Mr Hitesh Guha v Bond Transport & Maintenance Pty Ltd
[2025] FWC 640
•6 MARCH 2025
| [2025] FWC 640 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Hitesh Guha
v
Bond Transport & Maintenance Pty Ltd
(C2024/9041)
| COMMISSIONER CONNOLLY | MELBOURNE, 6 MARCH 2025 |
General protections involving dismissal application – request for an extension of time – application dismissed.
This decision concerns an application by Mr Hitesh Guha (the Applicant) for relief under the general protections provisions involving dismissal pursuant to s 365 of the Fair Work Act 2009 (the Act).
The Applicant’s employment with Bond Transport & Maintenance Pty Ltd (the Respondent) was terminated with effect from 19 November 2024. The general protections involving dismissal application (the application) was lodged on 11 December 2024.
Section 366(1) of the Act states that an application such as this must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 10 December 2024. The application was therefore filed 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made. The Respondent opposes this request and raises an additional objection that the Applicant is not an employee.
The Act allows the Commission to extend the period within which a general protections involving dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1] 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.[2]
The requirement under s 366(3) that there be exceptional circumstances before time can be extended contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged. This is exercisable simply if, in all the circumstances, the Commission considers that it is ‘fair’ to do so.
Section 366(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application
Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant’s favour, however all the circumstances must be considered.[3]
The Applicant cited several matters as reasons for the delay in lodging the application. These reasons include that he needed more time to seek legal assistance, and that he is involved in separate Family Court proceedings involving custody of his daughter and other legal proceedings regarding the requirements of an AVO. He asserts that the financial impact of his dismissal has exacerbated these issues, which further limited his ability to file within time. Additionally, the Applicant submits that the combined impact of each of these circumstances and the challenges that he has been facing had negatively impacted his mental health and overall capacity to meet the 21-day requirement.
In proceedings, the Applicant also referred to the social and psychological support he is receiving in relation to his AVO requirements as evidence of his mental health challenges.
I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. In proceedings, the Applicant acknowledged that he did not seek legal advice until after filing his application with the Commission. His evidence that he took steps to dispute his dismissal immediately after his termination through contact with the Respondent is disputed. It is the Respondent’s submission that the Applicant was in fact terminated on 18 November 2024, and that he has not been in contact with him since this time disputing his termination.
I accept that the Applicant’s challenges in the Family Court, being unable to see his daughter and the reality of complying with his AVO requirements would have had an impact on him during the relevant period. However, there is no evidence before me to conclude these responsibilities had any impact on his capacity to file his application. Further, I note that the Applicant has not presented any evidence to support his submissions. In proceedings, the Applicant acknowledges he has been dealing with these other Family Court matters since towards the end of 2023. Furthermore, when pressed on identifying dates in which he was required to present in relation to these proceedings, he was only able to indicate he was required on 25 September 2024 and 21 December 2024. Neither of these dates are within the 21 days or the period of delay and do not support his position.
As to the financial challenges confronted by the Applicant because of his dismissal and the compounding impact this had because of other legal proceedings and costs he was facing, I have had regard to this factor. It is well established, however, that employees facing dismissal will be confronted with the stress and pressure associated with losing an income. I do not accept this factor supports a conclusion of there being a valid reason for the delay.
In reaching this conclusion, I have had regard to the fact the period of delay is relatively short. The Applicant submits that this short delay counts in his favour. On its own, however, this factor does not take his explanation further. There must be an acceptable reason for the delay.
I am not satisfied the Applicant has presented any other reasonable explanation as to why his application was not filed with the Commission until 10 December 2024.
This fact, in addition to those set above, weigh against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the general protections not involving dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
The Applicant’s evidence is that he took steps to dispute his application by contacting the Respondent on multiple occasions after his dismissal. The Respondent does not accept this to be the case and asserts the Applicant indicated he would be contacting Fair Work the day he was dismissed. The Applicant has not presented any evidence to the Commission to support his version of events. In these circumstances, I am unable to make a finding for or against the Applicant’s case, and regard this as a factor that should be weighed neutrally in relation to this application.
Prejudice to the employer
The Applicant submits that there is no prejudice arising for the Respondent should his application be permitted to proceed. The Respondent submits that allowing the application to proceed, despite its objection that it is out of time, gives rise to a prejudice against the employer. I have considered these submissions, and I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances and consider this a neutral factor.
Merits of the application
The Act requires me to take into account the merits of the application when considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed, and I do not repeat them in detail here.
In summary, the Applicant identifies a series of concerns and complaints he raised, including safety complaints and being treated differently as to reasons for the ending of his employment. The Respondent denies these assertions and submits the Applicant was in fact a contractor whose engagement ended due to performance concerns. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
In reaching this conclusion, I have had regard to the Respondent’s additional objection that the Applicant is a not an employee of the Respondent but an independent contractor and therefore not eligible to bring a general protections application involving dismissal. While I have not made a finding in relation this matter, it is a further question that would need to be determined had the extension of time been granted.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application involving dismissal. However, cases of this kind will generally turn on their own facts. In the present case, the Applicant has not identified any other person in a similar position that needs to be considered. Nor has the Respondent made any submission in this regard.
With this being the case and considering neither party brought any other relevant matter or decision of the Commission concerning this matter to my attention, I conclude this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s 366(3) of the Act, and all the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case; either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(3) of the Act. Accordingly, the application must be dismissed for want of jurisdiction
COMMISSIONER
Appearances:
Mr H Guha as the Applicant
Mr I. Bond on behalf of the Respondent.
Hearing details:
2025.
Melbourne (via videoconference).
26 February.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
Printed by authority of the Commonwealth Government Printer
<PR784931>
0
0
0