Nikul Giniwala v Omni-Channel Logistics Pty Ltd
[2022] FWC 1041
•12 MAY 2022
| [2022] FWC 1041 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nikul Giniwala
v
Omni-Channel Logistics Pty Ltd
(U2021/11882)
| COMMISSIONER CAMBRIDGE | SYDNEY, 12 MAY 2022 |
Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused.
This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Nikul Giniwala (the applicant) and the respondent employer is Omni-Channel Logistics Pty Ltd (the employer).
The application was lodged with the Fair Work Commission (the Commission) at Sydney on 20 December 2021. The application indicated that the date that the applicant’s dismissal took effect was 3 September 2021. Therefore, the application was made some 87 days after the 21 day time limit prescribed by subsection 394 (2) of the Act.
On 21 January 2022, the employer filed a response to the application (Form F3) which identified inter alia, a jurisdictional objection to the application on the basis that the application, filed on 20 December 2021, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection).
During a Pre-Hearing Conference/Conciliation proceeding conducted on 25 January 2022, attempts to reach a conciliated settlement of the matter were unsuccessful. The Commission issued Directions which required the Parties to file and serve evidence and submissions in respect to the out of time objection, and also to provide any submissions as to whether permission should be granted for the Parties to be represented by lawyers or paid agents (the representation question).
On 7 March 2022, the Commission noted that the employer had not made any submissions in respect of the representation question, and therefore permission was granted for the Parties to be represented by lawyers or paid agents as the Commission was satisfied that the requirements of s. 596 of the Act had been satisfied.
Subsequently, the Parties have provided evidence and their respective submissions regarding the out of time objection, and in accordance with Amended Directions issued on 9 March 2022. On 21 and 22 March 2022, the Parties have respectively confirmed that they were content for the out of time objection to be determined upon the documentary material which had been filed, and without any requirement for a Hearing.
Relevant Factual Background
The applicant had worked for the employer for about 8 months. The applicant was employed in a position that was given the title National Freight Manager. The employer trades as “Seko Logistics” and it conducts a business that provides supply chain solutions, specialising in e-commerce, logistics, forwarding and warehousing.
On 3 September 2021, the applicant participated in a pre-arranged video conference with inter alia, the employer’s Chief Financial Officer and its HR Manager. During the video conference the applicant was informed that his position as National Freight Manager was made redundant with immediate effect. Shortly after the video conference had finished, the applicant received an email from the employer’s Chief Financial Officer which confirmed his redundancy and attached a non-disclosure agreement and deed of mutual release documents. The applicant was working from home at the time of the termination of his employment, and at approximately 10 am on 3 September 2021, the employer arranged for a courier to attend the applicant’s home and collect his work equipment.
Following his dismissal, the applicant commenced to seek alternative employment which he successfully secured on 20 September 2021.
In November 2021, the applicant became aware that the employer was advertising to recruit new staff. The applicant believed that one of the positions that was advertised was substantially similar to the previous role that he performed as the National Freight Manager.
On about 29 November 2021, the applicant obtained legal advice which indicated that he may be entitled to make a claim against the employer for unfair dismissal.
On 10 December 2021, solicitors acting on behalf of the applicant sent a letter to the employer which indicated the prospect that the applicant would make a claim for unfair dismissal.
On 15 December 2021, the employer responded to the applicant’s solicitors advising that any unfair dismissal claim would be out of time.
On 20 December 2021, solicitors acting on behalf of the applicant filed his claim for unfair dismissal remedy which was made 87 days late.
The Applicant’s Case in Support of an Extension of Time
The applicant provided two statements that he had made, and which were respectively dated 11 January and 11 February 2022. These statements were provided as the evidentiary material to support a finding that there were exceptional circumstances upon which the Commission should grant an extension of time to permit the applicant’s unfair dismissal claim to proceed. In addition to the evidentiary material, the solicitors acting for the applicant provided written submissions respectively dated 11 February, 4 March, and 21 March 2022. This material represented the applicant’s case in support of an extension of time and his opposition to the out of time objection raised by the employer.
The submissions made on behalf of the applicant included reference to s. 394 of the Act, and the matters set out in subsection 394 (3) which the Commission was required to take into account so that exceptional circumstances could be established in order to allow a late unfair dismissal claim to be granted an extension of time.
The submissions made on behalf of the applicant firstly referred to the reasons for the delay and relevantly stated that the applicant had been caught by surprise when the employer terminated his employment on 3 September 2021. In this regard, it was noted that the applicant was not provided with any notice that his position had been made redundant. The applicant submitted that he did not consider seeking legal advice and defending his rights as his dismissal occurred during the New South Wales COVID lockdown in September 2021. Furthermore, the applicant submitted that his immediate concerns were directed towards finding alternative employment.
The submissions made on behalf of the applicant referred to the job advertisements that the applicant became aware of in November 2021, and which operated as the trigger that led the applicant to seeking legal advice regarding his dismissal. Consequently, it was submitted that the reason for the delay was connected with the discovery of the advertised positions approximately two months after the applicant’s dismissal. It was further submitted that given the reasons for delay, this factor should be treated in favour of the applicant being granted an extension of time.
