Mr Pritam Sah v Vulcan Steel Pty Ltd
[2023] FWC 1957
•9 AUGUST 2023
| [2023] FWC 1957 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Pritam Sah
v
Vulcan Steel Pty Ltd
(U2023/366)
| COMMISSIONER SCHNEIDER | PERTH, 9 AUGUST 2023 |
Application for an unfair dismissal remedy
Mr Pritam Sah (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) alleging that he had been unfairly dismissed from his employment with Vulcan Steel Pty Ltd (the Respondent).
From the information provided by the parties in the application and response forms, it appears the application was lodged outside of the 21-day time period allowed for such an application.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
A Hearing regarding the jurisdictional issue was held before the Commission.
Relevant law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] 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.[4]
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.[5] 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.[6]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[7]
This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.
Consideration
The Applicant, alongside his application, provided a copy of the termination letter he was issued with at the conclusion of his employment. This letter confirms that the Applicant was dismissed, with immediate effect, on 19 December 2022. This application was lodged on 12 January 2023. Neither of these facts are in dispute. The final day of the 21-day period was therefore 9 January 2023 and ended at midnight on that day.
Accordingly, the Commission must consider whether exceptional circumstances exist and, if there are exceptional circumstances, if discretion should be exercised to allow an extension of the 21-day period.
Reason for the delay
The delay is the period commencing immediately after the end of the 21-day period up to the date the application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[8]
The Applicant submits the following as reasons for the delay in filing:
· The Applicant was attempting to seek assistance from Circle Green Community Legal Centre (the CLC) prior to lodging his application. However, due to the Christmas and New Year holiday period, the Applicant was unable to obtain advice from Circle Green until 11 January 2023.
· The Applicant asserts he could not lodge his application until he received legal advice due to his unfamiliarity with the law and English being his second language.
· The Applicant also submitted that his mental health had suffered following the termination of his employment by the Respondent.
The Respondent submits that the Applicant’s delay in obtaining legal advice is not an exceptional circumstance for the purposes of the Act.
The Respondent submits that, during the disciplinary meeting held prior to the Applicant’s termination, the Applicant stated he would immediately be lodging this application.
The Respondent also submits that, by the Applicant’s own admission, he had spoken with “Fair Work” staff and should have been aware of the requirements.
The Applicant’s provided the below evidence in support of his delay:
· Copies of emails he had received from the CLC on 9 January 2023 to 10 January 2023.
· Copies of text messages confirming that he was seeking support in dealing with his mental health issues following the termination of his employment.
Having regard to the above, I find that the reasons for the delay put forth would understandably contribute to some delay. Particularly, the Applicant’s confidence in his English language abilities when preparing the application in combination with his mental health issues.
However, I do not accept that the closing of the CLC substantiates a reason for delay.
It is clear, from the information provided by that organization on their website and in the materials submitted by the Applicant, that they urge applicants not to wait for a response before lodging dismissal matters, noting the strict time frames.
The correspondence from the CLC submitted by the Applicant shows that he was informed, at least twice, of the requirement to lodge his application promptly. One email submitted by the Applicant sent from the CLC shortly after the passing of the 21-day period, on 10 January 2023, concludes with:
“Please note: if you have lost your job, time limits for some dismissal-based claims can be as short as 21 days. It remains your responsibility to comply with any time limits or court / commission deadlines.”
Passages similar to that above are also included on a further email on 10 January 2023, and on the CLC’s webpage where requests for advice are to be submitted.
The Applicant, during the period in question, seemingly made no other attempts to seek advice from the Commission or other legal services in the community.
It is understandable that his mental health issues impacted his ability to seek assistance. However, I am not satisfied that the reasons put forth reflect that the Applicant was making all reasonable attempts to lodge sooner.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
The Applicant disputes the reasons for his dismissal and the allegations put forth that lead to his termination.
In his application form, the Applicant contends that he had raised issues relating to a coworker with management and the Respondent had not taken any action.
