Ms. Gurvinder Shergill v Dairy Technical Services Ltd

[2014] FWC 495

[2014] FWC 495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ms. Gurvinder Shergill
v
Dairy Technical Services Ltd
(C2013/7313)

COMMISSIONER GREGORY MELBOURNE, 25 MARCH 2014

Application to deal with contraventions involving dismissal.

Introduction

[1] Ms Gurvinder Shergill was dismissed from her employment with Dairy Technical Services Ltd (DTS) on 24 October 2013. She had been employed since July as an analyst on what DTS submits was a 6 month fixed term contract in response to “a busy period at DTS”. Ms Shergill made a written complaint to the HR department at DTS four days later asking for the circumstances surrounding her dismissal to be investigated and reviewed. The outcome of that investigation was made known to her on 13 November. She then proceeded to lodge an application under s.365 of the Fair Work Act 2009. However, it was received by the Commission on 20 November 2013, six days after the expiry of the 21 day period set down in s.366 of the Act.

[2] Leave was granted pursuant to s.596(2)(a) of the Act to Ms Libby Pallot of Russell Kennedy to appear on behalf of DTS at the conference listed on 19 December 2013.

The Issue to be Decided

[3] Section 366 of the Act enables a further period for an application to be made if the Commission is satisfied there are “exceptional circumstances” taking into account each of the various matters specified in the sub section. Do those “exceptional circumstances” exist in this case to justify Ms Shergill being granted an extended period in which to lodge her application?

The Evidence and Submissions

[4] Ms Shergill was dismissed on 24 October 2013. The letter of termination provided to her states in part:

“I refer to the meeting on 30th September 2013 between yourself, Bhupender Deswal and Yogita Sharpe, which was held to discuss matters relating to your performance.

As set out in the letter dated 22nd July 2013, your employment was subject to a probationary period. During the entire probationary period your suitability and performance in the role of Analyst Level III was assessed.

Further to the meeting on 30th September 2013, I write to confirm the termination of your employment effective close of business 24th October, within your probationary period. The decision to terminate your employment has been made on the basis that your overall performance and suitability for the role was not satisfactory.” 1

[5] However, Ms Shergill submits the real reason for her termination is DTS decided it no longer wished to employ her after it became aware she was pregnant. She says any performance issues to do with her employment were only raised after this time. In support of her application for an extension of time she states that on 28 October she made a written request to the HR department at DTS to carry out an investigation into the circumstances of her dismissal. That letter commenced by indicating:

“I want to bring to your notice that I believe that my termination of employment is unfair and is a result of personal grudge and discrimination rather than performance issues. I want HR management to investigate the whole matter and reconsider the decision. I want to explain my side, please take following points into account while investigating.” 2

[6] She said she was optimistic at the time of forwarding this request that the matter could be resolved directly between her and DTS.

[7] Ms Shergill subsequently made various enquiries about when a response could be expected. She was then contacted and asked to attend at DTS on 13 November to discuss the outcome of the investigation. At that meeting she was given a letter dated 31 October, signed by Ms Natasha Reardon the Human Resources Manager at DTS, which indicated in part:

“After a full investigation and due consideration of the facts presented to us during the investigation process, my conclusions are as follows:

There was no evidence provided to DTS throughout the investigation to suggest that you were negatively discriminated against on the basis of your pregnancy during your employment with DTS or at the time of your termination.

There was also no evidence provided to DTS to suggest that you were openly humiliated or harassed by any member of the DTS staff during your employment with DTS.

It is therefore my conclusion that the decision to terminate your employment during the probation period was based on performance alone and was not unfair, harsh or unreasonable.” 3

[8] Ms Shergill said she was confused by this response as she had been confident the “HR team will fully investigate the matter and I will get justice...”. 4

[9] She said she was not aware of the 21 day time period in which to lodge an application with the Fair Work Commission, and could not afford the cost of legal representation. Instead, she submits:

“I just searched online and found about FWC. This whole process took a bit of time.” 5

[10] DTS submits there are no exceptional circumstances to warrant further time being granted to lodge the application. Its submissions confirm Ms Shergill forwarded a letter to the HR team at DTS four days after her termination requesting an investigation into the circumstances surrounding that decision. It submits the HR manager, Ms Natasha Reardon, took “prompt action” 6 in response, and during the next two days arranged interviews with seven employees as part of the investigation process. Those interviews were carried out on 29 and 30 October and an investigation summary and a letter to Ms Shergill were subsequently prepared and finalised.

