Nikhil Challa v Australia and New Zealand Banking Group Ltd T/A ANZ Bank

[2016] FWC 7397

[2016] FWC 7397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute

Nikhil Challa
v
Australia and New Zealand Banking Group Ltd T/A ANZ Bank
(C2016/5293)

COMMISSIONER JOHNS SYDNEY, 13 OCTOBER 2016

Application to deal with unlawful termination dispute - whether to extend time for lodging the application.

Introduction

[1] On Sunday, 4 September 2016 Nikhil Challa (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.773 of the Fair Work Act 2009 (Act). The Respondent to the application is the Australian and New Zealand Banking Group Ltd T/A ANZ Bank (Respondent).
[2] The factual background to the Application is as follows:

a) On 16 February 2016 the applicant commenced employment with the respondent.

b) The applicant was employed on a casual basis as a Client Service Consultant.

c) On 28 July 2016 the respondent terminated the applicant’s employment.

d) On 18 August 2016 the applicant lodged an application for an unfair dismissal remedy (UFD Application).

e) On Friday, 2 September 2016 the UFD Application was dismissed because the applicant had not completed the minimum employment period (i.e. he had worked for less than 6 months).

[3] Section 774(1) of the Act requires that an application made under s.773 be made “within 21 days after the employment was terminated”.
[4] Consequently, although the applicant’s UFD Application was filed within 21 days of the termination, the present application was not. It was filed 38 days after the termination. As such the application was lodged 17 days outside of the 21 day time limit for making the application.
[5] On 15 September 2016, the respondent filed an Employer’s Response in which it objected to the application because it was filed out of time.
[6] Because the application was lodged out of time it is necessary for the Commission to first determine whether to allow a further period for the application to be made (i.e. decide whether to grant an extension of time).
[7] Subsection 774(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

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

[8] A Full Bench of the Commission has held (in the context of unfair dismissal applications) the following in relation to “exceptional circumstances”: 1

[13] 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.

[9] The applicant bears the onus of demonstrating that exceptional circumstances exist. 2
[10] On 15 September 2016 the Commission wrote to the applicant and asked him to explain why he thought the Commission should extend the time for him to file the present application. He was specifically asked to address the elements of s.774(2) of the Act.

Consideration

The reason for the delay

[11] In his application the applicant explained the delay as follows:

I was able to pursue an unfair dismissal application within 21 days, I was notified that I am ineligible due to my employment being less than 6 months. As soon as I was notified of this, I organised to pursue an unlawful termination application on the grounds of Fair Work Act 2009 (772): Filing of a complaint against an employer involving alleged violation of the law not resolved in an employee’s termination. I was also unable to communicate with the FWC effectively due to an immediate death in my family, whereby the funeral was overseas. With both of the circumstances that my initial application was filed within 20 days, along with my personal and family emergency, hope for this application to be accepted.

[12] In responding the Commission’s request that he address each element of s.774(2) of the Act, the applicant replied as follows:

… my employment was immediately dismissed by ANZ on the 28th of July. After this occurred, I spent the next few days both emotionally and physically distressed from being terminated unlawfully, and began to seek advice from friends and family over the coming days to decide the next course of action. Unfortunately, during this period, my immediate cousin became very unwell, and needed to fly overseas to India during the 6th – 16th of August (see attached files).

Upon landing back in Sydney, I had one full day to determine which application to move forward with. With this, I decided to visit the registry on the 18th of August (as I had a full day of university on the 17th), where I then had the opportunity to discuss the situation with the FWC registry and choose the best option. I have explained that I was employed for less than 6months, and was unsure of which application to move forward with. I also noted that this is the last day I can submit the application, and have not received any legal advice due to the family emergency explained above.

I was told that since I was employed for less than 6 months, there is a strong chance that this application will be unheard, however was assured that if this occur[red], that I will receive a full refund of the application fee, and may be able to submit another application under exceptional circumstances. Based on this information, and overall lack of time, I went ahead and submitted an unfair dismissal application with the hopes of finally having a fair and unbiased opinion on this situation.

