Mr Gaurav Katal v IHS Markit Group (Australia) Pty Ltd
[2025] FWC 1423
•23 MAY 2025
| [2025] FWC 1423 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gaurav Katal
v
IHS Markit Group (Australia) Pty Ltd
(U2025/4622)
| COMMISSIONER TRAN | MELBOURNE, 23 MAY 2025 |
Application for an unfair dismissal remedy - Application made out of time - Extension of time not granted - Application dismissed.
Before considering whether a dismissal is unfair the Fair Work Commission must first be satisfied that an application was made within time or allow a further period of time under section 394 of the Fair Work Act 2009 (Cth).
On 15 April 2025, Mr Gaurav Katal applied to the Commission for an unfair dismissal remedy. The respondent is IHS Markit Group (Australia) Pty Ltd
There is no dispute between the parties that the employer dismissed Mr Katal, and that the dismissal took effect on 3 March 2025. The statutory time period of 21 days ended at midnight on 24 March 2025. Mr Katal’s application filed on 15 April 2025 was therefore filed 22 days after the end of the statutory time period.
In order to extend time, I must be satisfied that there are exceptional circumstances, having regard to the factors in section 394(3) of the Act. Those factors are:
- the reason for the delay;
- whether the applicant first became aware the dismissal after it took effect;
- any action taken by the person to dispute the dismissal;
- any prejudice that might be caused to the employer including prejudice caused by the delay;
- the merits of the application; and
- fairness as between the applicant and other persons in a similar position.
Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[1] establishes the following:
- the Commission must consider all of the circumstances;
- the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
- but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
- a single event can be exceptional;
- a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon.
Whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[2]
The parties filed submissions, witness statements and evidence in accordance with my directions and I held a determinative conference on Friday 23 May 2025.
Having considered all the oral and written submissions and evidence, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. I have found that no factor weighs in favour of exceptional circumstances. I am of the view that the following factors neither weigh in favour nor against exceptional circumstances: when Mr Katal became aware of his dismissal; action taken to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness as between the applicant and other persons in a similar position. Last, I am of the view that the reason for delay weighs against a finding of exceptional circumstances. The application is dismissed. My reasons follow.
Factors that were neutral in relation to ‘exceptional circumstances’
Mr Katal first became aware of his dismissal when it took effect when he was notified verbally and in writing on 3 February 2025 that his employment would end on 3 March 2025, after a period of garden leave. While Mr Katal made submissions that confusion arose about his termination date because of further correspondence sent to him on 28 February 2025 that referred to his termination date being 28 February 2025, Mr Katal himself was not confused about his termination date. This is evident from Mr Katal questioning the employer on the incorrect date.
Mr Katal took action to dispute the dismissal during his garden leave period. He and the employer signed a severance agreement on 12 February 2025. The employer was entitled, as they submitted, to take the signing of the severance agreement as resolving the dispute around his dismissal. The action taken by Mr Katal following the signing of the release agreement related to his disagreement with the employer’s allegations that he had breached the terms of the severance agreement and the employer’s policies. This was not action that put the employer on notice that Mr Katal was actively contesting the employer’s decision to dismiss him.[3]
The employer made submissions about prejudice, including prejudice caused by the delay, but did not press that the prejudice weighed against a finding of exceptional circumstances. The delay of 22 days is not a short period of time but the prejudice that the employer may experience is no more than what is ordinarily required to respond to an unfair dismissal application. The delay is also not so lengthy that relevant evidence and witnesses would not be available.
