Rajinder Singh v EGroup Protective Services Group Pty Ltd
[2024] FWC 1305
•17 MAY 2024
| [2024] FWC 1305 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Rajinder Singh
v
EGroup Protective Services Group Pty Ltd
(C2023/6597)
| COMMISSIONER DURHAM | BRISBANE, 17 MAY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether to extend time – whether employee dismissed – application dismissed.
On 27 October 2023, Mr Rajinder Singh (Mr Singh/the Applicant) made a general protections application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (the Act). Mr Singh alleges that he was dismissed by EGroup Protective Services Group Pty Ltd (the Respondent) on 3 July 2023 in contravention of his workplace rights.
The Respondent opposed the application, by way of raising two jurisdictional objections, that the application was lodged out of time and that Mr Singh was not dismissed.
Section 366(1) of the Fair Work Act 2009 (Cth) (the Act) states that a general protections application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to section 366(2). As Mr Singh lodged his application on 27 October 2023, and the alleged date of the dismissal was 3 July 2023, he was 95 days out of time.
In order for the application to proceed, Mr Singh requires the Commission to grant a further period of time within which to bring his application.
I issued directions on 5 December 2023, for the parties to file their material. The question of whether to grant additional time and whether Mr Singh was dismissed was dealt with at a Determinative Conference/Hearing on 27 February 2024. Mr Singh represented himself and Mr Gary De Jong, the Respondent’s Client Executive, represented the Respondent.
As noted in [4] Mr Singh’s application cannot proceed unless an extension of time is granted. This means that if an extension is not granted the application is dismissed, regardless of any findings in relation to the second jurisdictional objection. However, for completeness, I have decided to address both the out of time aspect and whether Mr Singh was dismissed. The latter will be addressed as a consideration as it relates to the extension of time, in this decision.
Extension of Time
Additional time can be allowed under section 366(2) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
·the reason for the delay;
·any action taken by the person to dispute the dismissal;
·prejudice to the employer (including prejudice caused by the delay);
·the merits of the application; and
·fairness as between the person and other persons in a similar position.
Background and timeline
Mr Singh commenced employment with the Respondent on 30 June 2021 as a Security Officer.[2]
On or around November 2022, Mr Singh states that he was approached by the Respondent’s Queensland Operations Manager regarding a role as a Site-Security Manager at Mid-Town, running the day-to-day security operations.[3] Mr Singh received a letter of offer for the position for commencement of the role on 5 December 2022. The letter noted that he was contracted for 38-hours per week plus an additional 12 hours of overtime, totalling 50 hours per week.[4]
Mr Singh contends that in late 2022, he began raising concerns regarding his hours of work, particularly that with travel time included, he was leaving home at 5.30am and not arriving home until 8:00pm in the evening.[5]
Mr Singh states that in late 2022, he spoke to Mr Adrian Trifilo, Queensland Operations Manager, about his concerns and asked about the Respondents fatigue management policy. Mr Singh alleges that Mr Trifilo responded to this by stating that there was one, “but it gets overridden to meet client needs and that it was a topic to not go to”.[6] Mr Singh states that he took this as a threat to his employment.[7] Mr Singh submits that he was advised by Mr Trifilo that he was required to work the contractual hours required of the business being 7:00am to 7:00pm five days a week which included 10-hours of non-contractual hours. It is alleged that the Respondent stated in this meeting that the Mid-Town role is based on a 60-hour week.[8]
Along with making enquiries regarding various allowances and entitlements, Mr Singh continued to raise his concerns with his hours and alleges that the Respondent suggested that he use his own annual and sick leave entitlements to combat his fatigue.[9] In its response, the Respondent contends that they offered to reduce Mr Singh’s working hours when he raised concerns, noting his earnings would reduce proportionately.[10]
On 8 February 2023, Mr Singh received a replacement to his existing contract. This new contract included 22 hours of overtime, on top of his base 38-hours.[11] The Operations Manager said he had discovered an error in Mr Singh’s contract in which the dollar value was correct but the hours ‘had a typo’ and that subsequent to being advised in writing, Mr Singh acknowledge the salary was for a 60-hour week.[12] Mr Singh, however, submits that this is untrue, and that the new contract was in response to the various enquiries he was making as to why certain allowances had not been paid under the Security Services Industry Award, dating back from 2021.[13]
In late February or early March 2023, Mr Singh was paid $2,288.02 in back-dated allowances.[14] Mr Singh submits that he began to sense the Respondent’s frustration towards him for enquiring about unpaid allowances and continuing to raise the unreasonable number of hours he was working each week.[15] Further, he asserts that he was being excluded from meetings which the Respondent held with their client (a third party), even though he was managing the day-to-day operations and actioning procedures for the team onsite on behalf of the Respondent’s client.[16] The Respondent contests however that Mr Singh’s role would not require him to be present in client meetings unless it was requested by the client for him to be present.[17]
On 8 June 2023, Mr Singh’s legal representative, Mr Saines sent two letters to Mr Ken Jenkins, the General Manager of the Respondent. The first letter was in regard to the alleged excessive non-contractual hours. The second letter which went out at the same time, marked “without prejudice” sought to resolve all issues between the parties. In this correspondence, it was suggested that the Respondent would pay Mr Singh $18,000.00 in underpayment of wages, $24,988.82 of ex-gratia payments, $8,329.60 as notice in lieu of service, along with statutory entitlements and wages for work performed up to the date of cessation of employment as well as a statement of service.[18] In return Mr Singh would resign his employment effective from 16 June 2023, releasing both parties from all claims. This offer was open for acceptance until 4:00pm on 14 June 2023.
