Ravinder Singh v Kinetic (Melbourne) Pty Ltd T/A Kinetic Melbourne
[2022] FWC 1822
•12 JULY 2022
| [2022] FWC 1822 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ravinder Singh
v
Kinetic (Melbourne) Pty Ltd T/A Kinetic Melbourne
(U2022/6036)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 12 JULY 2022 |
Application for an unfair dismissal remedy – application made outside 21-day timeframe – circumstances not exceptional.
Mr Ravinder Singh made an application for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 5 June 2022. The respondent, Kinetic (Melbourne) Pty Ltd (Kinetic) objects to the application on the basis that:
(a) Mr Singh resigned from his employment; and
(b) the application for an unfair dismissal remedy was not filed within 21 days after the alleged dismissal took effect.
Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). This decision deals with the issue of whether the Commission should allow Mr Singh a further period of time to lodge his unfair dismissal application pursuant to s 394(3) of the Act.
For the reasons that follow, I am not satisfied that there are exceptional circumstances. The respondent’s jurisdictional objection is upheld and Mr Singh’s application for an unfair dismissal remedy is dismissed.
Background
Until 31 January 2022, Transdev Melbourne Pty Ltd (Transdev) operated part of the public transportation bus network servicing metropolitan Melbourne. Mr Singh worked for Transdev as a full-time bus driver, having commenced employment on 23 November 2015. On 31 January 2022, Kinetic took over the bus network services from Transdev under a contract with the Victorian State Government. The employment of Transdev employees, including Mr Singh, transferred to Kinetic on that date.[1]
Prior to the transfer, on 7 September 2021, Mr Singh returned to India to tend to his pregnant wife who was suffering from pregnancy-related health issues.[2] Mr Singh was to return to work on 27 December 2021[3] but sought an extension to his period of leave for family reasons and on account of the fast spread of COVID-19 in India.
Transdev approved Mr Singh’s period of leave until 30 January 2022.[4] Mr Singh was advised that he would need to contact Kinetic about his leave arrangements beyond this date.[5]
Consistent with this advice, on 14 January 2022 Mr Singh emailed Kinetic advising that he was unsure when he could return to Australia because of the impact of COVID-19 management on international flights.[6]
On 15 January 2022, Ms Amy Rutland, People and Culture Manager for Kinetic emailed Mr Singh. The email advised that Kinetic would honour the leave approved by Transdev and upon the expiration of that period, Mr Singh would be expected to return to work or apply for additional annual leave.[7]
On 16 January 2022, Mr Singh emailed Ms Rutland reiterating that he was having difficulty returning from India due to the effects of COVID-19 and wanted to apply for further annual leave.[8]
On 17 January 2022, Ms Rutland advised Mr Singh that he could make a fresh leave application with Transdev prior to 31 January 2022 and that he should reach out to his driver manager to see if his extended period of leave could be accommodated.[9]
On 24 January 2022, Mr Singh sent a further email to Ms Rutland advising that he had been informed by his driver manager that any leave beyond 30 January 2022 would need to be applied through, and approved by, Kinetic. Mr Singh sought advice as to how he should make a leave application.[10]
On 24 January 2022, Ms Rutland emailed Mr Singh requesting that Mr Singh provide the relevant dates and the type of leave he sought approval to take.[11]
Mr Singh replied on 24 January 2022 requesting unpaid annual leave from 31 January 2022 to 30 March 2022.[12]
On 26 January 2022, Mr Singh emailed Ms Rutland advising that it appeared on the “kiosk” that he was working on 31 January 2022. Mr Singh expressed concern because he would still be in India.[13]
On 27 January 2022, Ms Rutland emailed Mr Singh advising that Kinetic would honour any pre-approved leave, but that she was not in a position to advise on the request for further leave until 31 January 2022 when Kinetic assumed bus operations. Mr Singh was encouraged to communicate with his depot and advised “if you communicate with your depot and they are in a position to approved [sic] your request for unpaid leave then Kinetic will honour this.”[14]
The same day, Mr Singh sent an email to Mr Michael Penman, Driver Manager for Transdev. Mr Singh sought Mr Penman’s approval for his period of unpaid annual leave until 30 March 2022. Mr Penman replied to Mr Singh’s email, stating “[w]e are not able to approve any further leave” and that Mr Singh’s “absence will be considered and reviewed by Kinetic.”[15]
Mr Singh sent a further email to Mr Penman on 27 January 2022 stating that he would not be able to return to work on 31 January 2022 as he was in India. Mr Singh asked for the available options for him to remain on “the books” without the need to recommence the hiring process.[16]
There is no evidence of any further correspondence being exchanged with Mr Singh after the transfer between Transdev and Kinetic occurred on 31 January 2022, until 3 March 2022. On 3 March 2022, a letter was provided to Mr Singh by Kinetic’s Regional Service Delivery Manager, Mr Moazzam Mohammed. The letter referred to Mr Singh’s unauthorised absence from work, noting that “you were not granted leave nor have you applied for any leave.” It stated that if Mr Singh failed to make contact within seven days it would be concluded that he abandoned his employment.[17]
On 4 March 2022, Mr Singh sent an email to Mr Mohammed in which Mr Singh advised that he had been in contact with Ms Rutland and Mr Penman regarding his situation and why he could not return to work on 31 January 2022. Mr Singh referred to his requests for further leave and set out the difficulties he was having with travelling to Australia and his wife’s health. Relevantly, Mr Singh stated:
“I requested before I [sic] my email that if you can not approve any further unpaid leave then please make me casual and accept my resignation. I respect my job and do not want to get terminated. It is a kind request which will save me going through recruiting process again.”[18]
On 8 March 2022, Mr Mohammed replied to Mr Singh by email, relevantly stating as follows:
“As previously advised, we are unable to extend leave.
