Rajeshwar Prasad v Hoban Recruitment Pty Ltd

[2024] FWC 401

[2024] FWC 401 [Note: An appeal pursuant to s.604 (C2024/1325) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rajeshwar Prasad
v

Hoban Recruitment Pty Ltd

(U2023/11870)

DEPUTY PRESIDENT ROBERTS SYDNEY, 14 FEBRUARY 2024

Application for an unfair dismissal remedy- extension of time

1. On 28 November 2023, Mr. Rajeshwar Prasad (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) with the Fair Work Commission (Commission). The Applicant’s former employer and respondent to the application was Hoban Recruitment Pty Ltd (Respondent).

1. The Respondent objected to the application on three bases. First, the Respondent said that the Applicant was not dismissed by the Respondent. Second, the Respondent said that the Applicant was not protected from unfair dismissal because he had not completed the minimum employment period in accordance with s.382 and s.384(2). Further and in the alternative, the Respondent said the application was made outside the 21-day time limit prescribed by s.394(2) of the Act. Section 394(2) of the Act provides that an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3).

1. Contrary to the Respondent’s submission that the Applicant had not been dismissed, the Applicant contended that the dismissal took effect on 19 September 2023. In that event, the deadline for the filing of the application would have expired on 10 October 2023 and the application would be 49 days outside the prescribed time limit. The Applicant accepted that his application is outside the time limit by that period.

1. Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time or alternatively, extend the 21-day time limit provided for in section 394(2)(a).[1] The Applicant has asked the Commission to exercise its discretion to extend the time limit under s.394(3) of the Act. That course was opposed by the Respondent.

1. Directions were made that the parties file and serve evidence and submissions going to the issue of whether an extension of time should be granted. The matter was heard on 6 February 2024. This decision deals only with the question of whether or not the time for the making of the application should be extended. Having regard to my conclusion that there should be no extension of time, it is unnecessary to consider the Respondent’s remaining objections beyond the attention that they receive in this decision.

Background

1. The Respondent is a labour hire firm. The Applicant commenced his employment with the Respondent in or about February 2022. He was employed as an “on-hire casual employee”. On 19 September 2023 the Applicant was told that his assignment with one of the Respondent’s clients, Unitrans, was coming to an end due to a reduced workload.

1. On 25 September 2023 the Applicant emailed the Respondent requesting he be provided with an employment separation certificate. A certificate was provided. The certificate cited the employee ceasing work voluntarily as the reason for the separation.

1. On 2 October 2023 the Applicant emailed the Respondent asking for a revised separation certificate. Further emails followed in relation to the cessation of the Applicant’s work at the Unitrans site. No revised separation certificate was provided.

1. The Applicant maintains that the termination of his employment with the Applicant took effect on 19 September 2023 when his engagement at Unitrans came to an end. The Respondent says that there was no dismissal on that date or at all. They say the Applicant’s assignment with a particular client came to an end due to a reduced workload and that the Applicant was offered alternative work which he declined. The Respondent says that the Applicant voluntarily resigned his employment with them. Further, the Respondent says that even if the Applicant were dismissed on 19 September, which the Respondent denies, the application is 49 days out of time and there are no exceptional circumstances justifying an extension in this case. For the purposes of this decision I will assume, as the Applicant contends, that the Applicant was dismissed and that the dismissal took effect on 19 September 2023.

Legislation

1. Section 394 of the Act provides that the Commission may allow a further period for an application for an unfair dismissal remedy to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:

(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.

1. I deal with these criteria below.

Reason for the delay

1. The Applicant cited a number of factors as accounting for the delay in filing the application. He relied on the shock, confusion and surprise caused by the termination. Second, the Applicant said he had several communications with the Respondent after 19 September and he waited for a telephone call from the accounts manager of the Respondent. Third, the Applicant said he had to “fulfil some urgent compliance requirement of a government agency” which involved getting a separation certificate from his ex-employer. Fourth, the Applicant referred to and relied upon his involvement in an ongoing NSW police matter which distracted his attention from the application. Fifth, the Applicant said he had erroneously applied to an organisation named ‘Employee Dismissals’, on the misunderstanding that this was part of the Commission or the Fair Work Ombudsman (FWO). Sixth, the Applicant said he contacted a number of employment lawyers but he was unable to pay the legal fees that were being asked of him. Eventually the Applicant said he contracted a lawyer in a different field and was told to take urgent steps. He also contacted the Fair Work Ombudsman and was ultimately referred to the Commission. Finally, the Applicant said he was under the impression that there was a three-to-six-year time limit for unfair dismissal applications.

1. The Respondent submitted that the reasons cited by the Applicant did not provide an acceptable explanation for the delay such as to support the conclusion that there were exceptional circumstances. The Respondent said that shock or distress would generally not warrant an extension of time unless an applicant can establish that their condition impacted on their capacity to lodge an application. They pointed to the absence of medical evidence to support the conclusion that the Applicant suffered from an incapacity that materially impeded his ability to file an application.