On the 31st of August, I received more tragic news that my grandfather passed away, and booked my flights that day to fly to India for the funeral…. I received an email two days later stating that my unfair dismissal application was rejected due to being employed for less than 6 months. I then spent the next 48 hours communicating with FWC via email, and was notified that no refund will be given as my application has been dismissed, and that I must fill another form if I wish to proceed with an unlawful termination.

As shown in the link above, September 2nd was the day of the funeral/cremation, which took the entire day, yet I still managed to prioritize this employment situation by completing and email the new unlawful termination application to the respected FWC email address with the hopes of finally having an opportunity to be heard.

I have personally done everything possible within my limits to move forward with the most suitable applications with the given timeframe of 21 days.

[13] On 23 September 2016, the respondent submitted that the applicant “has failed to demonstrate that exceptional circumstances exist…. There is nothing exceptional about the circumstances relied on by the applicant to justify the delay.”
[14] On 30 September 2016 the applicant replied to the submissions of the respondent. In relation the reason for delay the applicant wrote,

Since my unlawful termination application was submitted beyond the 21 day period, I must satisfy to FWC that there exceptional circumstances which warrant this extension. The definition of exceptional circumstances can be viewed through the case R v Kelly (Edward) [2000} QB 198 at 208, stating that 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 to be unique, unprecedented, or very rare, but it cannot be one that is regularly, or routinely, or normally encountered.’ In Barth v Timco Pty Ltd [2012] FWA 3788 at [18], FWC uses an analogy of understanding this concept, “Thus the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.”

Furthermore, Jones v Bunnings Warehouse [2016] FWC 1255 should also be considered when deciding to grant this extension to the large similarities of events. Mr Jones had submitted his unfair dismissal beyond the 21 day period, and requested for an extension of time concerning the impact of his depression following the termination of his employment, combined with his need to leave Australia urgently to fly back to the UK to deal with his father’s terminal illness. The FWC was satisfied that these were exceptional circumstances, and accepted his application to grant extra time. This is also viewed in Nudd v Commonwealth Bank 2015 FWC 780, where an application for an extension of time was granted due to her father’s illness, as this constitutes as an exceptional circumstance.

I find it extremely disrespectful and rude to see that Mr. Natenzon shows no empathy towards this situation, and claims visiting a dying first-cousin is not “out of the ordinary” nor “special.” My 16-year-old cousin was diagnosed with terminal cancer with a high possibility of passing away, so my entire my family (including myself) flew over to India to comfort him and spend quality family time. This could have been his last few weeks before he passed away, and it makes complete sense to drop everything and fly overseas due to this family emergency. This is clearly not routinely, nor normally encountered, and is clearly outside the usual course of events.

Due to these exceptional circumstances I was unable to retrieve proper legal advice on time, and was unable to consult with expert friends and family regarding this situation. Combining this information with the general advice given from FWC on the day, I incorrectly filed the wrong dispute, an unfair dismissal application. It was later dismissed by FWC on the 2nd of September, more than 15 days after my initial submission. Although I had faced more exceptional circumstances, in that my grandfather suddenly passed away and had to fly to India that same day, I was able to reprocess another application electronically within 48 hours, which accounted for the total 17 day delay.

Therefore, Smith V MacFarlane Generators is of relevance as Mr. Smith had lodged a general protections applications 14 days after his dismissal on the 28th of October 2014. On November 28th however, more than 6 weeks after his dismissal, he had realised that he filed the wrong application, and therefore discontinued his general protection claim, and filed an unfair dismissal claim. This meant that the new application was therefore out of time. FWC determined that the applicants “Lack of knowledge about the differences between an unfair dismissal remedy application and a general protections application was the reason for the delay.” His application was accepted, with FWC quoting “this matter is somewhat finely balanced, with it being moved into Mr Smith’s favour for the reason that there is a demonstration of a desire, and somewhat strongly, on his part to challenge his dismissal from an early point.” This is no different to my circumstance of submitting an incorrect application (unfair dismissal) due to my lack of knowledge of both an unfair dismissal application, unlawful termination application, and a general protections application.

