Muthukumar Ramasubbu v State of Victoria (Department of Families, Fairness and Housing)

[2021] FWC 3591

[2021] FWC 3591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Muthukumar Ramasubbu
v
State of Victoria (Department of Families, Fairness and Housing)

(U2021/4786)

DEPUTY PRESIDENT MANSINI MELBOURNE, 22 JULY 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mr Muthukumar Ramasubbu (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] As the application was filed outside the statutory timeframe, this decision considers whether the Commission is satisfied there are “exceptional circumstances” as to allow a further period for the application to be made, pursuant to s.394(3) of the Act.

Context

[3] The Applicant was employed as a Disability Support Worker by the State of Victoria (then Department of Health and Human Services, now the Department of Families, Fairness and Housing) (Respondent), from late 2010 until his employment came to an end in mid 2014. 1

[4] The circumstances of the Applicant’s employment coming to an end involved an allegation that he had physically assaulted a disability client, in November 2013. The Applicant was stood down from his employment pending the outcome of the Respondent’s investigation. A hearing officer was appointed pursuant to the HACSU Department of Human Services Disability Services Enterprise Agreement 2012-2016 and the Department’s Managing Performance and Conduct in Disability Services Policy and a hearing took place on 22 May 2014. The hearing officer determined the disciplinary outcome of termination on the grounds of “substantiated serious misconduct”. 2 The Applicant contends that the outcome was based on “false claims” and that he was acting in the interests of the client’s safety.3

[5] The Applicant’s evidence was that he was asked to resign in June 2014 but his employment did not come to an end until he received a termination letter on 14 July 2014. 4 The Respondent contended that the employment came to an end when the Applicant resigned his employment “on or around” 5 June 2014, prior to the hearing officer’s determination dated 4 July 2014.5

[6] The matter subject of the Respondent’s investigation was separately reported to the Victoria Police and charges were made but ultimately not struck out by order of a Court until April 2015. 6

[7] The Applicant described himself as a first generation migrant and gave evidence to the Commission of the impact that the loss of his employment had on him in the years since, including (among other conditions) that he was diagnosed in 2017 with major depression which he has suffered for some years, had slowly developed alcoholism for which he was hospitalised in November 2018 and August 2020 and had attempted to take his own life in 2019. He also suffered the loss of his father and mother-in-law in the years since his employment ended. 7

Was the claim filed outside the statutory timeframe?

[8] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3).

[9] In this case, there is no dispute that the application was filed outside the 21-day statutory timeframe.

[10] However the date that the employment came to an end is not agreed. The Applicant’s evidence was that his employment came to an end on 14 July 2014, whereas the Respondent said it was “on or around” 5 June 2014. It would appear from the Applicant’s documents that the allegation of serious misconduct was substantiated as of 22 May 2014. The Respondent provided a copy of the hearing officer’s report dated 4 July 2014 which determined that the disciplinary outcome of the allegation against the Applicant “is termination” and also noted that the hearing officer had been advised that the Applicant had voluntarily resigned his employment on 5 June 2014. There is no other evidence or record before the Commission which sheds light on the effective date that the employment came to an end.

[11] For present purposes, I accept the date the Applicant says his employment came to an end.

[12] This unfair dismissal application was lodged on 2 June 2021.

[13] The period of 21 days ended at midnight on 4 August 2014. The application was therefore filed 2,494 days outside the 21 day period.

[14] The Applicant asked the Commission to grant a further period for the application to be made under s.394(3). A program for the filing of materials in relation to this jurisdictional issue was set and the matter proceeded to hearing, by telephone, on 23 June 2021.

[15] In support of his request for an extension of the time for filing the claim, the Applicant asked the Commission to receive the amended application (with attachment) and a witness statement (with annexures). The Applicant also gave oral evidence at the hearing and was afforded an opportunity to file additional medical records as evidence, which he did, after the completion of the hearing. The Respondent sought to address the Commission about the lateness of the application by way of written and oral submissions and did not file evidence in support.

The ‘exceptional circumstances’ test

[16] The Act allows the Commission to extend the period within which an unfair dismissal 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. 8 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.9

[17] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

[18] Section 394(3) 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) whether the person first became aware of the dismissal after it had taken effect;

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

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

(e) the merits of the application; and

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

[19] 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

[20] 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. 10

[21] The Applicant’s written materials appear to contend delay on account of his problems and suffering (detailed at paragraph 7 of this decision) and perhaps also having mistakenly first awaited the conclusion of police case in April 2015 before seeking legal representation (to no avail and at which time he had no money, no work and 3 young children). 11 He also said he was a union member and no one educated him to apply for unfair dismissal.12

[22] But, at the hearing, the Applicant was clear in response to questions of the Commission: it was not that the medical conditions and other problems prevented him from filing within the statutory timeframe, but rather that the development of these medical conditions and other problems (which he blames on the loss of his employment) caused him to decide to fight for justice. Specially, the Applicant gave evidence that he did not initially want to fight anything and instead focussed on looking for work following the loss of his employment with the Respondent. He did find other work in the intervening period which ended (the Applicant has concerns that it ended due to a breach of his privacy by the Respondent). The Applicant gave evidence to the Commission that he only decided to fight this case once he knew he was no longer a use to his children; he then started reading and went through all the documents from the Respondent, and found many false claims, and that is when he started browsing about the Fair Work Commission.