At this stage, there is no casual position on offer.
Based on your email below, if you would like me to consider this email as resignation. I can accept and process it accordingly. Please confirm.
If you are resigning, you will reapply and start again as a new employee when you do eventually return.
Generally speaking, If there are no issues in the standard recruitment process, we can support you in getting onboard again.
Please confirm if you are asking to process this email as your resignation?”[19]
On 9 March 2022, Mr Singh replied stating “Yes, I can confirm that I would like to resign. Please accept my request.”[20]
On 10 March 2022, Mr Mohammed replied to Mr Singh, confirming that Mr Singh’s final pay would be processed.[21]
Mr Singh departed India on 23 May 2022 and arrived in Australia on 24 May 2022.[22] He contacted the respondent’s human resources team on 26 May 2022 to request the resumption of his employment.[23] While not in evidence before the Commission, it is evident that the respondent did not accede to Mr Singh’s request.
Mr Singh made his application for an unfair dismissal remedy on 5 June 2022.
Statutory framework
The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[24] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.
Under s 394(3) of the Act, the matters the Commission must take into account in do determine whether exceptional circumstances exist are as follows:
(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.
These matters are considered below.
Consideration
Effective date of alleged dismissal
For the purposes of determining whether to grant Mr Singh an extension of time it is necessary to identify an effective date of the alleged dismissal.
Although Mr Singh’s application for an unfair dismissal remedy specifies that his dismissal took effect on 10 March 2022,[25] Mr Singh’s evidence in respect of the out of time proceedings specifies that he was employed until 9 March 2022.[26] Kinetic’s position is that the cessation of employment was brought about by Mr Singh resigning in writing on 9 March 2022. It is not necessary for a resignation to be accepted before it can take effect, notwithstanding that Mr Singh’s resignation email invited Kinetic to “accept” his request. Expressions such as the tendering and acceptance of a resignation, although commonly used, are mere linguistic courtesies.[27] Having regard to the correspondence from Mr Singh to Kinetic on 9 March 2022, I find that Mr Singh’s employment with the respondent ended with effect on 9 March 2022.
It follows that the 21-day statutory timeframe for filing the application ended at midnight on 30 March 2022. Mr Singh’s application for an unfair dismissal remedy was received by the Commission on 5 June 2022.[28] The application was filed 67 days outside of that timeframe.
Reason for the delay: s 394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or reasonable explanation. 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 of the circumstances must be considered.[29]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application, being the 67 days from 31 March 2022 to 5 June 2022 inclusive.[30] However, the circumstances from the time of the alleged dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[31]
Mr Singh submits that his application was lodged outside the 21-day timeframe because he was in India and had “no or very limited resources to make the application within the time frame.”[32] No other reasons for the delay are advanced by Mr Singh.
Mr Singh supplemented his submissions orally during the Hearing by explaining that his mobile phone was limited to service in India, and he could not afford to use his Australian mobile phone due to roaming charges or other fees. Mr Singh submits that in any case, he was located in a rural area of India and the internet connection was not effective.
Kinetic’s position is that Mr Singh has not given a satisfactory explanation, supported by any evidence, for the delay.[33] Kinetic submits that it is not in dispute that Mr Singh had a mobile phone in India and that he was using that mobile phone to correspond with Kinetic by email over a number of months. It submits that an application can be made to the Commission by telephone or over the internet. It contends that while Mr Singh may have been required to travel to an area where there was service to file his application, he was in any event capable of filing an unfair dismissal application using this device within the statutory timeframe.
