Rajeev Kumar Gupta v Velocity Vehicle Group Australia Pty Ltd
[2024] FWC 945
•15 APRIL 2024
| [2024] FWC 945 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rajeev Kumar Gupta
v
Velocity Vehicle Group Australia Pty Ltd
(U2023/12102)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 15 APRIL 2024 |
Application for an unfair dismissal remedy – application made outside time prescribed – whether further period should be allowed – whether there are any exceptional circumstances – no exceptional circumstances found – discussion of ss 723, 725-730 and 773 of the Fair Work Act 2009 – application dismissed.
On 16 October 2023 Mr Rajeev Kumar Gupta applied under s 773 of the Fair Work Act 2009 (Act) for the Commission to deal with an unlawful termination dispute. Mr Gupta’s employment with the respondent, Velocity Vehicle Group Australia Pty Ltd, was terminated on 26 September 2023. Question 2.4 of the application form asks whether the person making the application is able to make a general protections court application in relation to the conduct the subject of the dispute. The text of s 723 of the Act which provides that a person must not make an unlawful termination application in relation to conduct if the person is able to make a general protections court application in relation to the conduct (see Division 8 of Part 3-1), is also set out in the application form. Mr Gupta did not answer question 2.4. The application was listed for a Mention and directions hearing at 9:30 am Friday, 3 November 2023 to deal with this issue.
On 2 November 2023 at 4:53 pm, Mr Gupta sent my chambers an email apologising for the late response, stating he would not be able to attend the mention and requesting it be rescheduled. Information about the reason Mr Gupta could not attend was sought and he subsequently contended that “[d]ue to some unavoidable circumstances, [he] had to travel overseas. [He was] currently in India where there is a time difference of 5.5 hours. In addition, [he was] in a remote area where the internet connectivity is very weak”. The explanation was not satisfactory, particularly as he was communicating by email which requires an internet connection and Mr Gupta was informed that the matter would proceed as scheduled.
The respondent attended the mention and Mr Gupta did not. The respondent made an oral application for the applicant’s application to be dismissed under s 587(1)(a) of the Act as the s 773 application is prohibited by s 723 of the Act. Following the mention, I issued directions requiring that the respondent and the applicant file materials in respect of the respondent’s oral application to have the matter dismissed. A hearing date was scheduled for 4 December 2023. Mr Gupta did not comply with the directions. The hearing proceeded as scheduled.
At the hearing I drew Mr Gupta’s attention to his failure to comply with my directions and explained to him the respondent’s application and the broad differences and purposes of ss 365, 394 and 773 of the Act. Having given an overview of the challenges Mr Gupta faced and his various options, I gave Mr Gupta a further opportunity to seek advice and directed that he provide to my chambers by close of business 8 December 2023, advice about whether he pressed his application, whether he applied to amend the application, or whether he discontinued the application to commence a more appropriate application. I indicated that if Mr Gupta did not respond, I would determine the respondent’s application. My Associate sent Mr Gupta an email confirming this and providing contacts to access legal assistance.
Mr Gupta did not respond as directed nor did he make contact to seek some legal assistance as advised in the email. My Associate called Mr Gupta on 11 December 2023 at which point he indicated he had filed an unfair dismissal remedy application on 5 December 2023, and he requested that I amend his s 773 application so that it is a general protections FWC application. The applicant’s unfair dismissal application was likely to be prohibited by s 725, the rule against multiple applications in respect of complaints about a dismissal. This would have remained the case, even if I were minded (and empowered) to allow the amendment sought. Given the nature of the complaint Mr Gupta makes about his dismissal, an unfair dismissal remedy application appears to be the appropriate application to make. The applicant complains about the fairness of his dismissal and had little basis for alleging as a reason for dismissal, the pro forma tick-a-box prohibited reasons found in the s 773 application. Mr Gupta subsequently discontinued his s 773 application by telephone on 19 December 2023.
Section 725 of the Act prevents multiple applications being made in relation to the same dismissal in particular circumstances and provides that “[a] person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”
Applications made under s 773 (unlawful termination) and s 394 (unfair dismissal remedy) are two such applications with which s 725 is concerned.