[23] I accept that, in the period since his employment came to an end, the Applicant has experienced a range of difficulties and great suffering. I also accept his evidence that initially he did not wish to challenge the dismissal and sought to move on with his life and that it is only in recent times, with the benefit of hindsight as to his experience, that he decided to file this claim. I have sympathy for the Applicant, but it is not unusual that a person might experience anxiety, stress or related conditions following the loss of their employment. That the Applicant did not decide to fight for justice, and bring this claim, until almost 7 years after the expiry of the statutory timeframe for filing, is not in my view an acceptable or reasonable excuse for such significant delay.

[24] The Applicant has filed various medical records that support his claims of problems and suffering and I accept this to be true. Even if it were said to be the reason for the delay (which the Applicant does not contend), the evidence at its highest only supports a finding of the diagnosis of conditions and therefore the potential for medical incapacity to attend to the filing of this application for periods of time since 2017. There is specific evidence of periods of hospitalisation in November 2018, August 2019 and August 2020. Whilst I accept that the Applicant’s conditions may have also impacted other relevant periods of time, there is an absence of evidence as to explain significant parts of the delay.

[25] I accept that the separate police process did not conclude until April 2015 and that this may have consumed the Applicant’s focus until then. Even if the Applicant were to be understood as contending that he mistakenly awaited the outcome of the police case in April 2015 before considering whether to file this claim, ignorance does not justify such a significant delay. Indeed, once the Applicant decided to pursue justice he was able to navigate the publicly available information and file this claim with the Fair Work Commission.

[26] The Applicant’s evidence does not support a finding that any part of the delay can be reasonably explained by any error on the part of a union of which he was a member.

[27] For the above reasons, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable or reasonable explanation for the delay in this case weighs strongly against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[28] The Applicant’s evidence was that he was aware of his dismissal before the date when I have found it took effect – that is, he first became aware in June 2014, when he claimed that he was asked to resign. 13 In any event, having determined that the Applicant’s employment came to an end effective 14 July 2014, as he contended, I understand that there is no dispute that the Applicant was aware that his employment had ended effective 14 July 2014.

[29] This factor weighs against the Applicant because he had the benefit of the full 21 day period to lodge an application.

Action taken to dispute the dismissal

[30] The Applicant gave evidence that he attended an inquiry and told the Respondent clearly what his intentions were in handling the incident with the client subject of the misconduct allegation. 14 The Respondent’s documents (which pre-date 14 July 2014) record that the Applicant’s account was taken and it was plainly to deny or dispute the allegations.15 In the separate Victoria Police matter, the Applicant is recorded on the court orders as having plead not guilty.16

[31] Although it can be inferred that the Respondent was on notice that the Applicant might dispute any termination decision, before it concluded the investigation and made its decision to terminate his employment, this is not ‘action to dispute the dismissal’ because there had not yet been a dismissal. Responses given to the Court in relation to the Victoria Police matter is also not ‘action to dispute the dismissal’ with the decision-maker, the Respondent. Further, the Applicant acknowledged that it was not his intention to bring this claim and that he made the decision to pursue justice only after the various problems and suffering he had experienced in the years since his employment came to an end.

[32] Accordingly, I do not considerthese steps to constitute ‘action to dispute the dismissal’. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[33] There is obvious prejudice that would accrue to the Respondent if an extension of time were to be granted. In the significant period of time that has passed since the Applicant’s employment has come to an end, the relevant evidence has aged, recollections may have faded and relevant witnesses may have left the employ of the Respondent.

[34] That said, the Respondent did not file evidence of any particular prejudice and, accordingly, I attribute little weight to this factor in the consideration of whether there are exceptional circumstances.

Merits of the application

[35] The Act requires me to take into account the merits of the application in considering whether to extend time.

[36] The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and the evidence and submissions given orally at the hearing and I do not repeat them here. Having examined these materials and considered the evidence and submissions, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

[37] It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position – nothing raised

[38] 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

[39] Having regard to the matters I am required to take into account under s.394(3), 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. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.

[40] I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Hearing details:

2021.
Melbourne (By Telephone).
23 June.

Printed by authority of the Commonwealth Government Printer

<PR730944>

 1   Applicant’s Witness Statement filed 15 June 2021 at page 1; Respondent’s submissions filed 21 June 2021 at paragraph 4.

 2   Respondent’s Submissions filed 21 June 2021 at Attachment 2.

 3   Applicant’s Witness Statement filed 15 June 2021 at page 2.

 4   Applicant’s Witness Statement filed 15 June 2021 at pages 1 and 4.

 5   Respondent’s Submissions filed 21 June 2021 at paragraph 8.

 6   Attachments to Applicant’s Witness Statement filed 15 June 2021.

 7   Applicant’s Witness Statement filed 15 June 2021 at page 1 and various attachments in support.

 8   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 9   Ibid.

 10   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 11   Amended Application filed 3 June 2021 at 1.5; Applicant’s Witness Statement filed 15 June 2021 at pages 1 and 2.

 12   Applicant’s Witness Statement filed 15 June 2021 at page 1.

 13   Applicant’s Witness Statement filed 15 June 2021 at page 2.

 14   Applicant’s Witness Statement filed 15 June 2021 at page 2.

 15   Respondent’s Submissions filed 21 June 2021 at Attachments 1 and 2.

 16   Attachments to Applicant’s Witness Statement filed 15 June 2021.