[15] Where there is a delay in the filing of an application for an unfair dismissal remedy it is necessary to consider whether the employee has a credible reason for the whole of the period that the application was delayed. 3 The same principles should apply to the present application.
[16] As was recently observed by a Full Bench in Perry v Rio Tinto Shipping Pty Ltd (T/A Rio Tinto Marine,

Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 4

[17] In the present matter there are a number of relevant periods:

a) between 18 August 2016 (by which time the application should have been filed in order for it to be within time) and 2 September 2016 (when his UFD Application was dismissed) (First Period); and
b) between 2 September 2016 (when his UFD Application was dismissed) and 4 September 2016 (when the present application was filed) (Second Period).

[18] In relation to the First Period the reason for delay is that applicant had filed the wrong application. It is well recognised that ignorance of the law is not an exceptional circumstance.
[19] The applicant’s evidence is that he attend the Commission registry and was,

… told that since I was employed for less than 6 months, there is a strong chance that this application will be unheard, however was assured that if this occur[red], that I will receive a full refund of the application fee, and may be able to submit another application under exceptional circumstances. Based on this information, and overall lack of time, I went ahead and submitted an unfair dismissal application

[20] The respondent submitted that,

Ultimately, the Applicant decided to take the risk that, if his unfair dismissal application was dismissed (which, based on his own material, the Commission Registry advised was a “strong chance” of happening), he would nonetheless be able to submit another application out of time because he believed he could demonstrate exceptional circumstances.

[21] The Commission, as presently constituted, accepts that submission. Although it is not the role of the Commission to provide advice, in the face of the information provided by the Registry it is surprising that the applicant elected, of his own volition, to file the UFD Application. He bears the responsibility for making that decision. Consequently, there is nothing concerning the First Period that is exceptional.
[22] In relation to the Second Period, noting that the UFD Application was dismissed on a Friday, no criticism can be made of the applicant filing the present application 2 days later on a Sunday.
[23] Overall, the Commission, as presently constituted, is not satisfied that exceptional circumstances arise in the present matter.
[24] Therefore, this factor weighs against considering whether to exercise the discretion to allow a further period for the applicant to lodge his application.

Any action taken by the person to dispute the dismissal

[25] It is common ground that the applicant filed the UFD Application within 21 days following the termination of his employment.
[26] This factor weighs in favour of considering whether to exercise the discretion to allow a further period for the applicant to lodge his application.

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

[27] The respondent submitted the following,

26. The Respondent will suffer prejudice if the Commission allows the Applicant additional time to file the Application. The impact of an extension of time will be additional time and resources to defend the claim, which is without merit (see paragraph 29 below) and 17 days out of time.

27. The Respondent respectfully submits that it should not lightly be put to the cost and inconvenience of defending an application that has been lodged 17 days outside of the time period prescribed by the FW Act.

28. Even if the Commission finds that the delay did not cause any prejudice to the Respondent, the Respondent respectfully submits that the mere absence of prejudice is an insufficient basis to grant an extension of time.

[28] It is difficult to discern any real prejudice to the respondent beyond the usual prejudice associated with delay. Consequently, this factor is a neutral factor in exercising the discretion to allow a further period for the applicant to lodge his application.