In further submissions, the applicant asserted that there would be no prejudice to the employer if the extension of time was granted. The submissions made on behalf of the applicant also asserted that there was significant merit to the application on the basis that his dismissal was not a case of genuine redundancy. It was submitted that the applicant had a “prima facie highly meritorious case” and this was a factor that should be treated in favour of the applicant.
In summary, the applicant provided material which asserted that the reasons for the delay with the filing of his unfair dismissal claim involved, firstly his initial shock at the suddenness of his dismissal and his focus upon finding alternative employment, and secondly, the subsequent discovery, some two months after his dismissal, of the employer advertising to fill a position that was considered to be substantially similar to the one that he had been dismissed from. Further, the submissions made on behalf of the applicant asserted that there was no prejudice to the employer, and there were identifiable merits in respect to the application if it was permitted to proceed to Hearing and Determination. The applicant’s solicitors submitted that exceptional circumstances existed such that the Commission should exercise the discretion to provide for an extension of time for the lodgement of the claim for unfair dismissal.
The Employer's Case in Opposition to an Extension of Time
The employer provided evidence by way of a witness statement of Nataly McQueen dated 14 March 2022. Ms McQueen gave evidence as the employer’s HR Manager, and she provided information regarding the structural change that was implemented by the employer, and which resulted in the redundancy of the position occupied by the applicant. In addition, Ms McQueen provided evidence regarding the employer’s decision to create a role of Freight Sales Co Ordinator which occurred approximately two months after the applicant’s role had been made redundant. The solicitors acting on behalf of the employer also provided a document dated 14 March 2022, and which represented the respondent’s submissions opposing any extension of time.
The material provided on behalf of the employer asserted that there were no exceptional circumstances to warrant an extension of time. In particular, it was asserted that, taking into account the matters set out in subsection 394 (3) of the Act, the Commission should decline to exercise its discretion to grant an extension of time.
The submissions made on behalf of the employer focused upon the asserted reasons for the delay that had been advanced on behalf of the applicant. In this regard, particular criticism was raised of there being no explanation or any reason provided for the delay between when the applicant saw the job advertisements in November 2021, up until the filing of the application on 20 December 2021. Consequently, it was asserted that no reason had been provided for the delay beyond the delay that the applicant asserted to have been caused by only becoming aware that he could make a claim after discovery of the job advertisements.
The submissions made on behalf of the employer also challenged the asserted merits of the application. The employer asserted that it had good prospects of establishing that the termination of the applicant’s role was a case of genuine redundancy. Further, it was submitted that even if the dismissal of the applicant was found to have been unfair, it was unlikely that he was entitled to the remedy of compensation that he sought because there had been 4 weeks salary paid on termination, and the applicant subsequently secured alternative employment 3 weeks after his dismissal.
In summary, the submissions made by the employer asserted that the Commission should not exercise its discretion to grant an extension of time because: (a) exceptional circumstances had not been established, (b) there was no explanation for the applicant’s conduct causing further delay particularly in the time after the applicant had discovered the job advertisements, (c) the applicant had delayed in disputing his dismissal, and (d) there was an absence of merit in the application.
Consideration
Subsection 394 (2) (a) of the Act stipulates that an application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) allows for an extension of the 21 day time period if, pursuant to subsection 394 (3), exceptional circumstances are established.
In this case, the application was filed on 20 December 2021, which was some 108 days after the day on which the applicant’s dismissal took effect. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 87 days after the expiry of the 21 day time limit.
Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) of the Act is in the following terms:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.
Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.
Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.
In this case the delay was 87 days relevant to the 21 day time limit. Consequently, the period of the delay of a further 12 weeks and 3 days in the context of a 3 week time limit could be described as a significant delay in the context of the statutorily prescribed time limit.
Subsection 394 (3) (a) - The Reason for the Delay
In this instance, the reasons for the delay were asserted by the applicant to have initially involved his shock at the suddenness of his dismissal and that his attention was to focus on finding alternative employment. The applicant also raised difficulties associated with obtaining legal advice during a period of COVID-19 lockdown. In addition, the trigger for the challenge to the dismissal arose from the discovery of job advertisements about 2 months after the dismissal. Consequently, the primary reason for the delay was associated with the discovery of the job advertisements and there was no evidence that the applicant took any action to challenge the dismissal prior to the discovery of the job advertisements.
In circumstances where a dismissal is based upon an alleged redundancy, a subsequent discovery of a job advertisement that appeared to impugn the validity of the redundancy might represent justifiable reason for any delay with the filing of an unfair dismissal claim. In simple terms, the dismissed employee would have no reason to challenge their dismissal at any time before the discovery of a matter which potentially invalidated the reason for the dismissal.
