Mr Bhupinder Singh Balagan v Australian Leisure and Hospitality Group Pty Ltd

[2020] FWC 2757

[2020] FWC 2757

FAIR WORK COMMISSION

DECISION

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

Mr Bhupinder Singh Balagan
v
Australian Leisure and Hospitality Group Pty Ltd
(U2020/3665)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 3 JUNE 2020

Application for an unfair dismissal remedy – application for an extension of time.

[1] This decision concerns an application by Mr Bhupinder Singh Balagan for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Act).

[2] Mr Balagan made an application for an unfair dismissal remedy under s.394 of the Act on 26 March 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). It is not in dispute that Mr Balagan’s application was filed outside the timeframe for lodgement of the application. Mr Balagan seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

[3] For the reasons set out below, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of the application. The application is dismissed.

Background

[4] Mr Balagan commenced employment with the Respondent on 22 October 2018 as a chef. 1

[5] On 28 January 2020, Mr Balagan attended a disciplinary meeting on account of conduct concerns held by the Respondent resulting in the termination of Mr Balagan’s employment. The termination letter advised that Mr Balagan had engaged in serious misconduct by failing to observe the correct process for cooking meals and closing the kitchen early without authorisation. 2 The letter advised Mr Balagan that the termination took immediate effect on 28 January 2020.

[6] Mr Balagan’s application for unfair dismissal remedy was received by the Commission on 26 March 2020.

[7] It follows that the 21-day statutory timeframe for filing the application expired at midnight on 18 February 2020. The application was filed 37 days outside of that timeframe.

Statutory framework

[8] The Commission has the power pursuant to s.394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 3In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.

[9] Under s.394(3) of the Act, the Commission may allow a further period of time for an application under s.394 to be made, if it 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] I consider each of these matters below.

Consideration

Reason for the delay

[11] Mr Balagan submits that his application was lodged outside the 21-day timeframe on account of the following matters:

(a) Mr Balagan did not have access to appropriate resources, including a computer and printer, to be able to lodge his unfair dismissal application online. He attended Officeworks in order to complete the application.

(b) Mr Balagan has an extant Workcover claim, which has adversely affected his health resulting in depression and anxiety, which is also attributable to “the managerial actions of harassment and racism.”

(c) Mr Balagan was uncertain whether an application for unfair dismissal could be made to the Commission in light of his Workcover claim. He did not understand that his Workcover application was different to an application for an unfair dismissal remedy.

(d) Mr Balagan is responsible for the care of his pregnant partner who has severe health issues arising from open heart surgery in 2019.

(e) Mr Balagan had a cough and cold for the two months preceding the lodgement of his application on 26 March 2020 for which he did not receive treatment on account of the COVID-19 pandemic.

(f) Mr Balagan was married approximately 10 days prior to his dismissal.

(g) Mr Balagan was left “dumbstruck” by the Respondent’s decision to terminate him.

[12] The Respondent opposes a grant of an extension of time. It says that the matters relied upon by Mr Balagan do not constitute exceptional circumstances and submits as follows:

(a) While the application was lodged in the Commission on 26 March 2020, it was dated 20 February 2020 meaning that it was two days out of time upon its completion.

(b) There is no evidence in support of Mr Balagan’s contention that his health concerns contributed to the delay in lodging his application for an unfair dismissal remedy. Rather, the most recent medical evidence relied upon is for the period to 6 December 2019, which predates Mr Balagan’s termination.

(c) Mr Balagan’s Workcover claim commenced in September 2019, prior to his termination on 28 January 2020. It is therefore not plausible for Mr Balagan to confuse the two applications. In any event, during the jurisdictional hearing it says that Mr Balagan was able to differentiate between his Workcover claim and application for an unfair dismissal remedy.

(d) Mr Balagan progressed his Workcover claim by attending a conciliation conference on 3 February 2020. He was therefore not prevented from lodging an application for unfair dismissal remedy within the 21-day period from 28 January 2020.

(e) The delay in lodging the application by 37 days is significant, for which Mr Balagan has not provided a sufficient explanation.

[13] The relevant period required to be considered under s.394(3)(a) is the period after the 21-day timeframe for lodging the application, being 19 February 2020 to 26 March 2020. 4 However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.5

[14] Mr Balagan identifies each of the matters listed at [11] as contributing to the late lodgement of his application on 26 March 2020. These matters are not particularised further. Mr Balagan did not supplement his submissions regarding these matters orally during the proceedings, except to confirm his understanding that the Workcover claim was distinct from his application for an unfair dismissal remedy. Mr Balagan has not advanced any material which evidences that any one or more of the matters prevented him from lodging the application within time.