On 13 June 2023, Mr Jenkins replied disputing the calculations and seeking clarity regarding Mr Singh’s intentions with respect to his ongoing employment with the Respondent.[19]
On 22 June 2023, Mr De Jong, called Mr Singh while he was at work and briefly mentioned that their client wanted to make some changes to the staffing roster at Mid-town.[20] Mr Singh states that during this call Mr De Jong asked him if he was resigning from his position, which Mr Singh replied “I would not be discussing that with him over a telephone call.”[21]
On that same day Mr De Jong sent Mr Singh a seven-days’ notice of change of roster (the Notice of Change), per the Respondent’s client’s request, which included a letter of offer, scheduled to commence on 3 July 2023.[22] Mr Singh submits that the new letter of offer indicated a demotion from Security Manager to a grade 4 Officer and a large reduction in salary however during the hearing the Respondent advised that the reduction in contracted hours was due to Mr Singh’s request for reduced hours, further that the role of Security Manager was grade 4 under the Security Industry Award.[23] Mr Singh submits that the Notice of Change was the notification of his dismissal, with the dismissal subsequently taking effect on 3 July 2023.
On 23 June 2023, Mr Saines emailed Mr Jenkins raising concerns regarding the Notice of Change and the new contract, advising of their intention to lodge a general protection (not involving dismissal) application.[24] At some point after this date, Mr Singh decided to no longer retain Mr Saines services as his legal representative.
On 26 June 2023, Mr Singh sent an email directly to Mr De Jong, in which he again alleges adverse action, but states he has been left no choice other than to resign.[25]
On 28 June 2023, the Respondent wrote to Mr Singh acknowledging and accepting his resignation, confirming that it will come into effect on 2 July 2023 and seeking that Mr Singh advise by 29 June 2023 regarding final settlement of all matters between the parties.[26]
On the same day, Mr Singh emailed the Respondent with the following:[27]
“In response to your correspondence dated June 28 and where you have mentioned acceptance of my resignation effective Sunday July 2 2023.
In regards to my employment: I was issued a 'Seven Day Notice of Change of Roster' dated June 22nd without seeking prior agreement or consultation with me. Also, in the correspondence I was informed the role for a Site-Supervisor/ Manager was no longer a requirement and you provided me a seven-day notice of a change in my roster.
I am legally entitled to redundancy severance pay because I was forcibly made to resign from my position and therefore is seen as a dismissal. My contract was terminated and scheduled to cease on Sunday July 2nd superseded by a new set of terms and conditions which included: less hours, a significant reduction in my salary and a role with a different set of duties.
Based upon I have two years continuous employment and less than 3, I am eligible for six (6) weeks redundancy money in accordance with the Fair Work Ombudsman. This payment will be an additional payment to that of my accrued annual leave entitlements; that must be based (sic) the new pay increase taking effect July 1st.
In regards to the finality of any future claim regarding monetary discrepancies around my employment with EGroup; which is a separate matter from workplace entitlements. However, I would be willing to negotiate a settlement amount in lieu of me pursuing an application for a General Protections Claim in the Fair Work Commission/ Court.
I am requesting EGroup provide me with a Statement of Service for the last two years it would be appreciated.
On a final note, all payments of monies are to be paid directly into my bank account which you have on file and not to our Employment Lawyer.”
Mr Singh’s last day of work was 30 June 2023. Upon the termination of his employment, Mr Singh received a payment of $11,533.30 along with his other entitlements .[28] Whilst not addressed by either party, it is likely that this amount was the equivalent of 6 weeks redundancy pay, as requested by Mr Singh in his 28 June 2023 correspondence. The Respondent however maintains that Mr Singh was not made redundant, but that this payment was made as an ex-gratia payment, to resolve all matters between them.
