Muthusamypillai v Arvato Australia Pty Ltd
[2025] FedCFamC2G 223
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Muthusamypillai v Arvato Australia Pty Ltd [2025] FedCFamC2G 223
File number(s): SYG 1999 of 2024 Judgment of: JUDGE GIVEN Date of judgment: 20 February 2025 Catchwords: INDUSTRIAL LAW – Where applicant failed to commence proceedings within 14 days of days of certificate issued by Fair Work Commission – whether time should be extended – where basis for delay said to be on medical grounds – where dispute as to veracity and content of medical certificate – extension of time refused Legislation: Fair Work Act 2009 (Cth) ss 368, 370 Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Clarke v Service to Youth Council Inc [2013] FCA 1018
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Division: Fair Work Number of paragraphs: 46 Date of hearing: 20 December 2024 Place: Sydney Counsel for the Applicant: In person Solicitor for the Respondent: Mr J Arndt, Australian Business Lawyers And Advisors ORDERS
SYG 1999 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIYASHAN MUTHUSAMYPILLAI
Applicant
AND: ARVATO AUSTRALIA PTY LTD
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for extension of the time within which to institute a proceeding under s 370 of the Fair Work Act 2009 (Cth) is refused.
2.The proceedings are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN
On 7 August 2024, the applicant commenced these proceedings by an application (seeking an array of relief) under the Fair Work Act 2009 (Cth) (Act).
Prior to the commencement of the proceedings the applicant had made a general protections claim in the Fair Work Commission (Commission). On 23 July 2024, the Commission issued a certificate pursuant to s 368(3)(a) of the Act (Certificate).
Section 370 of the Act requires that any application to this Court be made within 14 days after the day the Certificate issued. The Court has power, pursuant to the same section, to extend that time upon application being made after those 14 days. It is not in dispute between the parties that, by reference to the date on which the Certificate issued, any application to this Court was required to have been made by 6 August 2024. It is not in dispute between the parties that the application, made on 7 August 2024 is 1 day out of time and that the applicant requires leave of the Court to proceed.
At a directions hearing on 7 November 2024, I made the following orders (November Orders):
1.The applicant must file and serve any Affidavit evidence and a written submission in relation to the question of whether the time in which to being the application should be extended by 4:00pm on 28 November 2024.
2.The respondent must file and serve any Affidavit evidence and a written submission in relation to the question of whether the time in which to bring the application should be extended by 4:00pm on 12 December 2024.
3.The proceedings are listed for a hearing on the preliminary question of the extension of time for the bringing of the application before Judge Given on 10:15am on 20 December 2024 at Court 13.1 level 13, 80 William Street, Woolloomooloo.
These reasons for judgment deal with the aforementioned preliminary application to extend time.
PRINCIPLES
The principles in respect of extending time in a case such as this are well-settled and also do not appear to be in dispute between the parties. As noted above, the Court has a discretion to extend the period in which to make an application,[1] to more than 14 days, pursuant to
s 370(a)(ii) of the Act. A notation to that section provides as follows:[1] See Clarke v Service to Youth Council Inc [2013] FCA 1018 at [5] per White J
Note 2
For the purposes of subparagraph (a)(ii), in Brodie – Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988 (Cth).
In Clarke v Service to Youth Council Inc [2013] FCA 1018 (Clarke), White J observed the following at [6] to [9], citing Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns) per Marshall J as follows:
In Brodie‐Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299–300, Marshall J summarised the principles applicable to the grant of an extension of time under s 170EA of the Industrial Relations Act 1988 (Cth) as follows:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
Brodie‐Hanns was decided before the High Court’s decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case, after reviewing the rationale for limitation periods, McHugh J (with whom Dawson J agreed) said (at 553):
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.
Similarly, Toohey and Gummow JJ said (at 547):
The discretion … is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.