[15] The high watermark of Mr Balagan’s case is that the reasons provided for the delay existed both during the 21-day period following the dismissal and during the period of the delay. However, the evidence discloses that these matters did not prevent Mr Balagan from taking steps to progress his Workcover claim by attending a conciliation on 3 February 2020 (within the 21-day timeframe) and meeting with his solicitors in relation to the Workcover matter on 27 February 2020 (during the period of the delay and approximately one month prior to lodging his unfair dismissal application in the Commission). 6

[16] Accordingly, I do not find that any of the matters relied upon by Mr Balagan as reasons for the delay, individually or collectively, prevented him from lodging the application within time. I do not consider these reasons to constitute exceptional circumstances.

[17] This weighs against the grant of an extension.

Whether the person first became aware of the dismissal after it had taken effect

[18] The Respondent advised Mr Balagan at the 28 January 2020 disciplinary meeting of his termination. This was confirmed in a termination letter of the same date.

[19] It is not disputed by Mr Balagan that he became aware of his termination on 28 January 2020. Mr Balagan had 21 days to lodge his application from this date.

[20] I consider this to weigh against the grant of an extension.

Action taken by the person to dispute the dismissal

[21] It is not in dispute that Mr Balagan has not taken any action to dispute the dismissal except by lodging an application for an unfair dismissal remedy.

[22] This weighs against the grant of an extension.

Prejudice to the employer

[23] The Respondent contends that it will suffer prejudice if Mr Balagan is granted an extension of time. This prejudice is said to arise from the necessity to engage legal counsel to respond to the extension of time issue in circumstances where Mr Balagan has not sought to pursue the application within the 21-day timeframe. This is compounded by the extent of the delay for which no sufficient explanation has been provided. Accordingly, the Respondent submits that it should be entitled to regard the matter as finalised.

[24] I am not persuaded by the Respondent’s submission that it is prejudiced by having engaged legal counsel to respond to the extension of time issue.

[25] However, a long delay gives rise to a general presumption of prejudice. 7 Noting that Mr Balagan lodged his application for unfair dismissal remedy 37 days late, and in light of my earlier finding that he has not advanced an acceptable reason for the delay, I accept that some prejudice will accrue to the Respondent.

[26] This weighs marginally against the grant of an extension.

Merits

[27] There is insufficient material before me to make any detailed assessment as to the merits of the substantive application. Nor should the Commission embark upon such analysis in determining whether to grant an extension of time. 8 However, the application is not without its difficulties.

[28] The Respondent submits that there was a valid reason for terminating Mr Balagan related to his misconduct for reason of the following:

(a) On 4 and 17 January 2020 Mr Balagan cooked meals without a docket in contravention of the Respondent’s procedures.

(b) On 19 January 2020 Mr Balagan closed the kitchen early and without authorisation, affecting potential sales and profits.

[29] Mr Balagan disputes that these matters constitute a valid reason for his dismissal. In respect of the first reason for his dismissal, he says that the meals were cooked for an employee of the Respondent who paid after eating his meal. He contends that this is supported by CCTV footage. As to the second reason for his dismissal, Mr Balagan submits that kitchen was quiet and so he informed the onsite manager that he would commence cleaning. The kitchen was then closed approximately 10 minutes prior to its ordinary closing time.

[30] While Mr Balagan says that there were no verbal or written warnings in place, the Respondent points to a history of conduct and performance concerns including:

(a) Mr Balagan flooded the kitchen.

(b) Mr Balagan left the food storage freezer open overnight, resulting in the freezer stock being disposed of.

(c) Mr Balagan, in the presence of customers, licked his fingers but did not wash his hands.

(d) Mr Balagan carried a dagger/knife attached to his waist whilst at work leaving other staff feeling unsafe.

[31] Given the factual dispute between the parties, which has not been tested before me, this is a neutral consideration.

Fairness as between the person and other persons in a similar position

[32] The parties did not raise any circumstances that are relevant to the question of fairness as it relates to Mr Balagan or any other person in a similar position.

[33] I consider this to be a neutral consideration.

Conclusion

[34] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time.

[35] Mr Balagan’s application for an extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr B.S Balagan, Applicant

Ms S Stonier for the Respondent

Hearing details:

2020.
Melbourne (via telephone):
1 June.

Printed by authority of the Commonwealth Government Printer

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 1   Jenny Wregg witness statement filed 26 May 2020 (JW witness statement) at [7]-[8]

 2   Applicant’s document list filed 13 May 2020, letter of termination dated 28 January 2020

 3 [2011] 203 IR 1

 4   Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [40]

 5   Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]

 6   Annexure JWS-6 (Letter from Arnold, Thomas and Becker to Mr Balagan dated 17 March 2020) to JW witness statement

 7   Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at p.556

 8   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]