Mr Singh submits he subsequently spent the remainder of July preparing for his application with the Queensland Industrial Relations Commission (QIRC), which was filed on 26 September 2023.[29] Mr Singh does not go into detail as to why it took him over two months to lodge his application but said in his evidence that he was also busy looking for new employment.
On 20 October 2023, a conciliation conference was held between the parties with the QIRC. During this conference, Mr Singh was made aware that the QIRC was unable to deal with his matter as he was a national system employee within the jurisdiction of the Commission.[30] Mr Singh was subsequently advised by the QIRC to lodge an application at the Commission as soon as possible noting the 21-day deadline.[31]
Relevant Factors
Reason for the Delay
The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an “acceptable” or “reasonable explanation” of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[32]
In his oral evidence, Mr Singh identified a number of reasons for the delay in lodging his application:
· After the employment relationship ended, he states that he was busy looking for work, (as it took him three months to secure new employment) and that he was concerned that he may not receive a reference if he lodged an application.
· He was dealing with depression and other personal matters.
· He was not aware that he had to lodge an application with the Commission until he was advised by the QIRC on 20 October 2023.
With respect to the first reason, I note that Mr Singh has provided no evidence to support this contention other than a general assertion. Noting it has previously been found that focusing on obtaining new employment did not amount to exceptional circumstances, in The Applicant v Origin Energy Ltd, which considered similar issues as those raised by Mr Singh, it was found that:[33]
“There is nothing out of the ordinary in the applicant finding his dismissal stressful, either financially or psychologically.
…
Nor do I find his fears about any potential damage to his employment prospects from lodging an application prior to obtaining a new job a convincing explanation for his delay. To the extent that such an argument could ever be used to explain a delay in making an application (and I am not sure that it could) there was nothing special about the applicant’s situation in this regard.”
I consequently do not accept that Mr Singh was too busy looking for work to the extent that it would have prevented him from lodging his application in time.
Furthermore, Mr Singh’s argument that he was hesitant to lodge an application due to concerns that he would not receive a reference are curious, noting that Mr Singh confirmed during the hearing that he was provided with a statement of service. In any event, his fears about any potential damage to his employment prospects from lodging an application prior to obtaining a new job are not a sufficient reason for a delay as found in The Applicant v Origin Energy Ltd.[34] Mr De Jong stated during the hearing that the statement of service was provided to Mr Singh on 7 July 2023 as that was all that was requested by Mr Singh, this is confirmed by Mr Singh’s emails to the Respondent dated 26 and 28 June 2023 requesting a statement of service but not requesting a reference.[35] Though Mr Singh confirmed it took him three months to find new employment, I do not accept this as a reasonable reason for the delay.
With respect to Mr Singh’s second reason, I acknowledge that Mr Singh may have faced depression and other personal matters at the time, however Mr Singh did not elaborate further as to what these other personal matters were or the extent to which they had impacted him. Put plainly, Mr Singh failed to provide any medical evidence to demonstrate that he was experiencing a level of depression that would have left him incapacitated to the extent that he was unable to lodge his application in time, but able to secure new employment after three months. This reason was previously explored in Gayachandra Kuruppuarachchige v Curry leaf Sri Lanken Restaurant Pty Ltd:[36]
“I am prepared to accept that the applicant’s position following the termination of his employment was difficult. No doubt he suffered financially. I am prepared to accept that the termination had an effect on his mental state. I am not prepared to accept, however, that this condition existed for almost two years following the termination. The applicant gained new employment in mid-2011. In the absence of any compelling medical evidence I do not accept that his mental condition affected his ability to take the necessary action to lodge the application from that time.”
As such, in the absence of any compelling medical evidence, I do not accept that his mental condition affected his ability to the extent that he was unable to lodge the application within the required time.
Finally, in regard to Mr Singh’s third reason, I note that the Commission's website provides a range of resources for potential applicants which includes information on eligibility and clearly explains that an application must be made within 21 days after the dismissal. Such information is easy to access and would have been readily available for Mr Singh to refer to. Further, it is unclear why Mr Singh chose to file an application with the QIRC. During cross examination when asked why he lodged an application with the QIRC instead of the Commission he stated:
“The reason was the lawyer has let me down…
He failed to send the letters correctly…
There was no real advice…”
Mr Singh continued to answer the question stating:
“I did ask my lawyer and I didn’t get sufficient advice.”