Section 371(2) of the FWA is different from the legislative provision considered in Taylor. In addition, the 14 day period which it fixes is much shorter than the three year period which the plaintiff sought to extend in that case. Nevertheless, I consider that the observations in Taylor just quoted are pertinent in the present context. That is especially so given that one of the forms of relief sought by the present applicant is an order that her employment be reinstated. Generally, the longer the period from a termination, the more difficult reinstatement of employment will be. The relatively short limitation period of 14 days may be understood as a legislative recognition of that difficulty. The Parliament intends that applications under s 371 should be brought promptly so that the practical difficulties which an order for reinstatement can occasion may be minimised. In my opinion, this is an important consideration in relation to applications of the present kind.
Accordingly, I proceed on the basis that it is for the applicant to satisfy the court that an extension of time is appropriate. That onus is to be discharged in the context that the legislature has fixed a short limitation period.
As is clear from the above excerpt, the onus to satisfy the Court to extend time falls upon the applicant.
EVIDENCE
At hearing, each of the following Affidavits made by the applicant were read by him without objection, but on the condition of his cross-examination:
(a)made 9 August 2024[2] (applicant’s first Affidavit); and
(b)made 28 November 2024 (applicant’s second Affidavit).
[2] Despite having been deposed on 9 August 2024, the lodgement date for the applicant’s first Affidavit has been recorded by the Court’s Registry as being the same date and time as the originating applications were lodged, namely 11:58am on 7 August 2024. Clearly this is inaccurate. An Affidavit cannot be lodged 2 days before it is made. Presumably the lodgement date has been backdated by the Registry, a practice which should not occur (at least without leave of the Court specifically granted in full contemplation of the particular circumstances of the filing).
For the respondent were read the following Affidavits, again without objection but on the condition that Mr Godbole also be available for cross-examination:
(a)Affidavit of Mayuresh Godbole affirmed 12 December 2024 (Godbole Affidavit);
(b)Affidavit of Dr Sittampalam Ragavan affirmed 12 December 2024 (Doctor’s Affidavit); and
(c)a “Patient Health Summary” document pertaining to the applicant, produced under subpoena by Dr Ragavan which was tendered, without objection, during the hearing and marked Exhibit “1R”.
Dr Ragavan was not required by the applicant for cross-examination.
The applicant’s first Affidavit was filed after the originating application[3] and specifically directs itself to the applicant’s explanation for why he says that he failed to make his application within the time prescribed by the Act, and thereafter to the prejudice the applicant says he would suffer if that time were not extended. The explanation, as given by the applicant’s first Affidavit, can be summarised as follows:
(a)he had been unwell for the “past few days”[4] and it was the sickness which affected his capacity to make the application in time;[5]
(b)on 6 August 2024, the applicant attempted to lodge his application but due to “some technical issues”, could not do so;[6] and
(c)the applicant did succeed in lodging the Affidavit on 7 August 2024 following which the Registry notified him that the application was out of time and that he must make an application for extension. As a result, he then prepared his first Affidavit which attached a medical certificate (annexed medical certificate), and lodged it for filing.[7]
[3] See footnote 2 above
[4] Presumed to be a reference to the days immediately preceding 9 August 2024
[5] Applicant’s first Affidavit at [3]
[6] Applicant’s first Affidavit at [3]
[7] See footnote 2 above
The following can be observed about the annexed medical certificate:
(a)it is on letterhead of a particular medical centre which has a subheading with the details of Dr Ragavan;
(b)it is dated “08/08/2024”;
(c)it is signed and also bears a stamp underneath the signature again providing the contact details and provider number of Dr Ragavan; and
(d)provides the following explanation (spacing in original):[8]
[8] Having been cut and paste as an image, rather than re-typed
On 28 November 2024, in response to order 1 of the November orders, the applicant’s second Affidavit was filed and can be summarised as follows:
(a)the applicant’s second Affidavit is advanced to further explain the extent to which the applicant “was affected by the flu and migraine between the 5th and 8th of August, 2024”;[9]
(b)during “the aforementioned dates”[10] the applicant was:
(i)“severely impacted by flu-like symptoms including high fever, body aches, fatigue, and congestion as well as a debilitating migraine”;[11]
(ii)the symptoms left him “unable to carry out even basic daily tasks”;[12]
(iii)the pain and discomfort of his illness was so intense that he could not “focus or concentrate on any cognitive activities, including the use of a computer or engaging in professional work”;[13]
(iv)in particular the migraine caused him sensitivity to light and sound and prevented him from “performing any tasks that required mental focus or attention”;[14]
(v)the applicant was therefore unable “to work on my application during this time, as my condition prevented me from completing necessary tasks such as research, writing, and the careful review required for submission”;[15] and
(vi)the flu and migraine from which the applicant was suffering for the period 5 August 2024 to 8 August 2024 “severely disrupted” his normal routine and “significantly hindered my ability to meet the deadline”.[16]
[9] Applicant’s second Affidavit at [1]
[10] Presumed to be a reference to 5 to 8 August (inclusive)
[11] Applicant’s second Affidavit at [2]
[12] Applicant’s second Affidavit at [2]
[13] Applicant’s second Affidavit at [2]
[14] Applicant’s second Affidavit at [2]
[15] Applicant’s second Affidavit at [3]
[16] Applicant’s second Affidavit at [3]
The Godbole Affidavit goes to two main issues. Mr Godbole is the HR Manager of the respondent.[17] The first part of his Affidavit addresses matters related to the applicant’s employment, performance therein and termination. The balance of Mr Godbole’s Affidavit goes to providing evidence, sourced from Google maps as to the relative location of the applicant’s home and the medical centre where the applicant consulted with Dr Ragavan.
[17] Described in the Godbole Affidavit as “HR Business Partner” and clarified during cross-examination as, essentially, meaning HR Manager see Transcript dated 20 December 2024 (Transcript) at T15.43 to T15.47
Lastly, there is the Affidavit of Dr Ragavan and the document which forms Exhibit “1R” and apparently emanates from Dr Ragavan’s medical practice, its production having been compelled by Subpoena issued in these proceedings by the respondent.
By Dr Ragavan’s Affidavit, the doctor deposes to the following:
(a)his qualifications and that he has been practising as a doctor for more than 40 years;[18]
(b)that he saw the applicant on 8 August 2024, following which he issued a medical certificate (issued medical certificate);[19]
(c)the issued medical certificate is the only medical certificate that he issued to the applicant;[20] and
(d)in order to prepare his Affidavit, Dr Ragavan was provided with a copy of the annexed medical certificate;
(e)he did not issue the annexed medical certificate; and
(f)he believes the annexed medical certificate to be an altered version of the issued medical certificate.[21]
[18] Doctor’s Affidavit at [3] to [4]
[19] Doctor’s Affidavit at [5] to [6]
[20] Doctor’s Affidavit at [7]
[21] Doctor’s Affidavit at [8] to [9]
The following can be observed about the issued medical certificate:
(a)it appears to be identical to the annexed medical certificate in all ways, including signature placement, with one exception;
(b)the body of the issued medical certificate provides as follows (spacing in original):[22]
[22] Again, having been cut and paste as an image, rather than re-typed
In short, the issued medical certificate includes the caveat “As per history given by patient” (qualifying statement) and the annexed medical certificate omits the qualifying statement.
Next, the following can be discerned as being recorded about the applicant’s visit to Dr Ragavan on 8 August 2024 in Exhibit “1R”:
(a)under a heading “Subjective” the following is recorded:
Wants a medical certificate
Claims that he has been unwell with runny nose, body aches and fatigue for 4 days
He wanted medical certificate from 2nd and also said that it is for some legal matter but was not forthcoming with details
Even though he said that he was sick for 4 days as unable to even get up to se GP but wanted medical certificate from 2nd August
(b)under a heading “Examination” is included details of the applicant’s blood pressure, pulse, height, weight and BMI, but no record of his temperature;
(c)under a heading “Reason for visit”, is recorded:
Medical certificate
(d)under a heading actions the following is included:
…
Letter written re. Medical certificate.
