Mr Anil Kumar v DFP Recruitment

[2017] FWC 5819

[2017] FWC 5819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Anil Kumar
v
DFP Recruitment
(C2017/5481)

COMMISSIONER RYAN MELBOURNE, 8 NOVEMBER 2017

Application to deal with contraventions involving dismissal – application out of time.

[1] This decision relates to the application made by Mr Kumar pursuant to s.365 of the Fair Work Act 2009 (the Act) being filed outside the 21 day time period stipulated by s.366 of the Act. The following decision, now edited, was issued in transcript on 31 October 2017.

[2] The relevant section of the Fair Work Act is section 366:

“(1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the Fair Work Commission allows under subsection (2)."

(2) The Fair Work Commission may allow a further period if the Fair Work Commission is satisfied that there are exceptional circumstances taking into account:  (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer, including prejudice caused by the delay; and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position."

[3] Now, in the present matter, the Applicant is the only person who got dismissed, so paragraph (e) doesn't apply because there are no persons in a like position to the Applicant. In relation to paragraph (d), the authorities make clear that this is not the time for me to consider the merits in detail or in full.  So generally the merits of the application are of neutral value in making a decision around an extension of time.  But the other three matters that are listed in paragraphs (a), (b) and (c) are directly relevant.  The Commission has to take into account the reason for the delay, any action taken by the Applicant to dispute the dismissal and any prejudice to the employer that might arise out of granting an extension of time.

[4] The Applicant put the following contention to the Commission:

“Yes, the reason for the delay was, as I explained, was, like, I'm originally from New Zealand and I was actually aware of the Fair Work Commission.  Once all these things happened, I was so depressed and I didn't know what to do so I was still trying to sort out things with DFP with the proper investigating process and things that you mentioned which we shouldn't be discussing here, that's fair enough.

And so I was still - and I didn't have any family support.  I was living alone.  My family was back in New Zealand.  So I was so depressed and no support, so I had to come back home.  I stayed with my family and then I have to go back and by the time I was made aware of the Fair Work Commission, I made a call to Fair Work Commission and I don't remember the name of the guy I spoke to and he explained the process and how it was to be done and then I told him that I am late by 21 days, more than 21 and he said, yes, he understands that and there is another option where you can go like today.

And that's how I came to know about the Fair Work Commission.”

[5] The test for exceptional circumstances is reasonably high.  There is a Full Bench decision which talks about what is meant by "exceptional circumstances" and the Commission is required to follow that decision and the decision is called Nulty v Blue Star Group Pty Ltd. 1 The Full Bench in that matter had to consider what was meant by "exceptional circumstances", because it's one of those odd phrases which isn't defined in the Fair Work Act, so the Full Bench actually had to look at what it meant. And what the Full Bench said at paragraph 13 of their decision is as follows:

"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."

[6] The Full Bench then goes on to say immediately after that:

“Mere ignorance of the statutory time limit in section 366(1)(a) is not an exceptional circumstance.”

And:

"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 application.”

So the practical issue is that not knowing of the time limits, even not knowing of the Fair Work Commission and the provisions of the Fair Work Act relating to general protections is not and cannot be considered to be an exceptional circumstance.

[7] The Applicant is in the same position that many, many employees are and especially many employees who aren't brought up knowing about the Australian industrial system and that includes people who have gone through universities here. The Commission has had people who are qualified and they still don't know about the Fair Work Act or all of these sorts of provisions. So the Applicant is not in an exceptional circumstance. The Applicant is really are part of the norm. The practical reality, though, is, ignorance of the law is not an excuse and certainly not an exceptional circumstance for granting a remedy like an extension of time.

[8] What can give rise to an exceptional circumstance is the Applicant’s mental health and there are clear authorities which suggest that if an applicant was not able to make a claim because of mental health issues or physical health issues, that can constitute an exceptional circumstance.  The Applicant’s material talks in terms of the Applicant being depressed, but there's no evidence attached to any of the Applicant’s material from any doctor or any mental health practitioner identifying that the Applicant was suffering from a mental health issue that prevented the Applicant from dealing with this matter within the timeframe. 

[9] In response to questions from the Commission as to evidence regarding his medical condition, the Applicant responded: 

“No, no, I didn't visit doctors or anything.  But honestly speaking, I am not aware of what systems and things were there - were available in Australia to do all those things.  I was just at home on my own just trying to figure out why all these things have happened.  But, your Honour, I didn't go.”

[10] One of the things which is very apparent about termination of employment is that whenever an employee is termination, it is generally the case that a person becomes upset and can suffer depression like symptoms or be suffering from stress or other related issues.  That seems to be a normal reaction to losing your job unexpectedly and in circumstances where a person considers that they've been treated wrongly.  But that's not sufficient to constitute an exceptional circumstance.  If the Applicant had doctors certificates which identified that the Applicant had a specific mental health issue at the time and that prevented the Applicant from making an application in time, the Commission would have considered that and it may have been sufficient, not always sufficient, but it may have been sufficient to grant an extension of time.

[11] As the only reasons the Applicant was advancing are those that the Applicant put in his written material, they're not anywhere near sufficient to meet the test laid out in Nulty v Blue Star Group.  Because that is a decision of a Full Bench, it is a decision the Commission is bound to follow. 

[12] In the circumstances of the present matter, I'm certainly not satisfied that there are exceptional circumstances. I accept completely that the Applicant may have been suffering from some depression and I accept completely that the Applicant did not know that there were time limits or that there even were provisions in the Fair Work Act that he could use. But they are not matters that give rise to exceptional circumstances. They're simply not out of the ordinary and they're not unusual, they're not special and they're not uncommon. The reality is that the circumstances that the Applicant faced are all too common in this sort of area. The Commission is not going to be able to grant an extension of time which means that the application won't be able to proceed at all.

[13] On the basis that the Commission has decided that there is no exceptional circumstances and an extension of time cannot be granted, it does mean that the application in this matter was filed out of time, it cannot proceed, the application must be dismissed. 

COMMISSIONER

Appearances:

A. Kumar on his own behalf.

A. Iliades on behalf of DFP Recruitment.

Hearing details:

2017.

Melbourne:

October 31.

 1   [2011] FWAFB 975.

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