My assessment of the merits of the application for the purposes of the question before me (whether to grant an extension of time) is primarily whether the Applicant has an arguable case. It does not require a detailed analysis of the substantive merits.[4] The Full Bench in Long v Keolis Downer T/A Yarra Trams stated that in relation to this factor, the Commission is not in a position to make findings of fact on contested issues, and nor should parties be required to present their evidentiary cases twice.[5] Mr Katal made extensive submissions about the merits but also about events after his dismissal took effect relating to the severance agreement and allegations that he had breached it. In relation to the merits of his unfair dismissal application, the employer says that it dismissed Mr Katal for the reason of genuine redundancy and that it had consulted appropriately, although not required to do so by any relevant industrial instrument. Mr Katal argued that the redundancy was not genuine and that the process, including consultation and offers of redeployment, were not fair. My assessment of the merits of Mr Katal’s substantive matter is that it is not entirely devoid of merit and so I consider this factor neither weighs in favour nor against a finding of exceptional circumstances.
Considering fairness between the application and other persons in a similar position relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission,[6] and may involve a comparison of cases involving similar facts.[7] Neither party took me to any relevant cases with similar facts; nor am I aware of any.
Factor that weights against ‘exceptional circumstances’
I find that Mr Katal has not provided acceptable reasons for his delay of 22 days. The period, being ‘the delay’ that I am required to consider is the period beyond the specified 21 days.[8] In this matter, it is the period after 24 March 2025, although the circumstances from the time of dismissal must also be considered to determine whether there is an acceptable reason beyond the 21-day period.[9]
Mr Katal says that the reasons for his delay included that he experienced medical emergencies that required a hospital visit and travel overseas to consult with his family doctor as well as negotiating with the employer and the delays that resulted from the employer not responding to him during that negotiation. Mr Katal also said the delay resulted from seeking legal advice.
In relation to his medical reasons, Mr Katal provided evidence of hospital and doctor visits and medical testing appointments. Each of the dates of those events was prior to his employment end date and none of them provided information about how Mr Katal’s capacity to make an application was affected by the medical issues. I do not find these acceptable reasons for Mr Katal’s delay.
Mr Katal’s reasons relating to negotiating with his employer also do not relate to the period of the delay. The employer informed Mr Katal categorically on 26 March 2025 that it would not make an ex-gratia payment to him, although it had informed him on 28 February, 6 March and 12 March that it would do so provided he signed an attestation letter. Mr Katal offered no acceptable reasons for why he continued to delay lodging his unfair dismissal application for a further 20 days after the clear communication on 26 March 2025 that there was no further negotiation. Mr Katal did reiterate that his health, his desire to resolve the matter and awaiting a response from the employer explained the delay. I do not find these acceptable reasons for a 22-day delay.
Last, Mr Katal said that the delay was also due to seeking legal advice, which related to his lack of knowledge and familiarity with the Acts requirements and the Commission’s processes. The Full Bench in Du v University of Ballarat[10] that:
“it is not out of the ordinary course, unusual, special or uncommon for employees whose employment has ceased to not be aware of the law and to be unable to pay for advice or afford legal costs.”
Even taken together with Mr Katal’s other reasons, I do not consider that Mr Katal’s lack of knowledge and familiarity with unfair dismissal laws and his need to seek legal advice are acceptable reasons for the delay, and this therefore does not weigh in favour of exceptional circumstances.
Conclusion and Order
I am of the view that none of the factors weigh in favour of a finding of exceptional circumstances, so I cannot extend time within the Act.
I order that Mr Gaurav Katal’s application for an unfair dismissal remedy under FWC Matter No U2025/4622 made on 15 April 2025 is dismissed.
COMMISSIONER
Appearances:
Mr Gaurav Katal on his own behalf
Mr Karl Rozenbergs of Hall & Wilcox, with permission on behalf of the Respondent
Hearing details:
Melbourne
23 May 2025
Via Microsoft Teams
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39]
[3] Nicolas JR v Nortask Pty Ltd[2014] FWC 5324 at [67]
[4] see Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [48]; also, Sutton v Hepburn Shire Council [2022] FWCFB 109 at [26]
[5] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [72]
[6] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]
[7] Croker at [49]
[8] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
[9] Long v Keolis Downer [2018] FWCFB 4109 at [40]
[10] Dr Bing Du v. University of Ballarat, [2011] FWAFB 5225 at [31]
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