Aside from the above, the Applicant did not take any actions to dispute their dismissal prior to making the application on 12 January 2023.
What is the prejudice to the employer (including prejudice caused by the delay)?
I am satisfied that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted.
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)”[9] and the same applies to section 394(3)(e) of the Act.
In the absence of a hearing of the evidence, 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.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
The Applicant, prior to his termination, contacted the Commission and made a pre-emptive effort to start obtaining legal advice in relation to his growing concerns about the workplace.
Following his termination, he turned to the CLC for legal assistance. The Applicant contends he did not receive a response until after the CLC had reopened, on 9 January 2023. The Applicant had a consultation with the CLC on 11 January 2023 and then filed this application at around 2:30PM on 12 January 2023.
The Applicant explained that he wanted to seek legal advice prior to filing his application and this was the primary reason for the delay in his filing the application. I also note the Applicant’s submissions regarding his mental health and personal circumstances.
On the materials before the Commission, it is clear that the Applicant had been notified in the days leading up to lodgment of the requirement to lodge on time and the fact that this was his responsibility alone. I am not satisfied that the delay caused by simply waiting to receive legal advice from the CLC is reasonable.
On the materials submitted, it is clear that the Applicant was informed, at the very least, twice in writing regarding this requirement. Considering the Applicant’s prior contact with the Commission and request to the CLC, I would find it unlikely that the time limit had only been highlighted these two times. Ignorance of the timeframe is not, in most cases, an excusable reason for delay.
Additionally, the Applicant should have been alive to the issue of his late lodgment by, at the latest, 10 January 2023. The Applicant then waited two more days before lodging his form, a day after he had his appointment with the CLC.
The Commission’s forms and website pages, such as those related to unfair dismissal applications, are designed so that parties do not require, in most cases, the support or advice of specialist third party legal support to make an application. Additionally, the Commission’s website provides information regarding translation services for non-English speakers relating to forms and other queries.
I accept that the dismissal of the Applicant was likely to have an adverse impact on his mental health. I accept that the Applicant did seek support following the termination of his employment, the Applicant’s evidence does not support the position that he was so incapacitated or unwell that it impacted his ability to file the application within the required period.
I am not satisfied that, in assessment of all the criteria, there are exceptional circumstances. There has been no evidence presented by the Applicant which suggested he was affected to the point that he struggled to file on time or perhaps unable to understand the basic notices regarding the time frame. Rather, the Applicant opted to wait until receiving an appointment for legal advice prior to lodging his application. Although this is understandable, it is not a requirement for lodgment and does not form a reasonable excuse for delay here. Similarly, the unavailability of certain services due to public holidays is not a reasonable excuse for delay in this matter.
There is no evidence to suggest there was representative error, misrepresentation, or similar which could weigh in favor of a finding of exceptional circumstances. Rather, the Applicant personally is at fault for the delay in filing.
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.
I am willing to entertain the possibility that I may have erred in my above conclusion and that the Applicant’s personal circumstances, specifically noting his language capabilities and mental health in conjunction with the delay in getting a CLC appointment, warrant a finding of exceptional circumstances.
However, noting that the Applicant was directly notified of the requirement to file on 10 January 2023, and further had his appointment with the CLC on 11 January 2023, I do not find it reasonable that the Applicant would delay to the point of filing in the afternoon of 12 January 2023. Accordingly, I would not exercise my discretion in extending the time period for application.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.[10]
COMMISSIONER
[1] [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] [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; [2015] FWCFB 1877.
[3] [2011] FWAFB 975, at [13].
[4] [2011] FWAFB 975, at [13].
[5] [2018] FWCFB 901, [39].
[6] [2018] FWCFB 901, [40].
[7] [2018] FWCFB 901, [17].
[8] [2015] FWCFB 287, [12].
[9] [2011] FWAFB 975, [36].
[10] [PR764962].
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