Mr Murtuza Shaik v Tata Consultancy Services Limited

[2024] FWC 1636

[2024] FWC 1636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Murtuza Shaik
v

Tata Consultancy Services Limited

(U2024/5198)

COMMISSIONER CRAWFORD SYDNEY, 21 JUNE 2024

Application for an unfair dismissal remedy –  Unfair dismissal application filed out of time – delay of 18 seconds – evidence not entirely clear about lodgment time – exceptional circumstances – extension granted.

Background

1. Murtuza Shaik (Mr Shaik) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he was unfairly dismissed by Tata Consultancy Services Limited (Tata).

1. Tata provides information technology services and solutions to businesses. Mr Shaik commenced full-time employment with Tata on 19 May 2021 as an Associate and was assigned to provide services to Westpac Banking Corporation (Westpac). Mr Shaik’s employment was terminated effective 18 April 2024 on the ground of redundancy.

1. Given Mr Shaik’s dismissal date of 18 April 2024, the 21-day period filing period prescribed in s.394(2) of the FW Act ended at midnight on 9 May 2024. There was some uncertainty regarding when Mr Shaik filed his Form F2 unfair dismissal application. The Commission’s records indicate Mr Shaik’s application was filed 18 seconds after midnight on 10 May 2024. Mr Shaik provided a copy of a confirmation email from the Commission’s online lodgment service which indicated his application was filed at around 11:30pm on 9 May 2024.

1. On 23 May 2024, Tata filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mr Shaik’s application was not filed within 21 days of the dismissal taking effect on 18 April 2024 and argued that an extension of time should not be granted. Tata also raised a jurisdictional objection on the basis that Mr Shaik’s dismissal was a case of genuine redundancy. 

1. I issued directions for the filing of material and listed a determinative conference/hearing for 20 June 2024 via video to determine whether Mr Shaik requires an extension of time and, if so, whether an extension of time should be granted.

1. Mr Shaik represented himself at the determinative conference/hearing on 20 June 2024. Tata was represented by Prabal Chatterjee (General Manager, Human Resources: Australia and New Zealand) (Mr Chatterjee) and Poornima Sinha (Human Resources) (Ms Sinha).

1. At the beginning of the proceeding on 20 June 2024 I indicated my provisional view was that I should conduct a less formal determinative conference as opposed to a hearing, given neither party was legally represented. There was no opposition from the parties. I conducted a determinative conference.  

Material filed

Mr Shaik

1. In addition to his Form F2 application, Mr Shaik relied on a witness statement dated 6 June 2024. Mr Shaik’s statement refers to him being shocked and upset about his dismissal and argues he was selected for redundancy because he took an extended period of leave in late 2023 and returned on 9 February 2024. Mr Shaik’s statement had the following documents attached:

·  A medical certificate from Dr Modasser Hossain dated 3 June 2024. The certificate confirms Mr Shaik’s son suffered an injury playing soccer and that Mr Shaik was required to look after him from 30 April 2024 to 2 May 2024.

·  An attendance certificate which confirms Mr Shaik’s daughter attended a dental appointment on 9 May 2024 and was accompanied by her father. 

1. I marked Mr Shaik’s statement Exhibit A1.

1. Mr Shaik answered some questions from me under an affirmation during the determinative conference and Mr Shaik was cross-examined on his evidence by Mr Chatterjee and Ms Sinha.

1. Mr Shaik made oral closing submissions at the end of the determinative conference.

Tata

1. Tata relied on its Form F3 employer response form and a submission filed on 13 June 2024. The submission contains a mixture of evidence and submissions and has two letters from Tata to Mr Shaik attached. A letter dated 11 March 2024 puts Mr Shaik on notice that his position had become redundant, and his employment would end on 18 April 2024, unless he could be redeployed. A letter dated 18 April 2024 confirms Mr Shaik’s dismissal. Mr Chatterjee confirmed the accuracy of the submission under an affirmation during the determinative conference. I marked the submission Exhibit R1.

1. Mr Chatterjee and Ms Sinha both provided additional evidence under affirmations during the determinative conference and were cross-examined by Mr Shaik.

1. Mr Chatterjee made oral closing submissions at the end of the determinative conference.  

Extension of time

1. Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

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

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

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

1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

1. The first issue I need to determine is when Mr Shaik’s application was made. Rule 17 of the Fair Work Commission Rules 2024 is directed at the Commission’s online lodgment system and states:  

   “Lodging documents using the FWC’s online lodgment facilities

   (1) A person may lodge a document that is required or permitted to be lodged with the FWC under these Rules using the FWC’s online lodgment facilities in accordance with the instructions provided by the FWC for the use of those facilities.

   Note: In 2024, the FWC’s online lodgment facilities (which include instructions for their use) were available on the FWC’s website ( a document lodged in accordance with this rule is an application commencing a matter:

(a) the General Manager must send an acknowledgment of lodgment, by email, to the person lodging the document; and

(b) the application is not taken to have been lodged until the acknowledgment of lodgment has been sent; and

(c) once the acknowledgment of lodgment has been sent, the application is taken to have been lodged at the time it was received electronically by the FWC.

(3) The FWC may collect personal information (including sensitive personal information) for the purposes of facilitating the lodgment of a document in accordance with this rule (whether or not the document is lodged).

Note: This subrule is an authorisation for the purposes of the Australian Privacy Principles.”

1. Given the discrepancy in lodgment times between the Commission’s records and the acknowledgement of lodgment email provided by Mr Shaik, I sought further information from the Commission’s data and digital staff. The response provided was to the effect that:

·  The correct lodgment time for Mr Shaik’s application is 18 seconds after midnight on 10 May 2024.

