Mr Gaurav Nanda v Health Services Union

[2023] FWC 43

[2023] FWC 43

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Gaurav Nanda
v

Health Services Union

(C2022/6496)

DEPUTY PRESIDENT CROSS SYDNEY, 11 JANUARY 2023

General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed.

1. Mr Gurav Nanda (the Applicant) made an application (the Application) to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from his employment with the Health Services Union (the Respondent) in contravention of Part 3-1 of the Act.

1. The Respondent has objected to the Application on the ground that the Application is out of time.

When must an application for the Commission to deal with a dismissal dispute be made?

1. Section 366(1) of the Act provides that such an application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

1. It is a matter of record that the Application was made on 11 January 2022.

When did the dismissal take effect?

1. It is not in dispute, and I so find, that the dismissal took effect on 30 August 2022.

Was the application made within 21 days after the dismissal took effect?

1. As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

1. As I found above, the dismissal took effect on 30 August 2022. The final day of the 21 day period was therefore 20 September 2022, and ended at midnight on that day. The Application was made on 21 September 2022, at 8.19pm. The application was made one day late.

1. As the Application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Was the application made within such further period as the Commission allows?

1. Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and

(b)   any action taken by the Applicant 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 Applicant and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.

Reason for the delay

1. For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 20 September 2022. The delay is the period commencing immediately after that time until the date the Application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]

1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]

1. The Applicant submitted, in his Form F8, that the delay was for the following reasons:

Reasons for delay

1)I got terminated on the 30th. My Mom had a heart attack on the 31st. Moved back to Melbourne on the 1st. I was supposed to fill out the form earlier, but couldn’t due to this.

2)Almost sent this through on the 21st day. Filled out the whole form with auto save on, attached the document to the email to find out that the form did not auto save. Had to fill out the form all over again.

1. In submissions relied by the Applicant, he provided on the following further reasons:

3)Reasons of termination were not clearly set out in the termination letter for me to respond in a timely manner, technical error of autosave

4)I was attending to urgent needs right after my termination and filled out the form as soon as I could attend to it.

5)          Concerned about the health and safety

5)1 day out of time due to the reasons given above are exceptional circumstances because

-     It’s out the ordinary such incidences will occur at the same time

-     Unusual and requires immediate attention

-     Actions that I could not take to dispute the dismissal

1. The Respondent noted that the Commission’s task in assessing whether the Applicant has an acceptable or credible reason for the delay is to first assess the reason provided for the delay from when the timeframe to lodge the application expired, until the time the Application was ultimately lodged, and submitted that Applicant had not provided any explanation for this delay.

1. The Respondent further submitted that the Commission must also have regard to any circumstances from the date the dismissal took effect when assessing whether the explanations proffered for the delay are acceptable or credible explanations, and submitted that these also did not provide any acceptable explanations for the delay.

Conclusion Regarding Delay

1. None of the explanations for delay proffered by the Applicant were acceptable or credible reasons for that delay, either for the period after the expiry of the 21 day limitation period, or the period post termination.

1. While the Applicant referred to his Mother’s heart attack on 31 August 2022, the evidence filed by the Applicant demonstrates that his mother was discharged from hospital by 2 September 2022. The medical condition of his mother did not prevent or affect his ability to file the Application in the Commission prior to 20 September 2022.

1. Further, while the Applicant moved to Melbourne from Sydney on 1 September 2022, it was not explained, nor could there have been any rational basis for contending, that moving house 19 days before the final filing date could have precluded filing within time.

1. The Applicant submitted that the delay in filing his Application was due, in part, to the Form F8 not autosaving when he completed it at approximately 11pm on the 20 September 2022. Such technological difficulties are not unusual, and certainly are not so exceptional to constitute an acceptable explanation for delay. However, it is of note that notwithstanding that the Applicant was aware of the technological difficulties faced he chose to go to bed and not complete the Application until late the following day.

1. The Applicant did raise as an issue that the termination letter of 30 August 2022, had to be re-issued the following day due to a typographical error relating to his name. That error did not, however, provide a reason for delay, and it was clear that the Applicant had always proceeded on the basis that he had been terminated on 30 August 2022, in a meeting that occurred on that day.

1. Dealing with the balance, and totality, of the reasons proffered by the Applicant for the delay, it became apparent that while the Applicant was aware of the 21 day limitation period, he simply chose to prioritise other activities. That was apparent from his reply submission, where he submitted:

How would we prioritise in my situation, what would you do? Take four day[s] out of the 21 days due to weekends, what’s left? 16 days. With all that has been going on in my life, minus the 3 days of me moving back, what’s left? 13 days. Minus the hours that I am putting in driving rideshare, and attending to my child who comes home every other weekend, what’s left? Furthermore, should I be looking for another job?

1. The Applicant’s disregard of the 21 day limitation period was all the more inexplicable when it emerged that the Applicant had over seven years experience as a Union official with another Union.

1. Having regard to the above, I am satisfied that the Applicant has not provided an acceptable explanation for all of the period of the delay, and that is a factor that weighs against the Applicant in this matter.

What action was taken by the Applicant to dispute the dismissal?

1. The Applicant did not take action to dispute his dismissal prior to making the Application. This consideration ordinarily enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. Nonetheless, I consider this factor weighs against the Applicant in this matter.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. The Respondent submitted it suffered prejudice because of the delay, and it should not be put to bear the cost of defending an application which is clearly out of time.

1. I find that, in the circumstances there would be no prejudice to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice, significant or otherwise, is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is a neutral consideration.

What are the merits of the Application?

1. An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter that the Commission is required to take into account in assessing whether there are exceptional circumstances.

1. Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[6]

1. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. The merits of the Application are a neutral consideration.

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

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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.[8]

1. It is clear that the factors that have been accorded any weight in this matter, being the absence of an acceptable reason for the delay and failure to take action to dispute the dismissal, are both factors that weigh in the Respondent’s favour.

1. Having regard to all of the matters listed at s.366(2) of the Act, I am satisfied that there are not exceptional circumstances.

Conclusion

1. Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s Application for the Commission to deal with a dismissal dispute is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr G Nanda, on his own behalf.
Ms E Delpiano, of the HSU.

Hearing details:

2022.
December 20.
Sydney (via videoconference).

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

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