Though it may be the case that Mr Singh did not get sound advice, I do note that the last correspondence provided by his legal representative to the Respondent on 23 June 2023 stated:[37]
“Given that EGroup has taken no steps to remedy the concerns raised by our client and they continue to take/threaten adverse action against our client, we are instructed to commence a general protections claim not involving dismissal.” (emphasis added)
I find it hard to reconcile, though not entirely impossible, that Mr Singh’s representatives have not appropriately advised him regarding the general protections application process given his representatives were instructed by Mr Singh to commence such proceedings. Further, that since May 2023 when Mr Singh first engaged Saines Legal, it is difficult to believe that Mr Singh’s legal representatives neglected to explain which jurisdiction a general protection application would be lodged in or that his matter would proceed to the Commission.
Given the unlikelihood that Mr Singh’s legal representative failed to advise him accordingly to such an extent, I do not accept this as a reasonable reason for the delay.
Additionally, with respect to Mr Singh’s email to the Respondent on 28 June 2023, he writes the following:[38]
“However, I would be willing to negotiate a settlement amount in lieu of me pursuing an application for a General Protections Claim in the Fair Work Commission/ Court.” (emphasis added)
Given the direct reference to the potential lodgement of a general protections application in the Commission, it is clear that Mr Singh was well aware of the proper jurisdiction to lodge his application. I note that this is inconsistent with Mr Singh’s oral evidence, as I asked Mr Singh if he was aware that he could make a general protections application at the Commission, to which he said:
“No, I was only aware once I went to the industrial relations and I was told by the Commissioner that this matter has to be heard by Fair Work…
That's, that's the only time I became aware of it.”
In any event, had Mr Singh lodged his application at the Commission instead of the QIRC, on 26 September 2023, he still would have been 64 days out of time.
I therefore consider that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case.
Whether the person first became aware of the dismissal after it had taken effect
Mr Singh indicates in his Form F8 that he became aware of the dismissal on 22 June 2023, by way of the Notice of Change he received from Mr De Jong, with the date of dismissal being 3 July 2023.[39] Given what occurred on that day, it is unclear as to why Mr Singh considers 22 June 2023 as the date of when he was notified of the alleged dismissal, but it is clear that he believes that this was the date he believed to be the impending end of the employment relationship as he was not satisfied with the new roster and letter of offer. Noting the amount of time between when he was notified and the date of the dismissal, Mr Singh had sufficient notice of the alleged dismissal. As such, this consideration weighs against an extension of time in this case.
Action to Dispute the Dismissal
As provided above, it appears that Mr Singh was aware that the end of his employment was imminent, however appears to have done little to dispute the alleged termination. He instructed his legal representatives at the time to send the 23 June 2023 email to the Respondent noting that Mr Singh did not agree to the Notice of Change and letter offer, and that he would commence a general protections claim not involving dismissal which was expected to be filed within the next week.[40] Interestingly, I note that the intended claim for general protections was in relation to no dismissal. Instead of attempting to dispute the Notice of Change and lodge a formal complaint, Mr Singh gave notice of his resignation on 26 June 2023.[41] Furthermore, Mr Singh attempted to negotiate a settlement payment which included a redundancy payout by way of correspondence sent on 27 and 28 June 2023,[42] before lodging an application at the QIRC on 26 September 2023. These facts weigh against an extension of time being granted.
Prejudice to the Employer
There is no evidence of any prejudice to the Respondent, further no objection was raised with respect to an extension prejudicing the Respondent. I have treated this matter as a neutral consideration.
Merits of the Application/Whether the Applicant was Dismissed
The Determinative Conference/Hearing held on 27 February 2024 specifically addressed the question of whether to afford Mr Singh additional time to lodge his application, and the jurisdictional objection raised by the Respondent, that he was not dismissed. As such, the merits of the application more generally were not considered.
The parties do however make submissions regarding whether or not Mr Singh was dismissed. Importantly, in these submissions, Mr Singh concedes that he resigned but argues that he was forced to do so due to the Respondent’s conduct i.e constructive dismissal.[43]
Section 365 of the Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the Act) is defined in section 386(1), which 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.”
Although applied under the previous Act, the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd remains relevant to the consideration of section 386(1) of the Act:
“[21] In this Commission the concept have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
‘Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.’
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment.’ Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted).
The Full Bench in Tavassoli also considered the legal principles pertaining to section 386(1) of the Act. Having examined what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”, the Full Bench stated:[44]
“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
As Mr Singh concedes that he resigned from his position in writing on 26 June 2023,[45] it is clear that his employment was not terminated on the employer’s initiative. Therefore, the question is whether Mr Singh was forced to resign from his employment because of conduct, or a course of conduct, engaged in by his employer, such that he had no effective or real choice but to resign.
