Mr Apurva Mishra v Automated Solutions Australia

[2017] FWC 206

[2017] FWC 206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Apurva Mishra
v
Automated Solutions Australia
(U2016/13420)

COMMISSIONER PLATT ADELAIDE, 11 JANUARY 2016

Application for relief from unfair dismissal

[1] Mr Apurva Mishra has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Automated Solution Australia (ASA).

[2] Mr Mishra’s dismissal took effect on 17 October 2016 and he stated that he was waiting for his last payslip to review his wage payments before lodging his application on 9 November 2016.

[3] On 5 December 2016, my Associate corresponded with Mr Mishra and ASA and advised that the extension of time issue would be considered at a telephone conference on 11 January 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Mishra was directed to provide a statement concerning the extension of time and any documents to be relied upon by 2 January 2017. ASA was invited to file any material in reply by 9 January 2017.

[4] Mr Mishra provided a written submission.

[5] ASA also filed a written submission and opposed the extension of time.

[6] A hearing was conducted by way of teleconference on 11 January 2017. Mr Mishra represented himself and Mr Junken with Mr Cardone represented ASA. A sound file record of the telephone conference was kept.

[7] The submissions filed and made at the conference by Mr Mishra are summarised as follows;

● In October 2016 Mr Mishra was working overseas at a client of ASA.
● On 5 October 2016 Mr Mishra resigned his employment upon notice to take up employment with a Sydney based firm.
● During the notice period ASA terminated his employment with immediate effect by letter emailed on 17 October 2016.
● Mr Mishra disputed the basis upon which ASA dismissed him and believed he was entitled to payment of the balance of his notice period.
● In the period after the dismissal Mr Mishra sought advice from a friend and took steps to try and determine if his entitlements had been paid correctly.
● Mr Mishra was aware of the 21 day time limit and determined that he would wait until the 21^st day after the dismissal to lodge his claim, so he could review his payment details.
● Mr Mishra did not receive the requested payslip before the claim was lodged.
● In the period leading up to the lodgement of the application Mr Mishra was pre-occupied with the new role and moving to Sydney.
● Mr Mishra tried to lodge an online application on the twenty first day but found he was unable to complete the application and had other personal commitments.
● The application was lodged at 12.07 am on 9 November 2016.
● The merits of the claim support the extension of time.

[8] The submissions filed and made at the conference by ASA are summarised as follows;

● On 5 October 2016 Mr Mishra resigned whilst working in the USA.
● On 8 October 2016 ASA received a complaint from a client critical of Mr Mishra.
● ASA terminated Mr Mishra’s employment during his notice period on 17 October 2016 by letter to him.
● The period to lodge a claim expired on 7 November 2016.
● The payslip was requested on 4 November and emailed to Mr Mishra on 7 November 2016.
● The circumstances where Mr Mishra was seeking provision of a payment do not amount to extenuating circumstances.
● The merits of the matter should weigh against the extension of time.
● No other action was taken to dispute the dismissal until 9 November 2016.
● The delay has caused inconvenience to ASA and prejudiced the defence of the claim.

Applicable Law

[9] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

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

[10] Mr Mishra’s unfair dismissal application was made 2 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[11] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

Consideration

[12] The circumstances around why ASA determined to dismiss Mr Mishra during his notice period are disputed.

[13] There is no dispute however that Mr Mishra was aware of the 21 day period in which to lodge his application, but made a conscious decision to delay making his claim until what he perceived to have been the last day. As it turns out Mr Mishra’s claim was lodged 2 days late.

[14] The applicant needs to provide a credible explanation for the entire period of the delay. 2

[15] Mr Mishra waited until 4 November 2016 to seek the additional payslip information. Whilst ASA states it provided the information requested on 7 November 2016, Mr Mishra did not receive it. Mr Mishra’s application effectively represents a claim for unpaid employment entitlements rather than an unfair dismissal application. In his application, Mr Mishra seeks payment of the full notice period that was applicable to his resignation. These factors may enable Mr Mishra to pursue an underpayment claim but they do not represent an acceptable reason for the delay in lodging the application.

[16] It appears to me that Mr Mishra was distracted by his new role, his relocation to Sydney and his unspecified personal commitments. He has clearly paid insufficient attention to the lodgement of his claim despite knowledge of the time limit. Mr Mishra has not satisfactory explained the entire period of the delay.

[17] In terms of the merits of the application, as there is a factual dispute over the circumstances which led to the dismissal on 17 October 2016, I have regarded the merits of the matter as a neutral factor with respect to the extension of time issue.

[18] Whilst ASA submits that the granting of an extension of time would result in inconvenience and prejudice, I do not accept that submission, this of itself, does not provide a basis for an extension of time.

[19] Considerations of fairness relative to other persons in similar positions, is not relevant in this matter.

Conclusion

[20] For the reasons I have set out above, I am not satisfied that Mr Mishra’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Mishra on his own behalf.

Mr Juncken with Mr Cardone on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

January 11.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403.

 3   PR589287

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<Price code C, PR589286>