Mr Bikash Giri v IFS Labour Solutions Pty Ltd T/A Integrated Facility Solutions

[2016] FWC 8376

[2016] FWC 8376

FAIR WORK COMMISSION

DECISION

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

Mr Bikash Giri
v
IFS Labour Solutions Pty Ltd T/A Integrated Facility Solutions
(C2016/6037)

COMMISSIONER SAUNDERS NEWCASTLE, 23 NOVEMBER 2016

Application to deal with contraventions involving dismissal – time extended to make application

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Bikash Giri (the applicant) a further period for his general protections application (the Application) to be made.

The Hearing

[3] On 23 November 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence, through a Nepalese interpreter, in support of his application for an extension of time. The respondent did not adduce any evidence, but made submissions in opposition to the applicant’s application for an extension of time.

Legislative Scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(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.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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

Paragraph 366(2)(a) – reasons for delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] There must be an acceptable reason for the delay in making the general protections application. 7

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[11] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. 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. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[12] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 12 September 2016.

[13] The 21 day time period for the applicant to make his Application was to expire on 3 October 2016. 12 However, 3 October 2016 was a public holiday in New South Wales. When the final day of the 21 day period falls on a weekend or a public holiday the timeframe is extended to the next business day.13 Therefore, the time period for the applicant to make his Application expired on 4 October 2016. Given that the applicant filed his Application on 7 October 2016, the Application was three days late.14

[14] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 4 October 2016 to 7 October 2016. However, the circumstances from the time of the dismissal (12 September 2016) 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.

[15] The applicant relies on the representative error made by his solicitors at the Marrickville Legal Centre for not filing his Application within the 21 day time period.

[16] In his outline of argument, the applicant explained the reasons for his delay as follows:

“14. On 20 September 2016, the Applicant attended Marrickville Legal Centre (“MLC”) to obtain legal advice. Following the advice, the Applicant was of the understanding that MLC would submit the Application on his behalf.

15. On 29 September 2016 at 11:39pm, the Applicant returned his completed fee waiver form, to accompany the Form F8, by emailing it to MLC at [email protected], an email address that is monitored by PLT students.

16. Due to technical issues with MLC’s email platform, the email was incorrectly marked as “read” when it had not been read.

17. This error was not identified until the Principal Solicitor, the solicitor who had carriage of the matter, returned from leave on Wednesday 5 October 2016…”

[17] The applicant gave oral evidence to the effect that initially it took him some time to work out where to go for advice, however on 20 September 2016, eight days after his dismissal, the applicant attended the Marrickville Legal Centre and obtained advice from a solicitor in relation to his dismissal. Following receipt of the advice from his solicitor on 20 September 2016, the applicant understood the Marrickville Legal Centre would submit his Application on his behalf. The applicant was asked to complete a fee waiver application form, which he did and emailed it to the Marrickville Legal Centre on 29 September 2016. The applicant also contacted the Marrickville Legal Centre about one day after sending his email on 29 September 2016, to make sure they had received it. After sending his email to the Marrickville Legal Centre on 29 September 2016, the applicant understood his Application would be filed. I accept the evidence given by the applicant in relation to these matters as truthful and reliable.

[18] A person relying upon representative error must be able to demonstrate that they were blameless and did not by act or omission cause or contribute to the error. 15 In my view, it is apparent from the evidence summarised in paragraphs [16] – [17] above that:

(a) At all times between 12 September 2016 and 7 October 2016 the applicant acted reasonably, diligently and in a timely manner to have his Application filed within time. In particular, the applicant engaged a solicitor at the Marrickville Legal Centre shortly after his dismissal, gave instructions in a timely manner, promptly completed and returned his fee waiver application form, and genuinely believed his representative would file his Application;

(b) The Marrickville Legal Centre made a genuine mistake in not noticing the applicant’s email sent on 29 September 2016 and, as a result, did not file the Application within the 21 day time period. This mistake is the operative reason why the Application was filed three days late; and

(c) In the circumstances, the applicant is blameless for the three day delay in filing his Application.

[19] For the reasons set out in paragraphs [15] to [18] above, I am of the view that the applicant’s reason for the delay in filing his Application was out of the ordinary course, unusual, special and uncommon. 16 This factor weighs in favour of granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[20] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 17

[21] On 13 September 2016, one day after the applicant’s dismissal, the applicant said words to the following effect to his site supervisor, Toya Sapkoda: “I will fight for my legal rights to address this injustice.” The applicant then met with his legal representative on 20 September 2016 to discuss his termination of employment. The applicant therefore took action to dispute his dismissal.

[22] This factor weighs in favour of granting the applicant an extension of time.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[23] Prejudice to the employer will weigh against granting an extension of time. 18 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.19

[24] A long delay gives rise “to a general presumption of prejudice”. 20

[25] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 21

[26] The period of the delay in this matter was three days. That is a short period of delay.

[27] In its outline of argument, the respondent asserts that the lateness of the Application would prejudice the respondent; however, no supporting evidence was adduced by the respondent in this case.

[28] Noting that the delay was three days, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[29] The applicant contends that his employment was terminated as a result of him exercising a workplace right, namely the applicant made complaints in relation to his conditions of employment, unpaid overtime and the behaviour of a supervisor.

[30] The respondent denies the applicant’s contention that it has contravened s.340 of the Act and submits that the applicant was dismissed as a result of a lengthy performance management process.

[31] The resolution of the contested factual question concerning the reason(s) for the termination of the applicant’s employment will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[32] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 22 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[33] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[34] Having taken into account the matters referred to in paragraphs [12] to [33] above, I am, on balance, satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were out of the ordinary course, unusual, special and uncommon, in that he acted reasonably and diligently to instruct a solicitor to file his Application on time and he believed they would do so. The sole reason for the three day delay was the error by the applicant’s solicitor. Those matters, together with the other factors under s.366, lead me to conclude that there are exceptional circumstances in this case. The exceptional circumstances threshold having been met, I am also satisfied that it is appropriate to exercise my discretion to extend time.

[35] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I will issue an order extending time [PR587820].

COMMISSIONER

Appearances:

Mr V Maroulis, solicitor from Marrickville Legal Centre, on behalf of the applicant;

Mr R Heyward, Manager Legal and Compliance, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

November, 23.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Secction 366(2) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 11   [2016] FWCFB 349 at [31]

 12   That is, 21 days from 12 September 2016 (not including 12 September) is 3 October 2016.

 13   Acts Interpretation Act 1901 (Cth) ss.36(2)-(3)

 14   That is, 7 October 2016 is three days after 4 October 2016.

 15   Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418‒42

 16   Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at [24]-[25] and the authorities cited therein

 17   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 18   Ibid.

 19   Ibid.

 20   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 21   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 22   [2016] FWCFB 6963

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