Mr Nuresh Napaul v Australian Leisure and Hospitality Group

[2019] FWC 4984

[2019] FWC 4984

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Nuresh Napaul
v
Australian Leisure and Hospitality Group

(U2019/5225)

COMMISSIONER CIRKOVIC MELBOURNE, 17 JULY 2019

Application for an unfair dismissal remedy.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 12 July 2019.

[2] Mr Nuresh Napaul (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment with Australian Leisure and Hospitality Group (the Respondent) was unfair.

[3] Applications for unfair dismissal remedies must be filed within 21 days of the date of dismissal. 1 It is uncontested on the evidence that the Applicant was dismissed on 15 April 2019 and that he became aware of his dismissal on that date. He filed his application on 8 May 2019, two days out of time.

[4] Under s.394 (3) of the Act the Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The issue of extension of time was heard before me on the afternoon of 12 July 2019. Permission to be represented was granted to the Respondent under s.596 of the Act. The Applicant relied upon his application in addition to two documents: his employment separation certificate dated 24 April 2019 and a series of emails dated 6 May 2019. The Respondent relied upon its form F3 filed on 11 June 2019 and material filed on 29 June 2019, including a witness statement of Ms Jenny Wregg. The Applicant gave evidence and Ms Jenny Wregg gave evidence on behalf of the Respondent.

[6] Section 394(3) of the Act sets out the factors which the Commission is to take into account in determining whether there are exceptional circumstances warranting the extension of time to file an application under s.394. These factors are:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person 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 the person and other persons in a similar position.

[7] I now address each of these factors in turn.

(a) the reason for the delay;

[8] The Act does not specify what reason for delay might weigh in favour of granting an extension however decisions of the Commission have referred to an acceptable or a reasonable explanation. 2 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd aFull Bench of the Commission noted that the absence of an 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 of the circumstances must be considered.3 The period of the delay is the period commencing immediately after the time for lodging an application has expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation of the delay.

[9] It is not in contest that the Applicant was aware of the 21 day deadline. The Applicant submitted that the reason for the delay was that he was waiting for an employment separation certificate from the Respondent. He gave evidence that he received that employment separation certificate in about late April or early May 2019.

[10] The Respondent submits that the Applicant could have filed after 15 April 2019, when he became aware of his dismissal. The Respondent submits that the Applicant’s explanation as to the delay is unremarkable.

[11] I appreciate that the Applicant chose to await receipt of his employment separation certificate before filing his application; however, in the circumstances of this case, where, on his own evidence, he was clearly aware of the strict 21 day limit, I do not consider this to be an acceptable or reasonable explanation for the delay.

[12] The fact that the application was lodged only two days late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional.

[13] The absence of an acceptable or reasonable explanation for the delay in lodging the application weighs against the Applicant’s application for an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[14] The Applicant was notified of his dismissal on 15 April 2019. The Applicant accordingly had the full 21 days to lodge the application. This is not a case in which the Applicant became aware of the dismissal after it came into effect and therefore did not have the benefit of the full 21 days for lodging an unfair dismissal claim. Consequently in this case this consideration is neutral.

(c) any action taken by the person to dispute the dismissal;

[15] The Applicant points to his attendance at the Federal Court of Australia subsequent to his termination to inquire as to his legal rights. I believe this, and accept that the Applicant took steps to dispute his dismissal, apart from filing his application. This consideration weighs in favour of the granting of an extension of time.

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

[16] The application was filed 2 days out of time. The Applicant submitted that there would be no prejudice to the Respondent. Nevertheless, the mere absence of prejudice is not itself a factor that would warrant or tell in favour of the grant of an extension of time. I consider this to be a neutral factor in the present case. However, if the absence of prejudice should properly be treated as telling in favour of an extension of time, I would attribute it little weight in the consideration of whether there are exceptional circumstances in the present case.

(e) merits of the application

[17] Both parties have filed material in relation to the substantive aspect of this matter. The s.394 application is disputed. In applications of this kind, being interlocutory in nature, the Commission “should not embark on a detailed consideration of the substantive case”. I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties which have not been tested. I find this criterion neutral in this matter.

(f) fairness as between the person and other persons in a similar position

[18] Applications to extend time generally turn on their own facts. Neither party made any submission as to this factor. I consider this to be a neutral consideration in this matter.

Conclusion

[19] The time limit that applies to the exercise of a person’s right to bring an application under s.394 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[20] Having regard to all of the matters of which I am required to consider under s.394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period of time for the making of the application by the Applicant. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[21] I decline to grant an extension of time under s.394(3). Accordingly, the Applicant’s application under s.394 of the Act is dismissed.

COMMISSIONER

Appearances:

Mr N Napaul (self-represented)

Ms J Zhou of Counsel for the Respondent

Hearing details:

12 July 2019

Final written submissions:

Applicant’s Form F2 and material provided at hearing

Respondent’s Submissions filed 29 June 2019.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth) s 394 (2).

 2   See respectively Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9]; Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 [16].

 3   [2018] FWCFB 901.