Once he saw what I wrote on the medical certificate, he left saying he will go to some other doctor. Then he came back to get the certificate.
Letter printed.
Under cross-examination of the applicant the following emerged:
(a)he conceded that, contrary to the content of the applicant’s second Affidavit, he could in fact use a computer in the period in question (5 to 8 August 2024 (inclusive)), and did so in order to lodge his application to this Court electronically, on 7 August 2024;
(b)he conceded that, contrary to the content of the applicant’s second Affidavit, he was not so debilitated on 8 August 2024 such that he could not attend a medical centre;
(c)the applicant located the medical centre by first undertaking a Google search. He did not know if there were any medical centres closer to his house other than the one he chose to attend and at which he consulted with Dr Ragavan;
(d)the applicant travelled to the medical centre by train;
(e)contrary to the applicant’s second Affidavit, in which he deposed to having sensitivity to light and sound for a period including 8 August 2024, he travelled to the doctor on that date because he wanted some fresh air after having been sitting in a room for three to four days;
(f)the applicant accepted that he could have filed his application on 6 August 2024 and/or even in the week leading up to 5 August 2024, from which date he claimed to be ill;
(g)while accepting that there is a difference between the content of the annexed medical certificate and the issued medical certificate, the applicant denied having changed the issued medical certificate at all, including for the reason that he was unhappy with Dr Ragavan’s qualifying statement;
(h)the applicant claimed to have been “totally ok”[23] and “totally happy”[24] with the content of the issued medical certificate; and
(i)the applicant provided the issued medical certificate to the Court “straight away”[25] and did not file a different medical certificate from the one he was given by the doctor.[26]
CONSIDERATION
[23] Transcript T12.28 to T12.29
[24] Transcript T13.2
[25] Transcript T13.12 to T13.13
[26] Transcript T13.20
The medical explanation/evidence
As noted above, the applicant bears the onus of satisfying the Court that his application should be accepted beyond the time prescribed by the Act.
The applicant’s explanation for why it was that he failed to commence proceedings in time is that he was so unwell for a period spanning 5 to 8 August 2024 (inclusive) that it was not possible for him to comply with the temporal requirement of s 370 of the Act. I reject that explanation for the following reasons.
Firstly, the applicant accepts that he could have filed his application sooner than 5 August 2024 (being the date on which he subsequently claimed to have become debilitatingly ill) and at the very least before 6 August 2024. He did not do so but (for reasons which are not otherwise clear) left the making of his application to the very last day, 6 August 2024. That timing carried with it a potential risk that if (for any reason) the document could not or were not accepted by the Court’s Registry, the application would be out of time. By the evidence given by the applicant’s first Affidavit he claims (without any particular detail) that he did indeed encounter technical difficulties in the making of the application. Once the application was made out of time, and upon being contacted by the Court Registry, the applicant says he was made aware that he would then need to apply to extend time. It is open to infer, and I do, that the applicant was informed that in order to seek an extension of time he should provide Affidavit evidence, because that is the step he next took in order to proffer his explanation.
The applicant thereafter embarked upon an endeavour to obtain a medical certificate for that purpose, attending the medical centre to consult with Dr Ragavan on 8 August 2024.
The symptoms from which the applicant claims to have been suffering as detailed in the applicant’s second Affidavit[27] were:
(a)high fever;
(b)body aches,
(c)fatigue;
(d)congestion; and
(e)debilitating migraine.
[27] Applicant’s second Affidavit at [2]
With the exception of a fever (and potentially congestion[28]/runny nose[29]) the applicant’s symptoms as listed would likely have been latent, or unobservable, probably even to a doctor. It is potentially significant that despite the applicant claiming to have a fever to Dr Ragavan, that Exhibit “1R” makes no record of his temperature. It is perhaps unsurprising therefore, that Dr Ragavan added the qualifying statement to the issued medical certificate, because the applicant’s symptoms were subjective and latent, and therefore could only be said to have been self-reported.