[11] Ms Rae Dyer, a Senior HR Advisor at DTS who carried out the investigation, was then absent for a week on annual leave. Two days after she returned she arranged a meeting with Ms Shergill and the Business Unit Leader from the area in which she had worked. Ms Dyer provided her with the outcome of the investigation at this meeting. DTS submits this all occurred within the 21 day period following Ms. Shergill’s termination. However, she then took a further seven days to lodge her application in circumstances where it submits there was nothing obviously preventing her from making application within the relevant period.

[12] DTS also points to various authorities in support of its submissions that, firstly, ignorance of the time limits for making an application do not constitute the circumstances that justify an extension of time; secondly, being new to Australia is not considered an exceptional circumstance and, finally, being unable to afford legal representation is not an unusual, special or uncommon circumstance.

[13] DTS also submits Ms Shergill’s application has no merit. In its submission she was terminated during her probationary period for ongoing performance issues related to the quality of her work. It submits it has “well-established” pregnancy and parental leave policies in place, evidenced by the fact Ms Shergill was moved to an area considered more appropriate once DTS became aware she was pregnant. In any case it submits it had no reason to dismiss her because of her pregnancy as her fixed term contract would conclude well before she was due to give birth.

Consideration

[14] In determining an application for an extension of time s.366(2) of the Act requires there be “exceptional circumstances” to warrant an exercise of the discretion taking into account each of the matters set out in sub sections (a) to (e). The decision in Nulty v. Blue Star Group Pty Ltd 7 is also often cited in support of what is required to find “exceptional circumstances” exist to justify an extension of time being granted. The Full Bench stated at paragraph [13] of that decision:

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 8

[15] I am also mindful of the decision in Prasad v. Alcatel-Lucent 9 handed down in the context of an unfair dismissal claim, but also dealing with the requisite timeframe for lodging applications, which determined:

“It should be clear from the case law I have cited that the making of a s.394 application out of time should not be regarded as presenting the applicant with some mere technical problem. Rather s.394(2) is a substantive legislative provision which represent the legislature's judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the period may often result in a good cause of action being defeated.” 10

[16] I now turn to deal with the evidence and submissions of the parties by reference to the various considerations set out in s.366(2), and the relevant authorities.

(a) The reason for the delay

[17] Ms Shergill appeared genuinely surprised and disappointed by her dismissal and believes it was not justified. Four days after it occurred she sent a detailed two-page letter to the HR Department at DTS requesting the circumstances be fully investigated. DTS agreed to this request, even though it was under no obligation to do so. It appears to have acted promptly and thoroughly with seven employees interviewed. However, it is clear some delay then occurred in communicating the outcome to Ms Shergill because the person who carried out the investigation was absent on annual leave for one week before a meeting was arranged with Ms Shergill to tell her about the outcome of the investigation. That meeting took place 20 days after she was dismissed.

[18] Ms Shergill indicated she was disappointed by the outcome of the investigation and, at the same time, confused and uncertain about how to take the matter further. She submits this confusion and delay occurred because:

“I wasn’t aware of FWC or 21 days condition associated with lodging the application, as I never came across such situation. I am new to Australia and have family to look after. I am financially not capable of hiring a solicitor, so I never thought of this option, otherwise he or she would have advised me. I just searched online and found about FWC. This whole process took a bit of time.” 11

[19] As a result her application was not lodged until 7 days later, 6 days after the expiry of the 21 day period.

[20] DTS submits in response that none of these circumstances can be considered “exceptional” and makes reference to various authorities in support of those submissions.

[21] The Full Bench decision in Nulty, has already been referred to. At paragraph [14] of that decision the Full Bench continued to indicate:

“Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 12

[22] DTS also made reference to the decision of Commissioner Roe in Ms Susan Rose v. BMD Constructions Pty Ltd 13 when he stated in the context of an unfair dismissal application:

“[11] Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.” 14

[23] It also referred to the decision of Commissioner Bissett in Kelun Wang v. Daw Trading P/L t/a A Grade 15 when she stated:

“[28] I accept that the Applicant’s first language is not English. This does not, of itself, create an exceptional circumstance.” 16

[24] It finally referred to the full bench decision in Dr Bing Du v. University of Ballarat 17. At paragraph [31] the Full Bench stated:

“In respect of Dr Du’s reasons for the delay in making his unfair dismissal remedy application, we consider that it is not out of the ordinary course, unusual, special or uncommon for employees whose employment has ceased to not be aware of the law and to be unable to pay for advice or afford legal costs. Moreover, free advice is available from a number of sources, including the FWA website, about the grounds for an unfair dismissal remedy application and about making such an application to FWA by completing the appropriate form and paying the filing fee or obtaining a waiver of the filing fee.” 18

[25] These decisions suggest the separate grounds relied upon by Ms Shergill cannot be considered to be “exceptional circumstances” that warrant an extension of time being granted. Equally, I am not satisfied that when those circumstances are considered together the situation is any different because such circumstances in combination are often and routinely encountered by the Commission in these matters.