At the time Mr Gupta made his unfair dismissal application, the s 773 application was still on foot in that it had not been withdrawn, failed for want of jurisdiction or resulted in a certificate under s 776(3)(a) of the Act being issued. Section 730 therefore applied when Mr Gupta made his unfair dismissal remedy application under s 394. Section 729 applied to the unfair dismissal remedy application. Therefore, Mr Gupta made his unfair dismissal remedy application, an application of a kind referred to in s 729 at a time (on 5 December 2023) when s 730 applied. Mr Gupta was prohibited from making the unfair dismissal remedy application on 5 December 2023. That application was not made in accordance with the Act and is liable to be dismissed under s 587(1)(a). But so too was the s 773 application because it was prohibited by s 723.
In any event Mr Gupta’s unfair dismissal remedy application was made outside of the time prescribed in s 394(2). Mr Gupta’s dismissal took effect on 26 September 2023 and his unfair dismissal remedy application was made on 5 December 2023. An in-time application was required to be made by the end of 17 October 2023. The application was therefore made 49 days after the prescribed lodgement period had elapsed. A further period within which Mr Gupta may make his unfair dismissal remedy application must be allowed if the application is to proceed.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may 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 can be considered exceptional.[1]
Section 394(3) allows the Commission to exercise a discretion to grant an extension of time, if the Commission is satisfied there are exceptional circumstances taking into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
That these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.
Reason for the delay
The Act does not specify what reason or reasons for delay might favour the granting of an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation.[2] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all the circumstances must be considered.[3] The period of the delay with which the explanation is concerned is 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, but the circumstances from the date the dismissal took effect may be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation and may inform the weight that is attached to the reason for the delay.[4]
In preparing the extension of time hearing Mr Gupta was directed to file and serve an outline of submissions, any statements of evidence and any other document on which he intended to rely in support of his extension of time application by 5:00 pm on 3 January 2024. In response, Mr Gupta filed a short email in which he contended:
I, Rajeev Gupta, along with my daughter Palak Gupta and my friend Vimal Mendiratta, attended the hearing on December 4th, 2023, for application C2023/6290 in front of the Deputy Commissioner (sic).
This application was filed within 21 days of my unfair dismissal/forceful resignation. During the hearing on December 4th, 2023, in front of the Deputy President of the Fair Work Commission, I was advised that my application was submitted using Form F9, which was an incorrect application. I should have used the General Protection Unfair Dismissal Application (Form F2), which I submitted on the very next day, December 5th, 2023, after the hearing.
Here, I humbly request an extension of time, as both forms F9 and F2 looked similar to me, leading to the error in filing the incorrect application.
Now that the correct application (U2023/12102) is in effect, I am requesting an extension of time to be granted.
Looking forward to hearing from you and kindly let me know if further information is required.
In Mr Gupta’s reply submissions, he contended as follows:
The undersigned, hereinafter referred to as the petitioner, brings forth the matter for your esteemed consideration. It is imperative to apprise the honourable office that the respondent, VVG Aus Pty Ltd, is vehemently contesting the legality of my plea for an extension. Regrettably, they are neglecting the crucial fact that the initial application was duly submitted within the prescribed 21-day timeframe subsequent to the termination. I hereby quote, "The intention was to hold them accountable for wrongdoing promptly upon the loss of my employment."
Upon discovering, on the day of the hearing, that my application had been erroneously filed under an incorrect segment, immediate corrective measures were undertaken. I expeditiously rectified the procedural error by submitting a lawful application in the appropriate section(F2) on 5th Dec’23. It is regrettable to admit that my financial constraints and limited resources pale in comparison to those at the disposal of VVG Aus Pty Ltd for legal representation. Nevertheless, I remain sanguine that the judicious bench will afford me a fair opportunity to articulate my position.
I respectfully implore the honourable Deputy President to grant me an extension. The primary intent was unmistakably to hold VVG Aus Pty Ltd accountable for their transgressions promptly within the statutory 21-day period following my unjust dismissal, irrespective of the categorization of the application. [Underlining in original]
In substance, Mr Gupta appears to contend that the reason for the delay is that he made the wrong application and that the two forms looked similar resulting in Mr Gupta filing the wrong application. Moreover, he suggests that he did not become aware that he could not make his s 723 application until 4 December 2023, and he thereafter promptly made this application. But this explanation cannot be accepted. On 3 November 2023, my Associate wrote by email to Mr Gupta in connection with his s 723 application in the following terms:
I refer to the matter above and attach directions for your attention.