The merits of the application

[29] The Commission notes that, for the purpose of determining whether to grant an extension of time to the applicant to file his application, like in relation to unfair dismissal matters, the Commission “should not embark on a detailed consideration of the substantive case.” 5

[30] The applicant submitted that,

… a few months before my employment even begun with ANZ (April 2016), I had unauthorised transactions on my Visa Debit Card as someone had gained access to my personal information. Months later, I received a job offer with ANZ Bank, and begun working five days a week from May immediately. On the 16th of June however, I was pulled from work by ANZ Group Investigations, where I was ridiculed and teased by the investigators during the entire process (deceptive/misleading conduct). For example, the investigations team illegally induced me to sign false authorisation documents, which they then later used against me. They also threatened to terminate my employment several times for simply exercising my employment rights.

Obviously I was very distraught and distressed about this encounter, and filed a complaint through ANZ HR (People Assist). However, for some reason, this complaint and matter was redirected back to the Group Investigators department, where they then placed me on unpaid suspension effective immediately.  I have argued that there are no grounds for this suspension, and that they are simply suspending me because I have made a complaint about their misconduct. Being on unpaid suspension for more than one month, I begun to make complaints to other government bodies against my employer (ASIC, FOS, and OAIC complaints lodged on 5th July) as this was clearly unjust and unlawful. I was later interviewed on the 28th of July, and again none of my concerns or complaints was heard. They accused me that what I am saying is not true, and that there investigators do not act in this manner. They then terminated my employment immediately for the reason of not being truthful and falsely creating an unauthorised dispute which occurred months before my employment even begun.

How can someone’s employment be placed on unpaid suspension, then subsequently be terminated immediately for the sole purpose of believing that I may of created an unauthorised dispute falsely, even when this occurred months before my employment even begun with ANZ. They had not even substantiated any claims, on my termination letter it says, “we believe,” and “on the balance of probabilities.” Again this is all a cover-up, and is being used as an excuse to hide my unlawful suspension and my unlawful termination. This doesn’t make any sense, how can an employee be fired for the sole reason of making a complaint.

[31] The Respondent submitted that,

2. …. The Applicant’s employment was terminated summarily by the Respondent on the grounds that he:

(a) falsely reported to the Respondent that his ANZ Visa Debit Card had been used fraudulently by another person, and that his intent in doing so was to fraudulently obtain an amount of $32,401 from the Respondent; and

(b) repeatedly provided misleading and untruthful responses to the Respondent’s investigators during the Respondent’s investigation into this matter.

3. The conduct constituted a breach of various policies of the Respondent, including its:

(a) Code of Conduct and Ethics, which requires the Respondent’s staff to act with honesty and integrity;

(b) Fraud Policy, which defines fraud as ‘an intentional act by one or more individuals, involving the use of deception to obtain an unjust or illegal advantage’; and

(c) Values, including ‘Integrity – do what is right’.

[32] In considering whether to grant an extension of time the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during a substantive hearing.
[33] For present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance.
[34] Because the applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.

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

[35] This factor does not appear to be relevant in the circumstances as there are no persons in a similar position.

Conclusion

[36] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.744(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.
[37] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 6

[38] Suffice to say it is not enough for the applicant to establish an acceptable explanation for delay, without also establishing that the reason is an exceptional circumstance or part of a number of factors, which when viewed jointly, represents exceptional circumstances.

[39] In considering all of the circumstances related to the application, and on the basis of the submissions made by the parties, the exceptional circumstances envisaged by s.774(2) of the Act to exercise the discretion to allow a further period within which to lodge the application do not arise in this case.

[40] The period for the applicant to lodge his application is not extended. The application is dismissed and an order to this effect will be issued with this Decision.

COMMISSIONER

 1   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 2   Wemyss v Mission Australia Employment Services[2010] FWA 1798.

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251, (2010) 197 IR 403 at [17]; Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426 at [37]. That is not to say that a credible explanation for the whole of the delay is a necessary pre-condition for the grant of an extension of time, since the reason for the delay is but one of a number of matters which are required to be considered under s.394(3) in determining whether exceptional circumstances exist.

 4   [2016] FWCFB 6963, [23], citing Shaw v ANZ Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33].

 5 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 6   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.

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