Mr Dhaval Brahmbhatt v Sydney Tools Pty Ltd
[2023] FWC 1874
•31 JULY 2023
| [2023] FWC 1874 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Dhaval Brahmbhatt
v
Sydney Tools Pty Ltd
(C2023/3585)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 31 JULY 2023 |
Application to deal with contraventions involving dismissal – late lodgement – failure to provide written notice of dismissal – ineligible unfair dismissal application – exceptional circumstances – time for late lodgement extended
On 20 June 2023 Dhaval Brahmbhatt (Mr Brahmbhatt or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with his dismissal.
Mr Brahmbhatt’s application is against his former employer Sydney Tools Pty Ltd (Sydney Tools, the respondent or the employer), which he alleges committed the contraventions.
The respondent opposes the application. It filed a response on 5 July 2023 raising a jurisdictional issue. It claims that the application is out of time and that time should not be extended.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue if Mr Brahmbhatt’s application is to proceed further.
I issued directions on 13 July 2023.
I heard the jurisdictional matter on 27 July 2023.
Mr Brahmbhatt was self-represented. Sydney Tools was represented by in-house counsel.
I heard evidence from Mr Brahmbhatt. Sydney Tools did not adduce oral evidence. Mr Brahmbhatt was a conscientious witness who, to the best of his recall, gave evidence clearly and largely without embellishment. He remained consistent in cross examination. Generally, I consider his evidence a reliable basis on which to make findings particularly where supported by the documentary record.
Facts
Sydney Tools is a Sydney-based private business in the retail industry.
Mr Brahmbhatt commenced working for the business as a salesperson in Adelaide on 17 April 2023. He worked for five weeks. He was dismissed on 25 May 2023.
On 6 May 2023 Mr Brahmbhatt says he asked his manager for a pair of gloves and a knife to assist opening boxes and moving stock. He says his request was denied. Sydney Tools say the request was met once authorised.
On 23 May 2023 Mr Brahmbhatt says he told his manager that he did not believe he was provided breaks as required by the General Retail Award. Sydney Tools deny any breach of the award.
On 25 May 2023 Mr Brahmbhatt was called to a meeting where he was told by two managers that he was dismissed for performance reasons.
The managers had in their possession a termination letter. They read in part from it when Mr Brahmbhatt questioned the stated reason. Mr Brahmbhatt was asked to sign the termination letter. He refused, saying that he first wished to speak to human resources before signing. The termination letter was not given to him. Mr Brahmbhatt asked that the letter be emailed to him. It was not subsequently sent to him.
On 26 May 2023, the day after being dismissed, Mr Brahmbhatt emailed the human resources officer who had hired him five weeks earlier (Mr El-Beainy):[2]
“Hi Nabih
I am sure you would have heard by now what happened to me. I have attached a letter to tell you my side of the story and asking for fairness…”
Mr Brahmbhatt’s letter[3] set out reasons why he considered the dismissal unfair.
On 2 June 2023 (one week after dismissal) three emails were exchanged between Mr Brahmbhatt and Mr El-Beainy. Mr El-Beainy advised that entitlements on termination had been paid. Mr Brahmbhatt asked for a “letter of service” and that “he needed something to act on it accordingly”.
On or about 2 June 2023, Mr Brahmbhatt also telephoned the Fair Work Ombudsman. He was advised of the ability to make unfair dismissal claims to the Commission, and that they needed to be made within 21 days of a dismissal taking effect.
Four days later, on 6 June 2023 Mr Brahmbhatt again wrote to Mr El-Beainy. He advised that he had not yet received a “separation letter” and again asked for one.
On 7 June 2023 Mr El-Beainy responded. He apologised for the delay (on account of being absent from work). He advised that he had “just sent your details to payroll to send the separation letter”. Mr Brahmbhatt also spoke by telephone to Mr El-Beainy on 7 June, confirming the need to receive written confirmation of termination from Sydney Tools.
On 8 June 2023 (two weeks after dismissal) Mr Brahmbhatt again sent an email to Mr El-Beainy:[4]
“good morning Nabih
I have not yet received any communication about my separation with sydney tools. It has been many days since the decision was made. I am running out of patience. I will wait until end of business today before taking any action against this.
Thanks you
Kind regards
Dhaval Brahmbhatt”
Mr Brahmbhatt heard nothing from Sydney Tools between 8 and 15 June 2023.