[28] Applicant’s second Affidavit at [2]
[29] See Exhibit “1R”
Based on the evidence as a whole, it is open to conclude that the applicant sought to advance a debilitating medical reason for why it was that he could not file his application within time. The Court is prepared to accept that the applicant might have been feeling somewhat unwell on 6 August 2024. However, based on the following evidence, the applicant appears to have exaggerated those symptoms and/or the impact they had upon him because, contrary to his evidence about the debilitating nature of his symptoms:
(a)the applicant was able to finalise and attempt to file his application on 6 August 2024;
(b)in particular, despite an alleged sensitivity to light and sound between 5 to 8 August 2024 (inclusive), the applicant was able to:
(i)use a computer on 6 August 2024, being the date the application is dated and the date on which the applicant claims to have first attempted to lodge it electronically with the Court;
(ii)use a computer on 7 August 2024 being the date on which the applicant did lodge his application with the Court;
(iii)correspond/or speak with someone from the Court Registry on 7 August 2024 in order to receive the information that the application was now out of time and he needed to apply for an extension of time;
(iv)undertake a Google search of medical practices on or before 8 August 2024;
(v)choose and attend a medical practice (which was further than his home from many others and) which necessitated him travelling to and from by train and of which he said he was desirous, in order to get fresh air.[30]
[30] Godbole Affidavit at [11] to [14]
The aforementioned exaggeration reflects poorly on the applicant’s credibility. To the extent that the evidence of the applicant and Dr Ragavan (including the records which form Exhibit “1R”) diverge, I prefer the evidence of Dr Ragavan because:
(a)the doctor has no vested interest in the outcome of the proceedings and/or (as a precondition), the outcome of the interlocutory application seeking to extend time;
(b)the records which form Exhibit “1R” are independent (see [29(a)] above) and can be presumed to have been made contemporaneously to the visit on 8 August 2024 as opposed to the applicant’s Affidavit;
(c)the content of Exhibit “1R” contemporaneously records the applicant’s dissatisfaction with the qualifying statement in the issued medical certificate, which is consistent with its omission from the annexed medical certificate; and
(d)by reason of the aforementioned lack of credibility on the part of the applicant.
Despite his express denial while under cross-examination, it would certainly be open to infer that the applicant, or some other person, intentionally altered the issued medical certificate in order to produce the ultimately annexed medical certificate, and that this was done to give the impression that the applicant’s claimed illness was objectively observed by Dr Ragavan, and not only self-reported by the applicant. However, it is not necessary for the Court to reach a conclusion in respect of why, or by whom, the issued medical certificate was altered.
The Court accepts that the certificate, which was prepared contemporaneously by Dr Ragavan, and given to the applicant on 8 August 2024, is the issued medical certificate.
Even if I am wrong about that, then on the basis of the annexed medical certificate as advanced by the applicant, I am not persuaded it provides a sufficient explanation for the applicant’s failure to comply with the Act.
In NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (NAKX), Lindgren J considered the content of medical certificates proffered by applicants seeking to persuade the Court to exercise its discretion to adjourn a hearing. His Honour analysed the content of the certificates at [5] to [11] which (in that case) gave details of the respective ailments from which the applicants were said to be suffering. The Court found the certificates to be unpersuasive, particularly because they failed to specify that the medical condition/s would prevent the sufferer/s from participating effectively in a court hearing and in what way the medical condition/s would have any such effect. While acknowledging an adjournment and an extension of time involve the exercise of different discretions, I am satisfied that the reasoning in NAKX is apposite to whether to exercise the discretion to extend time in this case.