At [a] (sic) case management conference before Deputy President Gostencnik this morning the respondent made an oral application for this application to be dismissed under s 587(1)(a) of the Fair Work Act 2009 (Cth) as the s 773 application is prohibited by s 723 of the Act which provides:
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.
Information on general protections applications can be found here: Dismissal under general protections | Fair Work Commission (fwc.gov.au)
Information on unfair dismissal applications can be found here: Unfair dismissal | Fair Work Commission (fwc.gov.au)
A notice of listing for the hearing will issue in due course.
Three things are noteworthy about this email. First, Mr Gupta is told that his s 773 application is likely to be prohibited because of the operation of s 723 of the Act. Second, Mr Gupta is advised that information about a dismissal under general protections and unfair dismissal provisions of the Act is available. Third, the information is accessible through the email which helpfully provided hyperlinks to the information.
During the extension of time hearing Mr Gupta variously said that he was abroad in India, that he did not have internet access, that he could not remember when he accessed the email above and may have done so when he returned to Australia at the end of November but did not understand the terminology.[5] He provided no probative evidence about the lack of internet access while abroad[6], but plainly he had some access because as I have earlier noted , Mr Gupta sent an email to my chambers on 2 November 2023 at 4:53 pm apologising for the late response, stating he would not be able to attend the mention scheduled for 3 November 2023 and requesting it be rescheduled. And later, again by email, Mr Gupta provided further particulars in support of the adjournment application. Moreover, Mr Gupta took no steps to inform himself, for example by consulting the information on the Commission’s website or by using the hyperlinks in the 3 November 2023 email, or by contacting my Associate, the author of the 3 November email to seek clarification if indeed he did not understand the terminology.[7]
Furthermore, I do not accept that Mr Gupta erroneously made the s 773 application because that form and the unfair dismissal remedy form are similar. First, he does not make that point in his unfair dismissal remedy application when asked to explain why the application was lodged outside of the time prescribed. Second, if the two forms looked similar to him, that suggested that he looked at both forms at the time he prepared and lodged his s 773 application and he chose to complete the s 773 application. Third, during the hearing Mr Gupta said he completed the s 773 application, after checking his eligibility, and to the best of his understanding he submitted the s 773 application at that time. He said that he did a few things like Google as well and that “[he] took maybe three, four days to submit this application. It wasn't like that [he] filled this application in a [few] minutes . . .”[8] All of this is inconsistent with being confused about which form to use.
During the hearing Mr Gupta also suggested that he was struggling with mental health issues[9] but provided no medical evidence from which I could assess the impact if any that a mental health condition might have had on his capacity.[10] Ultimately, Mr Gupta did not rely on his mental health conditions to explain the delay.[11]
In the circumstances, I consider the applicant made a decision to pursue a particular application in relation to his dismissal. Information on the s 773 application form alerts a prospective applicant to the fact that the application is not an appropriate application if the prospective applicant can make a general protections dismissal application. There is no reference to unfair dismissal in the information accompanying the s 773 application. The applicant took his time to lodge the s 773 application over some days. I do not consider he was confused or thought he was completing an unfair dismissal remedy application. That he initially lodged an application that was prohibited does not explain the delay. He was alerted to that fact well before he ultimately lodged this application. I am therefore not persuaded the Mr Gupta has provided an acceptable or plausible explanation for the whole of the delay. That he has not done so weighs significantly against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
There is no dispute that Mr Gupta became aware of the dismissal on the day that it took effect. Mr Gupta resigned from his employment on 26 September 2023 but says he did so because he was told he would be dismissed.[12] Normally, that an applicant did not become aware of the dismissal after it took effect means the applicant had the benefit of the full 21-day period within which to lodge the application, and so might be a factor that weighs against a conclusion that there are exceptional circumstances. Here, Mr Gupta erroneously applied under s 773 of the Act to challenge his dismissal. He did so within the time prescribed. In these circumstances this consideration weighs neutrally.
Action taken to dispute the dismissal
Mr Gupta lodged the s 773 application. I accept this was a step taken to dispute the dismissal. This is a matter that weighs in Mr Gupta’s favour, but it is not of significant weight.
Prejudice to the employer
The respondent contends that it will be prejudiced if an extension is granted primarily because it has had to deal with multiple proceedings related to the erroneous s 773 application and this out of time application. The respondent accepts that there will always be some prejudice to an employer if an extension of time is granted, since the employer will be required to prepare its response to the application. But here it has already had to deal with the earlier application, and it must be said that it will likely be involved in further interlocutory proceedings because this application is also may be barred by s 723 of the Act. In these circumstances, I consider there is some, though not great prejudice to the respondent and so this consideration also slightly weighs against Mr Gupta.