On 15 June 2023 Mr Brahmbhatt realised that it was the twenty-first day after being dismissed, and that if he was to take action it needed to be taken that day even though he had not received written confirmation of termination from Sydney Tools.
On 15 June 2023 Mr Brahmbhatt made an unfair dismissal application (dated the same day) to the Commission under s 394 of the FW Act.[5] He paid the filing fee that day.[6]
On 16 June 2023 Sydney Tools sent Mr Brahmbhatt an Employment Separation Certificate.[7] The Certificate was dated 16 June 2023. It stated that Mr Brahmbhatt was terminated for unsatisfactory work performance.
On 19 June 2023 Mr Brahmbhatt was sent two letters by the Commission.[8] The first was acknowledgement of the claim. The second advised that the Commission “may not have the power to deal with your case” as the minimum employment period may not have been met. He was given until 3 July 2023 to respond to the minimum employment period issue.
This was the first Mr Brahmbhatt was aware that he may not have been eligible to make an unfair dismissal application.
Mr Brahmbhatt immediately (19 June 2023) telephoned the Commission. The minimum service requirement was explained to him by a client services officer. He was informed about general protections applications.
On 20 June 2023 Mr Brahmbhatt discontinued his unfair dismissal claim and made a general protections application.
Mr Brahmbhatt’s application under s 365 of the FW Act (general protections application involving dismissal) alleges that adverse action (dismissal) was unlawfully taken against him for having exercised workplace rights.
Submissions
Mr Brahmbhatt
Mr Brahmbhatt submits that an extension of time should be granted because:
he was not provided the letter of dismissal or other written confirmation of dismissal despite repeated requests in the days and weeks that followed dismissal;
he made an unfair dismissal application within twenty-one days challenging his dismissal;
due to the fact that he is not experienced in legal matters, he was not aware at that time of the minimum employment obligation or that he was not eligible to make an unfair dismissal application;
as soon as he was made aware of his error, he made the current general protections application;
the employer did not provide an Employment Separation Certificate until the twenty-second day after dismissal; and
the employer is not disadvantaged by having to deal with the current application as it is based on the same facts that it would have had to defend his unfair dismissal claim.
Sydney Tools
Sydney Tools submit that the application is out of time and that time should not be extended because the circumstances are not exceptional.
Sydney Tools submit that Mr Brahmbhatt waited until the twenty-first day to challenge the dismissal. In doing so he risked making an error resulting in a late application.
Sydney Tools submit that an error borne of ignorance of the law is not an acceptable reason for delay.
Sydney Tools submit that the Employment Separation Certificate was not required in order to make an application within time because it contained no additional relevant information than what Mr Brahmbhatt was told on the day he was dismissed
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 366 provides a time limit for the filing applications:
“366 Time for application
(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 FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC 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.”
Mr Brahmbhatt’s application states that it is not out of time. This is not correct. As Mr Brahmbhatt’s dismissal took effect on 25 May 2023, the application is five days out of time. The application can only proceed if Mr Brahmbhatt establishes “exceptional circumstances” within the meaning of s 366(2).
I now consider whether an extension of time should be granted for the late lodgement.
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[9]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[10] A decision whether to extend time under s 366(2) involves the exercise of a discretion.[11]
I apply s 366(2) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[12]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[13]
I now consider each of the factors in s 366(2).
Reason for delay (s 366(2)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[14] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[15]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[16] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[17]
In this matter, the delay period is the five days between 16 June and 20 June 2023 inclusive.
The reasons advanced by Mr Brahmbhatt are that:
he was not provided the letter of dismissal or other written confirmation of dismissal despite repeated requests in the days and weeks that followed dismissal;
he made an unfair dismissal application within twenty-one days challenging his dismissal;
due to the fact that he is not experienced in legal matters, he was not aware at that time of the minimum employment obligation or that he was not eligible to make an unfair dismissal application;
as soon as he was made aware of his error, he made the current application (within 24 hours); and
the employer did not provide an Employment Separation Certificate until after the 21 day period.
That Mr Brahmbhatt made an unfair dismissal application within twenty-one days challenging his dismissal by way of an unfair dismissal application is an indication of a genuine desire on his part to litigate his dismissal in the Commission.