·  A reason cannot be identified for why Mr Shaik would have been sent a confirmation of lodgment email at 11:30pm. The PDF document provided by Mr Shaik cannot be compared to the email generated and received by the Commission.  

1. I explained the response I had received from the Commission’s staff to Mr Shaik during the determinative conference.

1. After hearing from the parties, I informed the parties that I had decided to rely on the Commission’s records and had determined that Mr Shaik’s application was filed around 18 seconds after midnight on 10 May 2024.

1. As a result, Mr Shaik needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

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

1. Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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)   whether Mr Shaik first became aware of the dismissal after it had taken effect; and

(c)   any action taken by Mr Shaik to dispute the dismissal; and

(d)   prejudice to the employer (including prejudice caused by the delay); and

(e)   the merits of the application; and

(f)    fairness as between Mr Shaik and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

Consideration

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 9 May 2024. The delay is the period commencing immediately after that time until 18 seconds after midnight on 10 May 2024, although circumstances arising prior to that period 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. Mr Shaik 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 Mr Shaik has not provided any reason for any part of the delay.[5]

1. The reasons provided by Mr Shaik for the 18-second delay in filing his application were:

·  Stress and distress caused by his dismissal.

·  Needing to care for his injured son on 30 April 2024 to 2 May 2024.

·  Having to take his daughter to a dental appointment on 9 May 2024.

·  Issues with the Commission’s online filing system which incorrectly states his application was filed after midnight on 10 May 2024. 

1. I do not consider the first three reasons provided by Mr Shaik constitute a satisfactory explanation for the delay.

1. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[6] Mr Shaik has not provided any medical evidence regarding his condition. Given this lack of evidence, I do not consider Mr Shaik’s medical condition provides an adequate explanation for the delay.

1. I do not accept Mr Shaik having to care for his son from 30 April to 2 May 2024 explains why he could not have filed the application either before or after those dates.

1. Mr Shaik admitted during cross-examination that his daughter’s dental appointment was in the morning on 9 May 2024 and that the whole process of travelling to and from the surgery and attending the appointment took less than two hours. I do not consider this appointment provides a satisfactory explanation for the delay.

1. However, I do accept that the potential issues with the Commission’s online lodgment system provide a satisfactory explanation for the delay of 18 seconds in Mr Shaik lodging his application. It is clear on the evidence that Mr Shaik was aware of the 21-day period and was attempting to file his application prior to midnight on 9 May 2024. There is some evidence that he achieved this, but I have preferred the evidence from the Commission’s records. Despite this, I do not consider the issue is clear and the Commission’s records indicate Mr Shaik completed the fee waiver section of the online application at 11:14pm on 9 May 2024. The Commission’s staff have indicated completing the lodgment process should only take around one minute after the waiver section is completed. The time that Mr Shaik completed the fee waiver section of the form is consistent with his argument that he submitted the application on 9 May 2024. 

1. I consider the extremely short period of the delay and the degree of uncertainty about precisely when the application was lodged means that Mr Shaik has a satisfactory explanation for the delay. I find this factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time.  

Did Mr Shaik first become aware of the dismissal after it had taken effect?

1. Mr Shaik accepted he became aware of the dismissal on the day it took effect, being 18 April 2024. I consider this to be a neutral factor.

What action was taken by Mr Shaik to dispute the dismissal?

1. Mr Shaik provided uncontested evidence that he contacted the Fair Work Ombudsman (FWO) and then the Commission on 9 May 2024 to seek advice about filing an unfair dismissal application. Mr Shaik states he was advised that 9 May 2024 was the final day of the 21-day period for filing an application. Mr Shaik believed that he met this deadline. I find these actions weigh marginally in favour of a finding of exceptional circumstances and the granting of an extension of time.

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

1. Tata did not argue it would be prejudiced if an extension of time is granted. That is not surprising given the delay was only 18 seconds. I consider this to be a neutral factor.

What are the merits of the application?

1. 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)”, or in this case, s.394(3)(e).[7]

1. Tata intends to argue Mr Shaik’s dismissal was a case of genuine redundancy as a jurisdictional objection to the unfair dismissal application. Mr Chatterjee gave persuasive evidence that Mr Shaik’s dismissal was one of many within Tata arising from changes with the needs of its client, Westpac. However, Mr Shaik contests that there was any change within his team and argues he was removed from the team because he was taking an extended period of leave. 

1. Given the significant degree of contested facts, I do not consider I can conclude at this stage that Mr Shaik has no prospects of defending the jurisdictional objection. I consider the merits to be a neutral factor.  

Fairness as between Mr Shaik and other persons in a similar position

1. As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[8] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[9]

1. Neither party made any persuasive submissions directed at this factor. I consider this factor is neutral.

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 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.[10] 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.[11] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[12]

1. Having regard to all of the matters at s.394(3) of the FW Act, I am very marginally satisfied that there are exceptional circumstances.

1. I consider the extremely short delay of 18 seconds in the lodgment of Mr Shaik’s application and the unclear evidence regarding the precise lodgment time constitutes an exceptional circumstance that justifies the granting of an extension of time. I have also found that the steps Mr Shaik took on 9 May 2024 to contact the FWO and the Commission weighs marginally in favour of a finding of exceptional circumstances and the granting of an extension of time. The remaining factors are neutral.

Conclusion

1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

1. Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[13] I am satisfied that it is appropriate to extend the period for the application to be made to 10 May 2024.

1. The application will proceed to be dealt with in accordance with the Commission’s normal processes.

COMMISSIONER

Appearances

Mr Shaik representing himself.

Mr Chatterjee and Ms Sinha for Tata. 

Determinative conference:

20 June 2024.

Via video.

[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] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].

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

[8] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].

[9] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].

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

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

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

[13] Fair Work Act 2009 (Cth) s 577.

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