Mr Sumantra Chhabra v Crestkey Pty Ltd

[2024] FWC 2943

[2024] FWC 2943

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Sumantra Chhabra
v

Crestkey Pty Ltd

(C2024/6074)

DEPUTY PRESIDENT CROSS SYDNEY, 24 OCTOBER 2024

Application to deal with contraventions involving dismissal

1. This decision arises from an Application to the Fair Work Commission (the Commission) by Mr Sumantra Chhabra (the Applicant) for an extension of time for the lodgement of an application for a general protections remedy (the Application), pursuant to s.365 of the Fair Work Act 2009 (the Act).

1. The Applicant was notified of his dismissal from employment with Crestkey Pty Ltd (the Respondent) on 28 July 2024. The Application was lodged on 23 August 2024 and was four days out of time.

1. The Act allows the Commission to extend the period within which a general protections 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]

1. The requirement that there be exceptional circumstances before time can be extended under s.366(2) 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, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

1. Section 366(2) 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.

1. 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

1. 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 of the circumstances must be considered.[3]

1. The Applicant acknowledged that the Application was filed outside the 21-day limit and his justification in his Form F2 was as follows:

There are many different reasons for my delay which I will explain. Upon being terminated in an unjust and unfair manner, this caused me to have a mental breakdown and go into shock. I visited the Dr the very next day and was put on melatonin and Diazepham pills by my dr in order to rectify and preserve my health. The harassment and constant patronising caused by my boss caused my health to take a turn for the worst. Along with this, being new to the country I did not know my workplace rights and called every legal centre I could for help such the NSW Government, Redfern legal centre, Inner City legal centre and the Fair Work Ombudsman. I was advised by my doctor and legal advisor Kate from Inner City Legal Centre to take a break and focus on my health before submitting my application to FWC, as this would cause me to forget key information, or further aggravate my health issues. To complicate matters more, due to the battering my body has taken from stress I caught long covid and have been coughing blood and vomiting many days and am slowly recuperating hence me taking out the time to lodge my complaint.

1. The Applicant provided two medical certificates noting that he was unfit for work from 29 July 2024 to 12 August 2024. In relation to the process affecting his mental health, the Applicant filed a photo of medication used for anxiety disorders. The Applicant also noted that he had a positive COVID test on 1 August 2024.

1. I do not accept that the Applicant’s medical conditions could possibly justify a delay in filing the Application. I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, where at para [15], the majority (Watson VP and Smith DP) observed:

‘[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.’   

[Emphasis added]

1. Indeed, the Applicant’s evidence was that he was able to communicate with the NSW Government, Redfern legal centre, Inner City legal centre, the Fair Work Ombudsman, and the Commission during the 21 days period following dismissal. The Applicant also accepted that he was aware of the 21-day limitation period.

1. It is clear that the Applicant simply chose not to comply with the 21-day limitation period. That is not an exceptional circumstance. The absence of an acceptable explanation weighs against the Applicant.

Action taken to dispute the dismissal

1. This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application.

1. In all the circumstances, I do not find that the Applicant took any action with the Respondent to dispute the dismissal after it occurred. I consider this factor, however, is a neutral consideration.

Prejudice to the employer

1. A delay of four days would not be likely prejudice the employer. In the circumstances, I consider this consideration to be neutral.

Merits of application

1. This is a general protections claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”

1. In the matter of Kornicki v Telstra-Network Technology Group[4] a predecessor of the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[5]

1. I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.

Fairness as between the Applicant and other persons in a similar position

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

1. As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight, being the absence of any acceptable reason for delay, weighs in favour of a conclusion there are not exceptional circumstances. None of the factors weigh against such a conclusion.

1. Having regard to the matters I am required to take into account under s.366(2), and all of 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.

1. 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(2). Accordingly, the Application must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr D Wong, Solicitor on behalf of the Applicant.

Mr T Doig, on behalf of the Respondent.

Hearing details:

2PM.
23 October 2024.
Microsoft Teams.

[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]

[4] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[5] Ibid.

Printed by authority of the Commonwealth Government Printer

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