[26] Ms Shergill’s submissions also imply DTS somehow delayed the investigation to make it more difficult for her to lodge an application within the 21 day time period. I am not satisfied there is evidence to support this submission. DTS acted to carry out an investigation in circumstances where it was not obliged to do so. It is unfortunate that communication of the outcome to Ms Shergill was delayed for a short period of time due to the investigator taking a period of annual leave, however, I am not satisfied there was any deliberate intention to delay for the purpose of denying or preventing an application being lodged within the 21 day time period. In any case there was nothing to prevent Ms Shergill making her request for an internal investigation by her former employer and, at the same time, “covering all bases” by also making application to the Commission within the requisite time period.

(b) Any action taken by the person to dispute the dismissal

[27] Ms Shergill has clearly taken action to dispute the dismissal, both through the direct approach made to her former employer for it to carry out an investigation into the circumstances, and by means of her application to the Commission.

(c) Prejudice to the employer (including prejudice caused by the delay)

[28] The application is not made substantially “out of time,” however, DTS has had to devote time and resources to responding to the application and will have to do so if the matter proceeds any further. At the same time it has already carried out its own investigation in response to the request from Ms Shergill and this would presumably assist in developing any future response.

(d) The merits of the application

[29] The parties have provided different views about the reason for termination. DTS also submits it had no reason to dismiss Ms Shergill on the ground she claims because she was engaged on a fixed term contract which would have come to an end prior to the birth of her child. There is insufficient material before me to come to any concluded view about what are clearly contested issues. I also note that the relevance of the issue of “merit” when determining an application for an extension of time was considered by a Full Bench of the then Australian Industrial Relations Commission in Kyvelos v. Champion Socks Pty Limited 19. Without going to that decision in detail the Full Bench noted that detailed evidence about merit is rarely provided by parties to an “out of time” application. It continued to indicate that there are “sound reasons” why the Commission should not get involved in a detailed consideration of the substantive case in such matters. As indicated, I have not formed a concluded view about the respective merits of the matter and based on the decision the Full Bench I am satisfied it is not necessary to do so at this point. The respective merits of the application are accordingly a neutral consideration in terms of whether I should exercise the discretion available in s.366.

(e) Fairness as between the person and other persons in a like position

[30] This is of limited relevance in the present matter. There are no others in a similar situation at this time.

Conclusion

[31] Having had regard to the various considerations in s.366(2) that I must take account of I am not satisfied, in conclusion, that “exceptional circumstances” exist in this matter to warrant an exercise of the discretion to extend the time in which to make application. I have had particular regard to the reasons for the delay in coming to this decision. I don’t seek to restate those conclusions at this point. Ms Shergill had the ability to lodge her application within the 21 day period following her dismissal. She chose instead to take the matter up directly with her former employer. Nothing prevented her from making an application to the Commission at the same time in the event her approaches to DTS proved fruitless. There were no “exceptional circumstances” in the context of s.366(2) and the relevant authorities that prevented her from doing so. The application is dismissed.

COMMISSIONER

Final written submissions:

Applicant filed materials on 27 December 2013 and 2 January 2014.

Respondent filed materials on 16 January 2014.

 1   Letter from Natasha Reardon to Gurvinder Shergill dated 24 October 2013

 2   Letter from Gurvinder Shergill to HR team DTS dated 24 October 2013

 3   Letter from Natasha Reardon to Gurvinder Shergill dated 31 October 2013

 4   Submissions of the Applicant dated 23 December 2013 at para 2

 5   Ibid

 6   Submissions of the Respondent dated 16 January 2014 at para 9

 7   [2011] FWAFB 975

 8   Ibid at [13]

 9   [2010] FWA 7804

 10   Ibid at [13]

 11   Submissions of the Applicant dated 23 December 2013 at para 2

 12   [2011] FWAFB 975 at [14]

 13   [2011] FWA 673

 14   Ibid at [11]

 15   [2013] FWC 9270

 16   Ibid at [28]

 17   [2011] FWAFB 5225

 18   Ibid at [31]

 19   Print S8556

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