Opinderpal Singh v Arcare Pty Ltd
[2018] FWC 7214
•26 NOVEMBER 2018
| [2018] FWC 7214 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Opinderpal Singh
v
Arcare Pty Ltd
(U2018/8944)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 26 NOVEMBER 2018 |
Application for an unfair dismissal remedy – extension of time.
[1] On 31 August 2018 Mr Opinderpal Singh (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to the application is Arcare Pty Ltd (Respondent)(Arcare).
[2] Mr Singh commenced employment with the Respondent on 4 December 2017 1. He was a Personal Support Worker. He says that he was dismissed on 4 July 2018 and the dismissal took effect on that day.
[3] The application therefore was lodged 37 days out of time.
[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application will be dismissed.
Procedural background
[5] On 13 September 2018, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement. The matter was listed for hearing on 23 November 2018.
[6] Mr Singh was self-represented. The Respondent was represented by Natalie Fowler, IR/ER Specialist.
Legislative Scheme
[7] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[8] Section 394(3) of the Act provides as follows:
“394 Application for unfair dismissal remedy
…
(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.”
[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 2where the Full Bench said:
“[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.” [Endnotes not reproduced]
[10] The onus of establishing exceptional circumstances is on the Applicant. 3
[11] This point was emphasised by the Full Bench in the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 4 which contained the following statement:
“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:
“[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …” (emphasis added)
[30] This extract must be read in its entirety. The decision goes on to state:
“[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”
[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”
Matters to be taken into account pursuant to s.394(3)
[12] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.
s.394(3)(a) the reason for the delay
[13] Mr Singh submitted that on 4 July 2018, after he was notified of his dismissal, he contacted Arcare’s whistleblower email address and was advised by Ms Fowler that the Respondent would investigate the issues he had raised. He submitted that he relied on this statement and continued trying to negotiate a resolution to the matter, however after numerous weeks passed without a positive response he lodged his application. 5
[14] Mr Singh provided copies of his email correspondence with Ms Fowler. On July 13 2018, Ms Fowler emailed Mr Singh to advise that she had looked into the matter, stating:
“I’ve spoken with the Residence Manager and it appears that the residents in Tucker have a preference for males that they know.
This would leave me to believe that she was able to reasonably direct you to work in another unit. I understand this might not have been your preference.” 6
[15] Mr Singh responded to this correspondence on 16 July 2018 stating “I request you to revoke the termination so that I can work again and will ensure there is no further misconduct in future’. 7
[16] Mr Singh does not appear to have received a response to this correspondence, and followed up with Ms Fowler on 21 August 2018. Ms Fowler’s subsequent response on 22 August 2018 reiterated that the Residence Manager was able to provide him with reasonable direction, noted that as part of the Arcare Relief Team he did not have an expectation of ongoing employment, and advised that she would liaise with the Arcare Relief Team Coordinator as to the needs of the team. 8
[17] Mr Singh’s evidence was that sometime between 4 July 2018 and 21 August 2018 he had a discussion with Ms Fowler by phone. He gave conflicting evidence as to the nature of those discussions however he concedes that at no time did Ms Fowler discuss with him the prospect of reversing his termination. On 27 August 2018, Ms Fowler sent a further response to Mr Singh confirming that he would be receiving an outstanding payment in the coming days. 9
[18] Mr Singh gave oral evidence that throughout this period his mother was unwell and that he had to provide support to his father. Mr Singh’s parents live in India and he would make a daily phone call to his father to provide support.
[19] Mr Singh also gave evidence that, following his dismissal and prior to lodging his application, he had applied for approximately 15 jobs with each application taking approximately an hour to an hour and a half to complete.
[20] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances. 10
[21] I accept the evidence of Mr Singh that he waited over a month for Ms Fowler to contact him after requesting that she revoke his termination, however this did not preclude him from making an application. Mr Singh was aware of his dismissal as at 4 July 2018 and it was at all times open to him to make an application to this Commission in pursuit of his claim.
[22] I also accept the evidence of Mr Singh that his mother was unwell and that he had many things on his mind at the time, however I do not consider the making of a daily phone call to be such an onerous task that it would have impeded his ability to make his application on time. Further Mr Singh had during that same period commenced submitting applications for alternative employment and subsequently attended interviews. This suggests Mr Singh was well aware that the probability of him returning to Arcare could not be relied upon.
[23] The last correspondence sent to Mr Singh by Arcare was on 27 August 2018. It took Mr Singh a further four days before he lodged his application and he was unable to provide reasons for this further delay. Mr Singh’s reasons for not making his application within the specified time frame, whether considered in isolation or collectively, are not reasons I consider to be out of the ordinary course, unusual, special or uncommon.