Mr Singh was in a difficult position with his wife’s pregnancy complications compelling his travel to India. However, it is apparent from the material that Mr Singh was able to regularly correspond with Kinetic by email to request an extension to his period of leave and access the “kiosk” to review his roster. As these steps required an internet connection, I am satisfied that Mr Singh had sufficient resources available to him to lodge his application for an unfair dismissal remedy within the statutory timeframe, despite the fact that he was located in India until 23 May 2022. In these circumstances, I do not accept Mr Singh’s contention that his limited resources in the period to 23 May 2022 prevented him from lodging the application within time.
Mr Singh returned to Australia on 24 May 2022. Mr Singh has provided no explanation for the delay in lodging his unfair dismissal application in the period between 24 May 2022 and 5 June 2022. While the evidence discloses that Mr Singh took steps on 26 May 2022 to contact Kinetic’s human resources team to request the resumption of his employment,[34] Mr Singh does not explain how this step prevented him from lodging his unfair dismissal application on an earlier date following his return to Australia. Rather, this evidence supports a conclusion that Mr Singh elected to focus his efforts on seeking the resumption of his employment with Kinetic, rather than challenging the cessation of his employment. Accordingly, I am not satisfied that Mr Singh has provided an acceptable reason for the delay in lodging his unfair dismissal application for the period between 24 May 2022 and 5 June 2022.
Having regard to these matters, I do not find that the sole reason advanced by Mr Singh to explain the delay, being his limited resources while in India, prevented him from lodging his application for an unfair dismissal remedy within time. Mr Singh does not point to any other matter that establishes that he was prevented from or seriously impeded in lodging his application within the statutory timeframe.
I therefore find that Mr Singh has not provided a satisfactory explanation for the 67-day delay in lodging his application. This weighs heavily against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)
Kinetic contends that Mr Singh resigned from his employment on 9 March 2022 and there is no relevant dismissal.[35]
Irrespective of whether the cessation of employment constitutes a “dismissal” within the meaning of s 386 of the Act, I am satisfied that Mr Singh was aware from 9 March 2022 that his employment with Kinetic had ceased. It follows that Mr Singh had the benefit of the full period of 21 days to lodge an unfair dismissal application in the Commission. This weighs against the grant of an extension.
Action taken by the person to dispute the dismissal: s 394(3)(c)
Where an applicant takes action to dispute an alleged dismissal, it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[36]
The evidence discloses that Mr Singh did not raise any concerns about the circumstances that led to his resignation from the employment until after he returned to Australia on 24 May 2022. While Mr Singh contacted Kinetic’s human resources team on 26 May 2022,[37] I find that Mr Singh’s focus was on the resumption of employment, consistent with Mr Singh’s email of 27 January 2022 to Mr Penman in which Mr Singh sought to remain on “the books” without the need to recommence a hiring process with Kinetic upon his return to Australia.
I am not satisfied that Mr Singh took any action to dispute the alleged dismissal except by lodging his application for an unfair dismissal remedy. This weighs against the grant of an extension.
Prejudice to the employer: s 394(3)(d)
It is not contended,[38] and nor do I consider that any prejudice to Kinetic would arise if an extension of time were to be granted. However, the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.[39]
I consider this to be a neutral consideration.
Merits of the application: s 394(3)(e)
Mr Singh submits that he was in a very stressful situation in India managing his wife’s pregnancy related health condition against the backdrop of COVID-19. Mr Singh says that he was “shocked and shattered” to receive correspondence from his employer concerning the abandonment of his employment. Mr Singh contends that he felt pressured to resign.[40] Mr Singh further submits that he values his job and has worked in the same position for six years, working six days a week with an excellent record, and he deserves better.[41]
Kinetic’s position is that Mr Singh’s application for an unfair dismissal remedy is devoid of merit. It says Mr Singh resigned from his employment and was not “dismissed” within the meaning of s 386 of the Act. Mr Singh’s resignation, his reasons for resigning, and all discussions he had with Kinetic about this matter, are recorded and in evidence. Kinetic summarises that exchange as follows:
(a) Mr Singh put himself in a position where he was unable to attend for work for an extended period;
(b) Mr Singh was advised by Kinetic that his employment would come to an end if he did not return to work; and
(c) in response, Mr Singh advised that it was his duty to remain with his wife in India, he did not want his employment to be terminated, and requested that his resignation be accepted.
The Commission should not embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[42] However, having regard to the evidence before the Commission, it is apparent that Mr Singh’s application is not without its difficulties.