1. The Respondent said the evidence showed not that the Applicant was incapacitated but rather the opposite. They said it showed the Applicant took and was capable of taking various steps between 25 September and the date the application was filed and that this showed the Applicant was not incapacitated but was capable of filing an application. The Respondent argued that compliance with the requirements of another government agency should not be regarded as an acceptable reason for the delay and beyond the assertion that this distracted the Applicant, did not show that the Applicant’s ability to file an application was materially affected. A similar submission was made in relation to the Applicant’s involvement in a NSW police matter.

1. The Respondent submitted that the Applicant’s reliance on his engagement with ‘Employee Dismissals’ should be discounted because the form completed by the Applicant was dated 14 November 2023, that is, outside the 21-day time limit. The Respondent said this was not a case of an Applicant mistakenly filing an application with another body within the statutory timeframe. Further, the Respondent said it would or should have been apparent to the Applicant from the documentation itself that he was not completing or filing an unfair dismissal application but rather was submitting a form for a free assessment of his claim to an entity that was not part of the Commission. The Respondent said the Applicant’s misapprehension as to the limitation period was not an exceptional circumstance and that any reliance on the fact that his employment contract makes no mention of the limitation period should be disregarded.

1. The relevant delay in this case is the period from 10 October 2023 to 28 November 2023 when the application was filed. Circumstances arising prior to the delay may be relevant to the reasons for the delay.[2] In this case I do not consider that the matters raised by the Applicant separately or in combination, provide a reasonable or adequate explanation for the 49-day delay in filing the application. Although I do not doubt that the Applicant was shocked by events on 19 September 2023, I do not consider that the impact was so significant that the Applicant was incapable of preparing and filing an application. There was no medical evidence that this was the case and the evidence that was provided about the events which followed showed that the Applicant was able to take various positive steps in relation to what had occurred on 19 September. Those steps were taken both before and after the expiration of the time period. The steps were misguided and did not bear fruit until 28 November 2023, but they do not support the view that there was an underlying reason or reasons that prevented steps being taken in the Commission and explained the delay in taking those steps.

1. The Applicant’s communications with the Respondent shortly after the events of 19 September 2023 are of little assistance to the Applicant in explaining the delay. The Respondent made the Applicant’s position clear to him in writing on a number of occasions. The Respondent did not do anything in its communications to prevent or hinder the Applicant from making an unfair dismissal application. 

1. I also do not regard the reliance on “compliance requirements of a government agency” relating to obtaining a separation certificate and an unparticularised “involvement in a NSW police” matter as being of much assistance to the Applicant. The Applicant requested a separation certificate from the Respondent and was provided with it. The details of the police matter were not provided. Matters which meet that description can vary considerably in terms of seriousness and the attention that they demand. In some circumstances they could include matters that would account for a period of delay in filing an application. The evidence here does not allow such a conclusion to be drawn. There was no evidence as to the nature of the matter, the level of the Applicant’s involvement or even the time at which the issue arose.

1. The steps taken by the Applicant through the entity called Employee Dismissals is also of limited value in explaining the delay. The Applicant did not take those steps until 35 days after the expiration of the statutory time limit. Beyond the completion of the form on 14 November 2023, there was no evidence that the Applicant took any other steps in the absence of any response from Employee Dismissals to contact that organisation again to find out what had happened after the form was lodged.

1. As to other advice sought by the Applicant, the evidence shows that he did not contact his lawyer or the FWO until the day before the application was filed. The delay is not explained by reference to any act or omission on the part of either of those parties. Any misapprehension by the Applicant as to the time period available might, to some extent explain, why the Applicant was tardy in making an application, but such a misapprehension is unexceptional. The misapprehension was not attributable to the Respondent.

1. The reason for the delay is one of number of factors to be considered to determine whether exceptional circumstances exist. Taken as a whole, I do not consider that the circumstances relating to the reasons for the delay weigh in the Applicant’s favour here.

Whether the Applicant first became aware of the dismissal after it had taken effect

1. The Applicant said that he was made aware by the State Manager of Unitrans that work at Unitrans was coming to an end on 19 September 2023. The Respondent’s evidence was that he was also made aware by the Respondent on the same day that his on-hire assignment at Unitrans was coming to an end due to a reduced workload. In terms of the events that the Applicant says constituted his dismissal, there is no doubt that he was made aware of the circumstances on 19 September 2023 and had the benefit of the full 21-day period to lodge his application. This weighs against a conclusion that there are exceptional circumstances justifying an extension of time.