Mr Brahmbhatt left that challenge until the last day of the statutory time period. He gave himself little or no leeway for error. Ordinarily this would count against a dismissed employee seeking an extension of time.[18] However, the circumstances matter. Here, Mr Brahmbhatt has a reasonable explanation for doing so. He was actively waiting for the employer to send him written confirmation of dismissal. The evidence establishes that:
Mr Brahmbhatt was not provided the letter of termination on 25 May 2023 despite it apparently being in the possession of the managers that dismissed him;
Mr Brahmbhatt was not subsequently provided the letter of termination despite asking for it;
Mr Brahmbhatt was not provided a statement of service despite asking for it; and
Mr Brahmbhatt was not provided a separation certificate in a timely manner despite asking for it.
As a general proposition, it is reasonable that a dismissed employee be provided written notice of dismissal and its reason, particularly when asked for and where practicable to do so. Aside from the fact that s 117 of the FW Act requires an employer to provide written notice to certain employees, written notice acts as a basis on which a dismissed employee can seek out advice, do so without relying on their memory of what might have been said at the time of dismissal, consider the merits of the employer’s reasons in the cold light of day and dispassionately assess their options.
Without written notice, all Mr Brahmbhatt knew was that he had been dismissed for ‘performance’ reasons but he did not have the particulars of those alleged shortcomings.
I do not accept that Sydney Tools had any reasonable grounds for not providing the termination letter to Mr Brahmbhatt at the time of dismissal. It matters not that Mr Brahmbhatt refused to sign the termination letter. It should be hardly surprising to an employer that a dismissed employee, especially one dismissed without prior warning, might consider it contrary to their interests to sign anything let alone the dismissal letter. To the extent that Sydney Tools was asking for a signature to simply confirm receipt of the termination letter, it was entirely within the province of the employer to make a notation in its own records that a letter had been given but receipt not counter signed when requested.
It matters not that, in fact, Mr Brahmbhatt was able to file these proceedings without a termination letter (which has still not been provided) or was able to file the unfair dismissal application without the Separation Certificate. The relevant issue is that the absence of being provided written confirmation reasonably explains why Mr Brahmbhatt waited until the last day.
Overall, this was unreasonable conduct by Sydney Tools which explains why Mr Brahmbhatt waited until the last day to file his application. He had requested confirmation of dismissal in writing and it was not provided. Moreover, he had been attentive in following up his requests and yet still nothing was sent until the twenty-second day, and then only the Employment Separation Certificate for Centrelink purposes, and not the termination letter.
Mr Brahmbhatt invited me to make a finding that Sydney Tools deliberately withheld sending written confirmation of his dismissal until the twenty-second day in order to frustrate his rights to file applications within twenty-one days.
Whilst it is correct that the Employment Separation Certificate was not sent until the twenty-second day and is dated the twenty-second day, and that no reasonable explanation was given for why it was sent on that day and not earlier, I do not make such a finding for two reasons. Firstly, it is not necessary to do so. In the extension of time context it is ultimately Mr Brahmbhatt’s conduct I am assessing, not the employer’s. Secondly, whilst grounds exist to make an inference, a finding of deliberate or reckless intent requires a high level of satisfaction given that it is a serious matter to suggest that an employer has deliberately frustrated the exercise of legal rights by administrative action on its part.
That said, I use this decision to caution employers generally that not only do they have an obligation to comply with s 117 of the FW Act to provide written notice of dismissal to employees to whom that section applies, but also that a failure, whether deliberate or not, to provide written notice in a timely manner is likely to be to their disadvantage should applications be made challenging dismissals which require extensions of time.
However, in this matter, the explanation for the delay is not solely based on the fact that Mr Brahmbhatt filed his unfair dismissal application on the last permitted day because he was waiting for written confirmation and in doing so left himself no time to rectify error. The explanation for delay is ultimately one of error borne of ignorance of the statutory eligibility rule.
This aspect of the explanation weighs somewhat but less weightily in favour of Mr Brahmbhatt. That Mr Brahmbhatt was unaware that he was ineligible to make the unfair dismissal claim explains its subsequent discontinuance five days later after the legal requirement to have served a minimum employment period was drawn to his attention by a Commission officer. However, it is well established that mere ignorance of unfair dismissal laws (such as time frames or eligibility) is not in and of itself an acceptable reason for delay. I take into account that Mr Brahmbhatt is not versed in the Australian legal system. However, the Commission publishes information about unfair dismissal laws (including eligibility) in simple language on a readily accessible government web site. Other agencies of government do likewise and advisory services exist.