Even if the Court were to accept the annexed medical certificate is accurate on its face, and considering that document in isolation (by actively putting to one side the content of Exhibit “1R”), in the absence of further detail about the applicant’s medical conditions, I am not persuaded that any medical condition from which the applicant was suffering from 5 to 8 August 2024 (inclusive) was such as to prevent him from commencing the instant proceedings within time. In saying so it is relevant to observe also that, unlike NAKX, the annexed medical certificate made no mention of the applicant’s ability to commence and/or engage in Court proceedings but simply certified the applicant as being “unfit for work”.
The aforementioned position is no different in respect of the the issued medical certificate. However, the applicant does not rely on the issued medical certificate in support of his application. Rather, he expressly disavows knowledge of its content and/or provenance. As such, and given the findings at [30] and [31] above, there is no legitimate medical certificate advanced by the applicant for consideration.
Other possible explanations
It appears that what may truly have prevented the applicant from commencing the proceedings in time were technical difficulties which he claims where experienced by him on 6 August 2024 when he sought to file his application at the last opportunity to do so. However, there is no further evidence before the Court as to what these difficulties were or by what/whom they might have been caused. The applicant does actively rely upon the technical difficulties as being the reason why he failed to commence in time.
To the extent that, from the applicant’s first Affidavit, he might also be taken to be relying on his lack of education and/or familiarity with the legal system as being a reason for failing to commence in time, then I accept the submissions of the respondent that this is undermined to a degree by the fact that the applicant:
(a)was initially represented in the Commission proceedings;[31] and
(b)was able, after being informed by the respondent of his inability to pursue an unfair dismissal claim, to re-file the claim as a general protections claim within four days.[32]
[31] Godbole Affidavit at [9] to [10]
[32] Godbole Affidavit at [10]
Application of relevant principles
As observed at [6] to [8] above, while special circumstances are not necessary, the Court must be positively satisfied that the prescribed period in the Act should be extended.
Based on the foregoing analysis of the evidence above, there is no probative evidence before the Court that an acceptable explanation as to delay exists. This weighs against time being extended.
The commencement of these proceedings does suggest that the applicant contests the termination of his employment (albeit under the Act), however I accept the respondent’s contention that this is relatively common in applications of this kind, and consider this to weigh as a neutral factor in the exercise of the Court’s discretion.
In terms of prejudice, the respondent quite properly, accepts the delay in question is brief. However, it is the case that mere absence of prejudice to the respondent is an insufficient basis to exercise the discretion to extend time. The respondent contends that the nature of the evidence filed suggests there are sufficient grounds to refuse the application notwithstanding the short extension required. I agree.
In terms of the merits of the proposed substantive application there is, as would logically be expected at such an early stage of proceedings, limited material before the Court regarding the merits of the applicant’s claims. The respondent has filed some basic materials in respect of the basis for the applicant’s termination, within the Godbole Affidavit. The applicant cross-examination Mr Godbole on the content of the Affidavit and Mr Godbole remained unmoved from his evidence-in-chief.
I accept that the current evidence nonetheless advances materials which suggest that the respondent had lawful reasons for its decision to terminate the employment of the applicant. The respondent, again quite properly, accepts that this initial evidence cannot be determinative (in and of itself) of the question of the merits of the applicant’s case. However, the respondent also submitted at hearing that:[33]
This is a case which was a contest about the fairness of a dismissal. It was initially filed as an unfair dismissal. It’s not in – within jurisdiction and it has been refiled, repackaged, reheated as a general protections claim. We say it has no merit, and that should move the court to deny the application and to not exercise its discretion.
[33] Hearing transcript T25.37 to T25.40
While the fact that the applicant has sought to re-cast his claim cannot also be determinative of the question of merit, it is indicative of a shifting position in the applicant’s claim for relief not to a position of greater strength and merit, but to one of last resort. Overall, this also tends to weigh against time being extended.
CONCLUSION
Having regard to all the circumstances of this case, I am not persuaded by the applicant that the time, albeit brief, in which he can bring his application, should be extended.
Accordingly, that application is refused.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 20 February 2025
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