It is clear that the “final act” which led to Mr Singh’s resignation was the Notice of Change as indicated in his resignation letter:
“Due to your adverse actions, I am now forced to resign from my position as Site-Security at Mid-Town with effect from Friday June 30. I therefore can confirm Friday June 30 will be my last day of my current contract.”
This could be considered conduct that may have led Mr Singh to resign, however Mr Singh had a real alternative choice of disputing the Notice of Change or making a formal complaint, including engaging in the Respondent’s grievance process but he did not. Had this occurred, the Respondent could have investigated his concerns and engaged in further discussions to find a resolution that did not involve Mr Singh’s resignation.
The assessment of conduct in this matter must be viewed objectively. On balance, I do not consider the Respondent’s conduct to be so egregious that it forced him to resign.
As alluded to above, I now turn to the question of whether Mr Singh had any options available to address his concerns other than resignation.
During the hearing it was established that the Respondent had a grievance policy for Mr Singh to engage in, however it was confirmed that Mr Singh did not avail himself of the option to lodge a formal complaint before resigning. I sought to confirm why Mr Singh did not attempt to utilise the grievance process or lodge a formal complaint, to which he said he did not because “that was what he was told”. It is evident from Mr Singh’s oral evidence that he did not clearly engage the grievance process before resigning.
In the matter of Neil Ashton v Consumer Action Law Centre[2010] FWA 9356 at [59] Commissioner Bissett relevantly observes:
“It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.”
Having considered the above, I find that Mr Singh had alternative options available to him to address his concerns, but that he did not avail himself of these.
Additionally, Mr Singh’s argument of constructive dismissal appears inconsistent with the email he sent to the Respondent on 28 June 2023 in which he sought to be paid redundancy.[46] Mr Singh states in his email sent to the Respondent on 28 June 2023 that he was entitled to redundancy pay as his contracted hours were changed due to the Notice of Change.[47] It is important to note the Respondent’s contention that the Notice of Change and new letter of offer were due to the requirements requested by the Respondent’s clients as well as a response to Mr Singh’s complaints regarding his long hours. The Respondent confirmed during the hearing that the Notice of Change was not a means of making Mr Singh redundant. Further, that the “redundancy payment” was made as an ex-gratia payment in response to Mr Singh’s resignation and to finalise any “monetary discrepancies”. [48] I therefore consider that Mr Singh resigned from his position and that the Respondent’s conduct was not to an extent that Mr Singh had no option other than to resign. Consequently, this finding would substantially affect Mr Singh’s merits if his application were to be provided an extension of time, therefore this would weigh against an extension of time being granted.
Fairness as between the person and other persons in similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.
As there are no exceptional circumstances, no additional time can be allowed for Mr Singh to make his application. This means that Mr Singh is not entitled to apply for a general protections application.
The application is dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
R. Singh for himself
F. Singh for the Applicant (support person)
K. Jenkins for the Respondent
G. De Jong for the Respondent
Hearing details:
2024
Brisbane
27 February
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] P.36 of the DCB.
[3] Ibid P. 16.
[4] Ibid P.111.
[5] Ibid P. 16.
[6] P. 16 of the DCB.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid P. 197 to 198.
[11] Ibid P. 197 to 198 & P.55.
[12] Ibid P. 198.
[13] Ibid P. 16,
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid P.199.
[18] Ibid P.17 & 50.
[19] Ibid P.36 to 37.
[20] Ibid.
[21] Ibid.
[22] Ibid P.197.
[23] Ibid P.199.
[24] Ibid P.45.
[25] Ibid P.24.
[26] Ibid P.27.
[27] Ibid P.28.
[28] Ibid P.81 & P.165.
[29] Ibid.
[30] Ibid,
[31] Ibid.
[32] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[33] [2010] FWA 3181 at [9], [17].
[34] Ibid at [17].
[35] P.24 & P.28 of the DCB.
[36] Gayachandra Kuruppuarachchige v Curry leaf Sri Lanken Restaurant Pty Ltd[2012] FWA 8205 at [13].
[37] P.45 of the DCB.
[38] Ibid P.28.
[39] Ibid P.8 & 17.
[40] Ibid P.45.
[41] Ibid P.24.
[42] Ibid P.41 to 42, and P.28.
[43] Ibid P.131.
[44] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [47].
[45] Ibid P.24.
[46] Ibid P.28.
[47] Ibid.
[48] Ibid P.27.
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