[24] I am therefore not satisfied the reasons provided by Mr Singh constitute an acceptable reason for the delay. This weighs against a finding of exceptional circumstances.
s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[25] Mr Singh submitted that he was advised of his dismissal on 4 July 2018 by email and later by post. 11
[26] Arcare submitted that Mr Singh was expressly made aware of the date his employment ended by way of letter issued on 4 July 2018. 12
[27] Mr Singh had the full 21 days from the date of termination to lodge his application. This weighs against a finding that there are exceptional circumstances.
s.394(3)(c) any action taken by the person to dispute the dismissal
[28] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 13
[29] Mr Singh submitted that he contacted the Casual Team Manager regarding his dismissal but did not receive a positive response. He subsequently contacted Arcare’s whistleblower email address and submitted he contacted Arcare’s CEO via email.
[30] Arcare confirmed that Mr Singh had contacted the Arcare Relief Team Coordinator and emailed both the whistleblower email and the CEO. 14
[31] This weighs in favour a finding that there are exceptional circumstances.
s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)
[32] Prejudice to the employer will go against the granting of an extension of time. 15
[33] Arcare submitted that they would be unfairly prejudiced should Mr Singh be granted an extension of time in which to lodge his application and that every attempt had been made to resolve the matter. 16
[34] Mr Singh submitted that as he had contacted the Respondent to look into his dismissal and they had not done so, the lateness of his application had not caused any prejudice to the Respondent. 17
[35] I consider this criterion to be neutral.
s.394(3)(e) the merits of the application
[36] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 18 it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
[37] Mr Singh submitted that he had been dismissed due to a breakdown in communication. He submitted that on 25 June 2018 he was contacted by a colleague requesting that he work a shift for one of her friends. Mr Singh’s oral evidence was that, despite feeling under stress because his mother was not well, he agreed to cover the shift. An hour into the shift, Mr Singh was requested to move from ‘Tucker’, which he submitted contained low care patients, to work in the dementia unit which contained high care patients. 19
[38] His evidence was that he advised his manager that due to his condition he would find it difficult to work in the dementia unit and would rather work in Tucker. He submitted that his manager advised him that if he did not work in the dementia unit he would be sent home and his employment terminated. Mr Singh’s evidence was that he elected not to work in the dementia unit and went home. He submitted that he later received his termination letter. 20
[39] Arcare submitted that the application is without merit. 21 They submitted that Mr Singh was a casual employee with no reasonable expectation of ongoing employment and did not meet the standard they expected.22
[40] They submitted that Mr Singh accepted the shift on 25 June 2018 despite knowing that he was unwell and potentially suffering from a mental health issue. Whilst working the shift, they submitted that the After Hours Supervisor reviewed the roster and determined that Mr Singh was not suitable for work in the Tucker Unit and instead was directed to work in the sensitive care unit. They submitted that Mr Singh refused to do so, became argumentative with the Residence Manager and then left his shift. 23
[41] Arcare submitted that Mr Singh was advised that he would be removed from the Arcare Relief Team casual bank on 4 July 2018. They submitted that this was done as there had been a number of complaints in relation to Mr Singh’s performance and capacity, and due to his failure to follow a lawful and reasonable direction. 24
[42] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 25 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.26 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.
s.394(3)(f) fairness as between the person and other persons in a similar position.
[43] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 27 as follows:
“[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
[44] Mr Singh submitted that his situation was complicated as he had purchased a house in February of 2018. He further submitted that he had been bullied in front of his co-workers and told to go home, which had impacted his self-esteem. 28
[45] Arcare submitted that should Mr Singh be granted an extension of time in which to lodge his application he would be receiving an unfair advantage over others in a similar position. 29
[46] I find this criterion to be neutral.
Conclusion
[47] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.394(3) 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.
[48] 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. 30
[49] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Mr Singh’s application to be made. Accordingly, the application is dismissed.
[50] An order 31 to that effect will accompany this decision.
COMMISSIONER
Appearances:
O. Singh for the Applicant;
N. Fowler for the Respondent.
Hearing details:
2018
Melbourne
23 November
Printed by authority of the Commonwealth Government Printer
<PR702627>
1 Exhibit A7
2 [2011] FWAFB 975
3 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403
4 [2016] FWCFB 349
5 Exhibit A1, 1d
6 Exhibit A4
7 Exhibit A4
8 Exhibit A5
9 Exhibit A5
10 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [45]
11 Exhibit A1, 1b
12 Exhibit R2, 29.2.2
13 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
14 Exhibit R1, 1e
15 Ibid.
16 Exhibit R1, 1g
17 Exhibit A1, 1g
18 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C
19 Form F2 – Unfair Dismissal Application, 3.2
20 Form F2 – Unfair Dismissal Application, 3.2
21 Exhibit R1, 1g
22 Exhibit R1, 1h
23 Exhibit R2, 10-13
24 Form F3 – Employer Response to Unfair Dismissal Application, 3.1-3.2
25 Haining v Deputy President Drake (1998) 87 FCR 248, 250
26 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
27 [2015] FWC 8885 at [29]
28 Exhibit A1, 1i
29 Exhibit R1, 1f
30 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975
31 PR702628
0
8
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