Rahesh (Reg) Maharaj v Ableridge Pty Limited

[2017] FWC 6513

[2017] FWC 6513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rahesh (Reg) Maharaj
v
Ableridge Pty Limited; Phillip Monaghan; Margaret Monaghan
(C2017/5703)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 DECEMBER 2017

Application to deal with contraventions involving dismissal.

[1] Mr Rahesh Maharaj alleged that the termination of his employment by Ableridge Pty Limited was in breach of the general protections provisions of the Fair Work Act 2009. Ableridge denies the allegation.

[2] At a prehearing mention, I granted Mr Maharaj permission to be represented by a lawyer as I was satisfied, given the legal arguments about the date of dismissal, the matter involved some complexity and that permitting legal representation would enable the matter to be dealt with more efficiently. Further, as there was no opposition to permission being granted, I exercised my discretion and granted permission.

[3] On 30 November 2017, the solicitors for Ableridge advised that it did not oppose Mr Maharaj’s application for an extension of time and did not wish to make any submissions. It sought to be excused from attendance and that application was granted.

[4] There is a dispute between the parties as to when the dismissal took effect. Mr Ableridge was initially given notice that his employment would be end on 29 September 2017 due to his position being made redundant¹. On 25 September 2017, Mr Maharaj received a letter of termination advising that his employment was terminated with immediate effect for serious misconduct.²

[5] If, as Mr Maharaj submitted, his dismissal took effect on 29 September 2017 then his application was lodged within time. If however his dismissal took effect on 25 September 2017 his application was lodged one day outside of the 21 days provided for in the Act. This decision will assume that Mr Maharaj’s dismissal took effect on 25 September 2017 and hence he requires an extension of time.

[6] The Commission can extend time for the lodging of a general protections 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. Only if it is satisfied that there are exceptional circumstances, can it then exercise its discretion to decide whether to extend time.

[7] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd³ where 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]

(a) the reason for the delay;

[8] Mr Maharaj gave evidence that having received the letter on 25 September 2017 he sought legal advice and was told that the purported termination on 25 September 2017 was invalid because, once lawfully terminated, Ableridge were unable to rely upon a different reason to effectively “undo” a valid initial termination. He was advised that his application needed to be lodged by at least 20 October 2017.⁴

[9] Mr Maharaj had personal matters that he needed to attend to between 30 September and 24 October 2017 including his daughter’s wedding and travel overseas. On 17 October 2017, his solicitor advised him that she had lodged the application.⁵

[10] I am satisfied that Mr Maharaj had a reasonable explanation for the delay. The delay arose because of his representative’s error in not recognizing that the dismissal had taken effect on 25 September 2017. Mr Maharaj having received legal advice to this effect was entitled to rely on that advice. This weighs in favour of a finding that there are exceptional circumstances.

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

[11] Apart from lodging this application, Mr Maharaj took no other steps to dispute the dismissal. This weighs against a finding of exceptional circumstances.

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

[12] There was no evidence or any submission that there was any prejudice to Ableridge. While a lack of prejudice to the employer alone does not support a finding of exceptional circumstances, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(d) the merits of the application;

[13] In the matter of Kornicki v Telstra-Network Technology Group⁶ the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. 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."⁷

[14] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case."⁸

[15] In this matter the evidence of Mr Maharaj is unchallenged. As Ableridge will bear the onus of establishing that Mr Maharaj was not terminated for a reason prohibited by the Act, I find that the merits of the claim weigh in favour of a finding of exceptional circumstances.

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

[16] There were no submissions that there were any persons in a similar position.

Conclusion

[17] I am satisfied that there are exceptional circumstances which warrant extending time for Mr Maharaj to lodge his application. He has a reasonable explanation for the delay and the merits of the application weigh in favour of a finding of exceptional circumstances.

[18] I prepared to exercise my discretion to extend time in circumstances where Ableridge has advised that it does not oppose such an order being made. An order extending the time for Mr Maharaj to lodge is his application will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

R. Sutton for the Applicant.

Respondent excused.

Hearing details:

2017.

Melbourne, by telephone:

6 December.

1 Exhibit A1 at [13]

2 Exhibit A1 at [18] and letter of termination attached to the application.

3 [2011] FWAFB 975

4 Exhibit A1 at [18]

5 Ibid at [21]-[22]

6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

7 Ibid

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

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