Any action taken by the Applicant to dispute the dismissal

1. Where an applicant disputes a termination and puts an employer on notice that the decision may be contested, this can weigh in favour of granting an extension of time.[3] Here the Applicant provided evidence that he had an email exchange with the Respondent in early October 2023. The emails related to the Applicant’s separation certificate and his inquiries about whether his position at the Unitrans site had been filled. The Respondent asked the Applicant if he wanted the separation certificate revoked and whether he wanted to be placed in alternative employment. No clear response was given. The email exchange did not indicate that the Applicant was challenging his “dismissal” by the Respondent. There was very limited evidence about discussions the Applicant had with Unitrans after he was told his work there was finishing. There was no evidence of such discussions with the Respondent, the Applicant’s employer. There was no evidence that the Applicant took steps that would have put the Respondent on notice that the events of 19 September 2023 were being challenged by the Applicant as an unfair dismissal by the Respondent. I find that no such steps were taken. This weighs against a conclusion that there were exceptional circumstances.

Prejudice to the employer

1. I am unable to identify any relevant prejudice to the Respondent that would be associated with the grant of an extension of time. I regard it as a neutral consideration.

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

1. The Applicant was unable to point to other persons in a similar position. I regard this as a neutral consideration.

Merits of the Application

1. I am not required to embark on a detailed consideration of the substantive case[4] or to resolve all contested facts going to the merits for the purpose of dealing with this application. That would be a matter for a full hearing.

1. However, there were many matters that were not in dispute. The Applicant was employed by the Respondent. He was not employed by Unitrans. The Applicant’s assignment with Unitrans came to an end. The Applicant’s employment agreement provided that the employment was on a casual basis terminable on one hour’s notice and contained an express term to the effect that the termination of an assignment did not of itself constitute termination of the employment.[5] On several occasions after the alleged dismissal on 19 September 2023, the Respondent told the Applicant that it could place the Applicant on a new assignment with a different client. The Applicant asked the Respondent for a separation certificate. The Respondent provided a certificate and later offered to revoke the certificate if the Applicant confirmed that he wished to remain in employment with the Respondent.

1. For an unfair dismissal application to succeed an Applicant must show, amongst other things, that they have been dismissed and that the dismissal was harsh, unjust or unreasonable.[6] The term “dismissed” for the purposes of unfair dismissal matters is defined in s.386. That section relevantly provides:

386 Meaning of dismissed

(1)  A person has been dismissed if:

(a)  the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

1. Section 387 sets out the criteria to be considered in the determination of whether a dismissal was harsh, unjust or unreasonable. Even taking the most generous view of the evidence for the Applicant as to the various matters set out in that section going to the merits of his claim, I am unable to discern anything that supports the view that the circumstances, including any conduct on the part of the Respondent, would favour a conclusion that the asserted “dismissal” of the Applicant was harsh, unjust or unreasonable.

1. I make one other observation. The question of whether a person has been “dismissed” has been described as a jurisdictional fact in relation to applications made under s.365 of the Act.[7] The same question is obviously central to applications under Part 3-2 of the Act. Whether or not a person has been dismissed within the meaning of s.386 usually depends on findings of fact. It seems to me that where the issue of dismissal is raised, it would be very difficult to make an assessment of the merits of an unfair dismissal claim, even on a preliminary basis, in the absence of at least some consideration as to whether or not there has been a dismissal at all. Whilst I am not required here to finally determine the matter, I think it unlikely on the evidence that the Applicant was dismissed under either limb of s.386(1). There is nothing to suggest that the Applicant’s employment was terminated on the employer’s initiative. There was no action by the Respondent that either intended to bring the employment relationship to an end or had that probable result,[8] or which resulted directly or consequentially in the termination[9] of the employment relationship. The evidence was to the contrary. The Respondent offered the Applicant alternative assignments with different clients. They offered to revoke the separation certificate on more than one occasion. These are steps which are consistent with the Respondent attempting to keep the casual employment relationship alive.

1. If it is assumed that the Applicant resigned from his employment by the request for a separation certificate, there is no basis to conclude that such a resignation was brought about because the Applicant was forced to resign as a result of conduct, or a course of conduct, engaged in by the Respondent. The evidence does not support a conclusion that the Applicant was forced to resign because of any conduct on the Respondent employer’s part.

1. In my view the merits of the application are weak and the prospects of the matter ultimately being successfully prosecuted by the Applicant are very limited. This weighs against a conclusion that there are exceptional circumstances warranting an extension of time.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. 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.[10] 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. ^[11]

1. Having regard to all of the circumstances of this case and the matters in s.394(3), and my conclusions in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time.

Conclusion

1. The Applicant’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

Mr Rajeshwar Prasad for the Applicant.
Mr Ben Holding, Counsel for the Respondent.

Hearing details:

By Video using Microsoft Teams at 10:00am AEDT on Tuesday, 6 February 2024.

[1] Section 396(a).

[2] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).

[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[4] Kyvelos v Champion Socks Pty Ltd Print T2421.

[5] Exhibit A7 Clause 3.1(d).

[6] Section 385.

[7] See Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101 and Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591.

[8] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769.

[9] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].

[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.

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