That Mr Brahmbhatt made the general protections application as soon as he was made aware of his ineligibility weighs somewhat in his favour. It clearly establishes that the current application is intended to be in substitution for the first application.
Considered overall, the explanations for the delay weigh materially in favour of a finding of exceptional circumstances.
Action taken to dispute dismissal (s 366(2)(b))
By filing his unfair dismissal application on 15 June 2023 Mr Brahmbhatt clearly took action to dispute his dismissal. It was discontinued before the employer was aware of it. The only notification the employer had of the dismissal being legally challenged was when it was notified by the Commission about the general protections application and served with that proceeding. However, on 8 June 2023 (one week before filing any claim) Mr Brahmbhatt had expressly put the employer on notice of his intention to take action.
This weighs somewhat in favour of a finding of exceptional circumstances.
Prejudice to the employer (s 366(2)(c))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[19]
If time is extended, a claim would have to be further responded to by the employer, involving time and cost. However, that prejudice, whilst real, is not unique. I take into account that the employer is now facing a different proceeding than an unfair dismissal application and one that may involve greater time and cost if dealt with by the Court rather than the Commission. However, as Mr Brahmbhatt was ineligible to make the unfair dismissal application by necessity a different proceeding needed to be instituted.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[20]
This is a neutral consideration.
Merits of the application (s 366(2)(d))
A hearing would concern whether the employer dismissed Mr Brahmbhatt for an unlawful reason.
Further evidence on these matters would be required to make relevant findings. Noting the reverse onus of proof in the FW Act, it is premature to express a view on that question.
This is a neutral consideration.
Fairness between persons in similar position (s 366(2)(e))
In this matter, this is not a relevant factor.
Conclusion
The period of delay being five days, in the context of a statutory twenty-one day time frame, is not insignificant.
The explanation for the delay weighs materially in favour of a finding of exceptional circumstances. It is unusual that a dismissed employee is not provided written confirmation of dismissal on request, especially where that written confirmation was in the possession of the employer at the time of dismissal, and then requested.
The decisive considerations in this matter are that:
Mr Brahmbhatt was not provided written notice of his dismissal despite it being requested and this explains why he waited until the twenty-first day to contest the dismissal;
in filing an unfair dismissal claim on the twenty-first day Mr Brahmbhatt was expressing a genuine desire to challenge his dismissal; and
Mr Brahmbhatt acted immediately to make a general protections claim once advised that he was ineligible make the unfair dismissal claim he had lodged five days earlier and then discontinued.
These considerations trump the fact that the error made by Mr Brahmbhatt was borne of ignorance and one that could have been avoided had he been more attentive to the publicly available information about unfair dismissal eligibility.
For these reasons I find that the overall circumstances for late lodgement are exceptional. The discretion to extend time is enlivened. There are no reasons not to do so. It is appropriate to do so.
In arriving at this decision, I make it clear that I am not applying a decision-rule to the effect that substituting an in-time but ineligible unfair dismissal application for a late but eligible general protections application necessarily warrants an extension of time. A decision-rule of this type would be impermissible as extension of time matters require all relevant considerations to be taken into account. This matter is decided on its facts including the employer’s prolonged failure to provide written notice of dismissal when it had been requested.
As time for late lodgement has been extended, application C2023/3585 will proceed to conciliation and the Commission will exercise its powers under s 368 of the FW Act.
An order giving effect to this decision will be issued in conjunction with its publication.[21]
DEPUTY PRESIDENT
Appearances:
Mr D Brahmbhatt on his own behalf
Mr P Haklany and Mr C Huntington of Sydney Tools Pty Ltd
Hearing details:
Adelaide (by video)
27 July
[1] [2020] FCAFC 152
[2] A3
[3] R1
[4] A3
[5] A6
[6] A5
[7] A4
[8] A7, A8
[9] Smith v Canning Division of General Practice[2009] AIRC 959
[10] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[11] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[12] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[13] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[14] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[16] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[17] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[18] Shaw v Australia and New Zealand Banking Group Limited [2014] FWC 3903, [28]
[19] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[21] PR764699
Printed by authority of the Commonwealth Government Printer
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