant or the instructions given by him to either Justice Connect or Legal Exchange Solicitors. Secondly there is nothing before me that sheds light on the substance and timing of the applications made in VCAT and the Magistrates Court. Finally, there is no explanation for the substantial periods of time over several months during which there was no apparent action taken by the Applicant in engaging with or following up with either Justice Connect or Legal Exchange Solicitors.
[24] Having regard to all of the above circumstances I do not accept the explanations provided either individually or collectively as preventing the Applicant from lodging the application on time or at a time earlier than the date on which his application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[25] The Applicant confirmed in his evidence that he was notified of his dismissal on the 11 June 2020 by way of the letter of termination. Consequently, he had the full 21 days within which to file his application for an unfair dismissal remedy after the dismissal took effect on 11 June 2021. In the circumstances, I regard this as a neutral consideration.
Action taken to dispute the dismissal
[26] There is no evidence before me that the Applicant took any action to dispute his dismissal with the Respondent, although I accept he pressed the Respondent in relation to underpayment of leave and superannuation entitlements prior to and following his dismissal. In the circumstances I regard this as a neutral consideration
Prejudice to the employer
[27] The delay of almost 11 months in the application for an unfair dismissal remedy being filed is significant and I accept that prejudice would accrue to the Respondent if an extension of time were to be granted. In the circumstances I regard an almost 11 month delay in filing the application as weighing against a finding of exceptional circumstances.
Merits of the application
[28] The Act requires me to take into account the merits of the application in considering whether to extend time. The Applicant states that he raised concerns with Mr Dhedhy, a Director of the Respondent, on 7 May 2020 regarding unpaid superannuation contributions 16 and that following his raising of this concern, was subsequently notified by Mr Dhedhy of his dismissal on 11 June 202017. The Applicant further states that at no stage during his employment with the Respondent was he advised of any performance or conduct concerns.
[29] The Respondent rejects the Applicant’s contention that it dismissed him because of his having made a complaint regarding allegedly unpaid superannuation contributions. The Respondent further states that the cessation of the Applicant’s employment was mutually agreed between the parties on or about 1 May 2020 after the Applicant had indicated that he wanted to seek employment elsewhere.
[30] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[31] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
[32] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
[33] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
M Singla, Applicant
A Koya of Koya & Co Barristers and Solicitors for the respondent
Hearing details:
2021.
Melbourne (by video using Microsoft Teams):
July 2.
Printed by authority of the Commonwealth Government Printer
<PR731328>
1 Exhibit A2, Letter of employment verification, dated 29 January 2019
2 Exhibit A4, Termination Letter, dated 11 June 2020
3 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
4 Ibid.
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [39]
6 Exhibit A4
7 Exhibit A1, Witness Statement of Mr Mohit Singla
8 Exhibit A8, Birth Certificate for Mr Bhivik Singla
9 ExhibitA12 – bundle of emails between Applicant and Justice Connect
10 Ibid
11 Ibid
12 Exhibit R3, Letter to Respondent dated 23 November 2020
13 Exhibit A12
14 Ibid
15 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]
16 Exhibit A9, Email from Applicant to Respondent titled ‘Superannuation’, dated 7 May 2020
17 Exhibit AX
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