Before the substantive elements of Mr Singh’s application can be considered there is a preliminary jurisdictional issue with respect to whether Mr Singh’s resignation was forced by conduct or a course of conduct on the part of Kinetic, such that it constitutes a dismissal within the meaning of s 386(1)(b) of the Act. In assessing this matter, it is not the subjective intentions or understandings of the parties that is relevant. Rather, the evidence will need to be assessed by reference to what a reasonable person in the position of Mr Singh and Kinetic understood was the objective position, based on what each party has said or done in light of the surrounding circumstances.[43] It is the conduct of the employer that is the essential element.[44]
The email correspondence reveals that Kinetic advised Mr Singh that it could not further extend his period of leave and could not offer him a casual position. Mr Singh’s response was to tender his resignation in lieu of the respondent terminating his employment. Mr Singh submits that he felt forced into resigning and that Kinetic made him put his work before his family. I observe that the email from Mr Mohammed on 8 March 2022[45] may suggest that Mr Singh’s resignation was conditioned on the understanding that Mr Singh may be able to recommence his employment without significant difficulty following his return to Australia. However, in the absence of testing the parties’ respective positions, I am not in a position to form a view as to the bearing this may have on the question of whether there has been a “dismissal” within the meaning of the Act.
Further, there is limited material before the Commission in relation to the merits of the substantive application. Kinetic submits that, in any event, there was a valid reason for Mr Singh’s dismissal: Mr Singh advised Kinetic that he did not intend to return to Australia as directed but rather would stay in India with his wife and was therefore unable to attend for work. Kinetic says that this may have been a reasonable decision for Mr Singh to make, but any dismissal would nevertheless have been “fair.”[46] This proceeding does not enable a fulsome examination of these matters. In the absence of evidence from the parties, it is not possible to make any firm or detailed assessment of this contention.
Accordingly, the merits of the application is a neutral factor in my consideration.
Fairness as between Mr Singh and other persons in a similar position: s 394(3)(f)
Mr Singh contends that other employees of Kinetic in a similar position were treated differently. Firstly, Mr Singh submits that some of his co-workers visited India in 2021 for seven or eight months and were able to return to work. Secondly, Mr Singh submits that some of his co-workers have been absent on maternity leave and have re-joined the workplace without any issues.[47]
Notwithstanding Mr Singh’s contention as to other employees visiting India for extended periods last year, there is no evidence before the Commission explaining the particular circumstances of the other employees and the extent to which those circumstances bear any similarity to the position of Mr Singh. Further, I note that such arrangements in 2021 would necessarily have been made with Transdev and not Kinetic.
Mr Singh’s circumstances in being denied a further period of extended unpaid leave are not comparable to employees accessing a statutory right to a period of unpaid parental leave. Accordingly, I do not consider this matter to be relevant to the question of fairness as it relates to Mr Singh.
In the circumstances, I consider this to be a neutral consideration.
Are there exceptional circumstances?
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time. There is a significant delay in filing the application of 67 days and no evidence that Mr Singh turned his mind to challenging the alleged dismissal at any time prior to lodging his application for an unfair dismissal remedy.
Disposition
As I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together, there is no basis for me to extend time.
Mr Singh’s application for an unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr R Singh on behalf of himself
Mr B Popple on behalf of the respondent
Hearing details:
1 July 2022, by Microsoft Teams
[1] Court Book (CB) 39 at [4]-[5]
[2] CB 5; 20-26
[3] CB 29
[4] CB 11; 39 at [6]; 46
[5] CB 11
[6] CB 15; 46
[7] CB 16; 46
[8] CB 46
[9] CB 17; 45-46
[10] CB18; 45
[11] Ibid
[12] Ibid
[13] CB 44
[14] CB 19; 44
[15] CB 44
[16] CB 43
[17] CB 13; 41
[18] CB 43
[19] Ibid
[20] CB 42
[21] Ibid; see also CB 28
[22] CB 27
[23] CB 12
[24] [2011] 203 IR 1
[25] CB 5
[26] CB 10; 11
[27] Marks v The Commonwealth [1964] HCA 45; 111 CLR 549 at [10]
[28] Notwithstanding that the Form F2 application for an unfair dismissal remedy is dated 6 June 2022
[29] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[30] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]
[31] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]
[32] CB 10
[33] CB 36 at [4]
[34] CB 12
[35] CB 36 at [5]
[36] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
[37] CB 12
[38] CB 37 at [7]
[39] C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38]
[40] CB 6; 11
[41] CB 7
[42] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T2421 at [14]
[43] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[44] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]
[45] CB 43
[46] CB 37 at [8]-[13]
[47] CB 11
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