Mr Ashishkumar Sudani

[2010] FWA 8914

Note: Appeals pursuant to s.604 (C2010/5849, C2010/5850) were lodged against this decision. Refer to Full Bench decision dated 23 February 2011 [[2011] FWAFB 1022] for result of appeals.

[2010] FWA 8914

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Applications for unfair dismissal remedy

Mr Ashishkumar Sudani
(U2010/12397)

Mrs Purvi Sudani
(U2010/12541)

v
HealthWise Management (Aust) Pty Ltd trading as HealthWise Pharmacies Group

COMMISSIONER SMITH MELBOURNE, 3 DECEMBER 2010

Jurisdiction—extension of time sought—applications dismissed.

[1] These are applications for an extension of time in which to lodge an application for relief in relation to the alleged unfair dismissal of Mr Ashishkumar Sudani and Mrs Purvi Sudani.

[2] The matters were heard together as the dismissal was from the same employer and both applicants were represented by a single agent. Further, the reasons given for seeking an extension of time were almost identical.

[3] During proceedings on 19 November 2010 I announced that the applications for an extension of time were refused. These are my reasons.

[4] Mrs Sudani was employed by Healthwise Management (Aust) Pty Ltd (Healthwise) on 29 December 2008 and was terminated on 29 March 2009. Mrs Sudani lodged her application on 17 Setpember 2010.

[5] Mr Sudani was employed by Healthwise on 29 December 2008 and was dismissed on 15 December 2009. Mr Sudani lodged his application on 15 September 2010.

[6] In the proceedings Mr and Mrs Sudani were represented by Mr J Wheaton and Healthwise was represented by Ms J Slevison.

[7] Mr Wheaton argued that both Mr and Mrs Sudani were expatriate Indian citizens in Australia on student and working visas and were not aware of their ability to bring such a claim until they discussed the matter with him.

[8] In addition, Mr Wheaton submitted that Mrs Sudani did not want to jeopardise her husband’s employment by making such a claim.

[9] Healthwise submitted that an extension of time should not be granted and that the application should be dismissed as both frivolous and vexatious. Section 394(3) of the Act provides:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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] The focus of the section is that there must be exceptional circumstances. The circumstances described by Mr Wheaton are not exceptional and would render the 14 day statutory time limit meaningless for all persons who provide the simple proposition that they were not aware of the law as a consequence of being from another country and studying in Australia with permission to work. Further, there is a level of inconsistency with the proposition that Mrs Sudani did not want to lodge fearing action may be taken against her husband and the submission that she was unaware of the opportunity to seek relief.

[11] In any event the time taken from the time of Mr Sudani’s termination until the lodging of the application is still significant.

[12] All in all I find that the circumstances described by Mr Wheaton are not exceptional and the applications for an extension of time are refused.

[13] I do not deal with the application to dismiss on the grounds that the applications are frivolous and vexatious.

COMMISSIONER

Appearances:

J Wheaton, Agent for Mr Ashishkumar Sudani and Mrs Purvi Sudani.

J Slevison on behalf of Healthwise Management (Aust) Pty Ltd.

Hearing details:

2010.

Melbourne/Hobart;

November, 19.

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