Consequently, in this case there would appear to be sound reason for any delay during the period from dismissal until discovery of the job advertisements. Logically, the reasons for the delay in filing any unfair dismissal claim in the time after the discovery of the job advertisements would become the focus of examination and consideration as to whether an acceptable reason for delay could be established.
The employer advertised for the Freight Sales Coordinator role on 16 November 2021, and the applicant stated that “it was not until around November 2021 when I came across advertisements on Shortlyster.com …” The applicant also stated, “I finally obtained legal advice as to my rights on or about 29 November 2021…”. At this point in time, circa 29 November 2021, the applicant and his legal advisers would have been aware that if there was to be any challenge taken in respect of the dismissal of the applicant, any unfair dismissal application would be out of time, and there would have been a clear need to act without any further delay.
There was no evidence to provide explanation for the delay in the period after circa 29 November, which encompassed the subsequent letter of 10 December from the applicant’s solicitors to the employer, their response on 15 December, and then the application was not made until 20 December. In these circumstances, where any unfair dismissal claim would be significantly out of time, to delay filing any claim, which could be made in conjunction with or very shortly after direct approaches to the employer, must represent a failure to act with sufficient timeliness.
Consequently, when the reasons for the delay are carefully and objectively considered, they do not provide a sound and acceptable reason upon which to establish that the applicant acted with an appropriate level of diligence and regard for the clear need to avoid further delay in circumstances where any application for unfair dismissal would be significantly out of time.
Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect
The applicant first became aware of his dismissal on 3 September 2021, when he was advised that his position had been determined to be redundant. In fairness, the applicant did not have reason to challenge the dismissal until 16 November 2021. However, even if the subsequent activities of the employer provided a basis to consider some acceptable delay in respect to any awareness of the potential for challenge to the dismissal, the subsequent delays mean that this factor does not provide any assistance to the applicant.
Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal
The applicant did not take action to dispute his dismissal prior to the discovery of the job advertisements. There was subsequently no satisfactory explanation for any delay in disputing the dismissal in the period after the discovery of the job advertisements and before the filing of the unfair dismissal claim. Therefore, this factor does not provide any assistance to the applicant.
Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)
There was a paucity of evidence as to the details of any prejudice. No identifiable evidence was provided to support any of the submissions that were made on this point. The time frame of the delay would logically provide some potential for prejudice to arise. On balance, this factor has been treated as being neutral.
Subsection 394 (3) (e) - The Merits of the Application
This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if an extension of time was granted.
It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly, there was no evidence provided which established that the unfair dismissal claim was entirely without some potential for success, or that it contained some vital flaw which would render it open to the prospects of summary disposal.
There was evidence from the applicant that he obtained alternative employment within the 4 week period covered by severance payments made upon termination. Consequently, even if the applicant was successful in establishing that his dismissal was unfair the remedy of compensation that he sought was likely to be, at best, very limited. These circumstances disclose the very regrettable prospect that the cost of the litigation would probably significantly exceed any potential outcome for a successful plaintiff.
On any objective and balanced assessment, albeit of only an elementary nature, the applicant’s unfair dismissal claim presents as a matter with some identifiable but limited prospects for success. In particular, the dismissal was implemented with extraordinary haste and a complete absence of any consultation in respect to a purported redundancy circumstance. However, the limited potential of the remedy arising from any successful outcome, must lead to the logical consideration which would provide limited support for the granting of an extension of time.
Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position
In the absence of any evidence about the treatment of other employees of the employer this factor has been treated as being neutral.
Exceptional Circumstances
Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case of Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[1]. The consideration therein establishes a caution against adopting an overly stringent interpretation of what constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.
Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in CheyneLeanne Nulty v Blue Star Group Pty Ltd[2]and the following paragraph from that Decision is particularly helpful:
“[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.”[3]
Conclusion
In this instance the exercise of the discretion to extend time has been required in respect to a delay of 87 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.
The reason for the delay has primarily related to the post-dismissal conduct of the employer involving the recruitment advertisement for a position that had some similarity to the role that the applicant was performing when he was determined to be redundant. However, there has not been a satisfactory reason provided for the subsequent delay in the period following the discovery of the recruitment advertisement and the filing of the unfair dismissal claim.
The other factors under consideration either did not assist the applicant's claim for the Commission to exercise the discretion to extend time or were of neutral impact. There were identifiable but limited potential merits of the application. However, in circumstances where the prospects of any potential remedy were very limited, this factor has provided only limited support for the exercise of the discretion to extend time.
Consequently, in this instance the Commission has been required to carefully evaluate and balance all of the relevant factors. In particular, in this instance there was not an acceptable reason for the delay in filing the application, but the application did have some limited, recognisable merits.
On balance and having particular regard for the absence of any satisfactory reason for the delay in the period after discovery of the job advertisements, the Commission has determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case there was no acceptable reason for the delay. Therefore there could be no sound and proper justification for the Commission to exercise the discretion to extend time.
An Order [PR741264] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.
COMMISSIONER
[1] Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394
[2] Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
[3] Ibid @ paragraph 13.
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