Merits of the application
Absent Mr Gupta giving any evidence about the contentions that he proposes to advance in respect of his application, it is difficult to assess the merits. It is also difficult to assess the merits in the context of what is essentially an interlocutory proceeding, one where the merits are not tested as they would be in a final hearing. The respondent contended that the merits consideration should weigh neutrally.
According to the application as filed, Mr Gupta says he received a letter by email dated 11 September 2023, requesting a meeting to discuss his performance. The performance issue concerned his daily closing rate for 10 days (between 1 May and 12 May 2023) which was said to be below the minimum target of $3,000.00 for every day worked. Mr Gupta attended the meeting on 12 September 2023 and received a follow-up email the same evening, seeking clarification on the same matters that he had addressed during the meeting. Mr Gupta responded to that email the following day. Subsequently, on 21 September 2023, Mr Gupta received a show cause letter requiring that he show cause why his employment should not be terminated for unsatisfactory conduct. He was invited to show cause at a meeting at the respondent’s head office on 26 September 2023. He provided a reply to the matters raised and he attended the scheduled show cause meeting. During the meeting, Mr Gupta says he maintained the allegations made against him were unfounded and that he supported these contentions with ample evidence. He says he clarified his responses, and that all his questions about the “incorrect allegations remained unanswered”. After a private discussion, Mr Gupta says he was informed that the respondent intended to terminate his employment, unless he chose to resign. He maintains he had no alternative but to resign during that meeting, providing two weeks’ notice.
If Mr Gupta’s contentions are accepted, then he will be able to show that there was a dismissal. As to his response to the performance issues raised these are yet to be tested. At best it may be said that his case is not without merit. I agree with the respondent that the merits of the application weigh neutrally. Moreover, even if an extension of time were granted, this application may be dismissed because the application when made was prohibited by s 725 of the Act.
Fairness as between the Applicant and other persons in a similar position
Mr Gupta was not able to provide me with assistance about this consideration. As has often been stated, although extension of time cases will generally turn on their own facts the fairness consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between an applicant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided. The respondent referred to two decided cases which had some similarity to the facts here.[13] I agree that the cases bear some similarity in that in each one form of dismissal related application was made then withdrawn and replaced, out of time, with another. In both cases an extension of time was not granted. But in the end, I do not consider the cases to be sufficiently similar so as to weigh against Mr Gupta. This consideration weighs neutrally.
In light of the circumstances discussed above, I do not consider that there are any exceptional circumstances. This is so whether the circumstances are assessed collectedly or separately. None of the matters remotely come near being a combination of exceptional factors, nor do they as factors which are individually of no particular significance, combine so that when taken together, they could be considered exceptional. The period of delay is relatively lengthy, and Mr Gupta has not credibly explain the whole of the delay, a step was taken to dispute the dismissal, there is some prejudice to the employer, and the other considerations weigh neutrally. Therefore, this is not an occasion on which consideration of whether to allow a further period arises because the jurisdictional precondition - exceptional circumstances - do not exist.
Order
I order that:
The application to allow a further period within which Rajeev Kumar Gupta might be allowed to lodge an unfair dismissal remedy application is refused; and
The application (U2023/12102) lodged by Mr Gupta on 5 December 2023 outside of the time prescribed in s 394(2) of the Fair Work Act 2009 is dismissed.
DEPUTY PRESIDENT
Appearances:
R Gupta appeared unrepresented
D Cross appeared for the Respondent
Hearing details:
22 February 2024
Melbourne
[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]
[2] See for example Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974; Roberts v Greystanes Disability Services; Community Living[2018] FWC 64
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[4] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]
[5] Transcript PN98-PN181
[6] TranscriptPN359-PN360
[7] Transcript PN149-PN181
[8] Transcript PN 290
[9] Transcript PN342
[10] Transcript PN343-PN349
[11] Transcript PN350-PN356
[12] Transcript PN365-PN376
[13] See GHD Pty Ltd T/A GHD v Kevin Alan Black[2023] FWCFB 38 and Ardolli v Money Talk Pty Ltd 2011] FWAFB 975
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