Mr Ragu Mahesan v Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust T/A Henry Schein Halas

[2014] FWC 1895

[2014] FWC 1895

FAIR WORK COMMISSION

DECISION

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

Mr Ragu Mahesan
v
Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust T/A Henry Schein Halas
(U2013/17284)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 24 MARCH 2014

Jurisdictional objection - extension of time.

[1] This is an application for an extension of time for lodgement of an application pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relevant legislative framework for the exercise of the Fair Work Commission (the FWC) in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if 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.”

[3] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 1Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”2

[4] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 3 In Maan v Minister for Immigration and Citizenship4 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

“We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 5

(my emphasis)

[5] I have adopted that approach.

[6] In relation to section 394(3)(a) I am satisfied and find that Mr Mahesan has a very satisfactory explanation for the delay in lodgement of this application. During this period his new born son was being treated for a serious and dangerous heart condition, his wife suffered health problems following the birth of his son and required further surgery. These things are thankfully not circumstances ordinarily encountered.

[7] Mr Mahesan alleges a constructive dismissal and therefore sub sections 394 (3) (b), (c) and (f) are not relevant.

[8] There would be a prejudice to the respondent if an extension of time were to be granted. The respondent has now hired a replacement for Mr Mahesan. This is a relevant criteria for consideration pursuant to sub section 394(3)(d).

[9] The merits of the substantive application are required to be considered pursuant to section 394 (3) (e). It is well accepted in this jurisdiction that the Commission does not have to be satisfied that the applicant will or will not succeed in his application. I do have to be satisfied that the application is not without merit.

[10] Unfortunately, in this case, I cannot be so satisfied. On Mr Mahesan’s own version of the facts I am satisfied that he could not be successful in his application pursuant to section 394. Mr Mahesan resigned in writing after considering the actions of the respondent in managing his performance. He worked throughout his notice fulfilling his obligations as an employee in an exemplary fashion. There is no aspect of this cessation of employment that could be interpreted as a constructive dismissal.

[11] Each of the criteria in the sub sections of section 394 (3) have to be considered in deciding an application for an extension of time for lodgement. It is a rare case where a member can be satisfied that an application is without merit to the requisite standard. Unfortunately for Mr Mahesan this is one of those cases.

[12] The application for an extension of time for lodgement of this application is dismissed.

SENIOR DEPUTY PRESIDENT

 1 [2003] FCAFC 256.

 2   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 4 [2009] FCAFC 150

 5   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

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