Ravindran Lingam v Process Minerals International Pty Ltd

[2024] FWC 1807

[2024] FWC 1807

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ravindran Lingam
v

Process Minerals International Pty Ltd

(U2024/5453)

DEPUTY PRESIDENT BEAUMONT PERTH, 11 JULY 2024

Application for an unfair dismissal remedy – extension of time

1. The issue and outcome

1. On 14 May 2024, Mr Ravindran Lingam (the Applicant) applied for an unfair dismissal remedy after having been dismissed by Process Minerals International Pty Ltd (Respondent) on 22 April 2024. The Respondent objected to the application on the basis it had been filed one-day outside of the statutory period prescribed by s 394(2) of the Act.

1. Section 396 of the Fair Work Act 2009 (Cth) (the Act) provides that the Fair Work Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether an applicant lodged her or his unfair dismissal application with the Commission within the statutory time limit period prescribed by s 394(2) of the Act.

1. The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are considered.

1. For the reasons that follow, I have found that whilst the Applicant’s unfair dismissal application was made one day late, the circumstances were not exceptional and on that basis his application is dismissed. An Order[1] issues concurrently with this decision.

1. Extension of time

1. As the Applicant’s employment ended on 22 April 2024, he was required by s 349(2)(a) of the Act to have made his unfair dismissal application by 13 May 2024.

2. For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. Under s 394(2)(b) of the Act, the Commission has the power 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 in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that 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.[2] It is accepted that 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.[3]

1. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[4]

1. In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[5] 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.[6]

1. The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[7] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[8]

1. In respect of the delay, the Applicant provides several reasons for the late filing of his application. First, the Applicant noted that during the period from his dismissal until he made the application, there was a public holiday. Secondly, the Applicant had purportedly sought information from the Commission, which had not been forthcoming. Thirdly, as a layperson he was unaware of what to do and his application had first been directed to Brisbane.

1. It is accepted that ignorance of the timeframe does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[9] Furthermore, if the final day of the 21-day period falls on a weekend or on a public holiday (where the Commission is closed) the timeframe will be extended until the next business day. Of course, public holidays or weekends that fall during the 21-days will not extend the period of lodgement. It therefore follows that a public holiday falling within the period of the time of dismissal to the lodgement of the application, does not, in these circumstances, provide plausible reason for the delay.

1. In his email to the Chambers of Deputy President Easton, the Applicant wrote:

Prior to application, I also wrote to clarify if the weekends were to be considered, but there was not response from your office. If your office has no courtesy whatsoever to reply to public queries, then I should not be penalized for this 1 day delay!!

1. Whilst the matter proceeded to hearing, the Applicant provided no further detail as to the purported clarification he had sought from the Commission regarding whether weekends were included within the 21-days. Further, he adduced no evidence in support of his contention of having written to the Commission and having not received a response. Notwithstanding, the Commission has provided readily accessible information on its website regarding the lodgement of unfair dismissal applications and the timeframe for lodgement:

If the final day of the 21 day period falls on a weekend or on a public holiday (where the Commission is closed) the timeframe will be extended until the next business day.[5] Public holidays or weekends that fall during the 21 days will not extend the period of lodgement.[10]

1. The Applicant filed his unfair dismissal application on 14 May 2024. This was accompanied by a payment waiver application form and a copy of his termination of employment letter. Insofar as it is made, there is no evidence to support the contention that the Applicant filed his unfair dismissal application prior to this date.

1. I do not accept that the matters relied upon by the Applicant to be an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. Whilst the period of the delay was one day, as was observed in Ozsoy v Monstamac Industries Pty Ltd[11] the fact that an application was lodged only one day late, is not the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.[12]

1. On balance, I find the reason for the delay is not an acceptable one. This weighs against a finding of there being exceptional circumstances. In arriving at this finding, I have considered the relevant period to be the period after the 21-day timeframe for lodging the application,[13] but have, in addition, considered the circumstances from the time of the dismissal.

1. There are several factors that I consider to be neutral, as follows. First, the Applicant took no action to dispute his dismissal apart from filing his application (s 394(3)(c)). Second, there is no prejudice to the Respondent (s 394(3)(d)).

1. Third, in respect of the merits of the application (s 393(3)(e)), I consider this factor neutral. In Telstra Network Technology Group v Kornicki,[14] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[15]

1. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[16]

1. The Applicant contends that he was dismissed in circumstances where he had secured casual employment, presumedly in his periods of R&R. The Applicant had worked as a Relief Camp Manager for the Respondent on a full-time basis (‘8D6R’) at a mine site of Mineral Resources Limited. It was alleged that the Applicant had breached his express duties of his employment contract by assuming the position of Village Manager for a contracting company during his R&R. Further, it is purported that during the investigation into the alleged breach of his express duties, the Applicant made remarks that he was ‘too white for this place’ and ‘Aboriginal people are lazy and don’t like to work’.

1. The merits of the Applicant’s application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted, and the matter proceeded. However, if it were the case that the Applicant made the remarks as alleged, then in my view, his prospects of success on the merits would be negligible. However, based on the materials before me and the evidence given, it is not the case that I can find that the application has no merit.

1. Further, it is not apparent that there are matters relevant to the question of fairness as between the Applicant and other persons (s 394(3)(f)).

1. As to whether the Applicant was notified of his dismissal and the day that it took effect (s 394(3)(b)), there does not appear to be any argument that the Applicant was unaware that he his dismissal took effect on 22 April 2024. I consider this factor neutral in the circumstances.

1. Conclusion

1. The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

1. The Applicant has not provided a satisfactory explanation for the whole of the delay in making his application. The remaining factors I need to consider are neutral. Having considered all submissions and evidence, I am not convinced there are exceptional circumstances such that an extension of time should be granted.

1. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). The application was made outside the time limit imposed by the Act, and therefore is not in accordance with the Act. As noted, the application for unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ravindran Lingam, the Applicant
Michael McGerr for the Respondent

Hearing details:

2024
Perth (by telephone):
8 July.

[1] PR776855.

[2] (2011) 203 IR 1, 5 [13] (Nulty).

[3] Ibid 5 [13].

[4] (2018) 273 IR 156, 165 [38] (emphasis in original).

[5] Ibid [39].

[6] Ibid.

[7] Long v Keolis Downer (2018) 279 IR 361, 371 [40].

[8] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12] (Shaw).

[9] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].

[10] [2014] FWC 479, [30] (Ozsoy).

[12] Ibid.

[13] Long (n 7) 371 [40].

[14] (1997) 140 IR 1.

[15] Ibid 11.

[16] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].

Printed by authority of the Commonwealth Government Printer

<PR776854>