Ravneet Trehan v Bluestar Cold Storage and Logistics

[2020] FWC 4105

[2020] FWC 4105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ravneet Trehan
v
Bluestar Cold Storage and Logistics
(U2020/10002)

COMMISSIONER LEE MELBOURNE, 18 AUGUST 2020

Application for unfair dismissal remedy - application lodged out of time - extension of time granted.

[1] Ms Ravneet Trehan (the Applicant) was employed in the position of Administration Support with Bluestar Cold Storage and Logistics (the Respondent).

[2] The reason given by the Respondent for the decision to terminate the Applicant’s employment was (formatting and errors per original):

“Your previous position as Accounts administration was made redundant due to the introduction of computer software which eliminated the need for manual input. You were then transitioned into the warehousing side of the business to help with daily administration however, the feedback been given has not been positive in regards to

- Skill level in tasks been asked to complete

- Overall performance

- Go get attitude

- Ability to take the job role on and compete tasks in a timely manner etc” 1

[3] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). That application was lodged on 21 July 2020.

Application was filed outside the statutory timeframe

[4] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

[5] It is apparent that the Applicant’s employment was terminated by the Respondent with effect from 4 June 2020.

[6] In the Form F2 – Unfair Dismissal Application, the Applicant asserted that the termination took effect on 18 June 2020. This assumption was made by the Applicant based on the letter of termination, which included the following (formatting and errors per original):

“Your letter of termination is dated today 04.06.2020, your final day of employment with Bluestar Cold Storage will be 14 days of signing this contract 18.06.2020

Management would like you to stay on for the duration of the two weeks, however, if you choose not to, management will happily pay you two weeks of pay in your absence while you find a job that suits your skills” 2

[7] However, during the hearing, the Applicant confirmed that it was the 4 June 2020 that was her last day of employment and that she was paid in lieu of the two-week notice period. 3 Where payment is made in lieu of notice, the dismissal usually takes effect immediately.4 I am satisfied that in this case the dismissal took effect on 4 June 2020.

[8] Based on a termination date taking effect on 4 June 2020, the application for a remedy should have been lodged by no later than 25 June 2020.

[9] The application was therefore lodged outside of the time prescribed. The application was made in effect 26 days after the last date on which it could have been made. The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[10] The matter was listed for a determinative conference on 4 August 2020. The Applicant appeared and gave evidence on her own behalf. Mr Bill Rajab (Director) and Mr Asim Khan (Financial Controller) appeared and gave evidence on behalf of the Respondent.

[11] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[12] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay;

•  whether the Applicant first became aware of the dismissal after the date it took effect;

•  any action taken by the Applicant to dispute the dismissal;

•  prejudice to the Respondent including prejudice caused by the delay;

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[13] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 5

[14] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. 6 I must be satisfied that, taking into account s.394(3) of the Act that there are exceptional circumstances.

[15] I now consider these matters in the context of the Application.

(a) Reason for the delay

[16] The Act does not specify what reason for delay might tell in favour of granting an extension however 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. 7

[17] The Applicant advances a number of reasons for the delay. It is apparent the overriding reason for the delay is the significant mental health issues that the Applicant suffers from. A medical certificate was provided by the Applicant which set out that the Applicant has been suffering from stress, insomnia and anxiety following job loss and ill family members.

[18] In particular, the Applicant’s evidence is that she attempted suicide on 13 June 2020, approximately nine days after her employment was terminated.

[19] The Applicant’s grandmother, with whom the Applicant was very close as she brought up the Applicant as a child, died on 24 June 2020. The Applicant’s grandmother was in her home country of India when she died, and the Applicant was further upset at not being able to visit her prior to her death or travel to attend the funeral. 8 Some weeks later, around mid-July 2020, the Applicant’s father contracted COVID-19 and was hospitalised requiring her attention.9

[20] The Applicant claimed that she lodged an application for unfair dismissal with the Fair Work Ombudsman (FWO) on 1 July 2020. 10 Her evidence was that “Vera” from the FWO advised her on 9 July 2020 that it was not possible to lodge an application unfair dismissal with the FWO.11 The Applicant provided evidence that she had made enquiries with the FWO on 1 July 2020. I am not satisfied that these enquiries amounted to lodging an unfair dismissal application. They were more of the nature of enquiries about claimed unpaid entitlements as well as unfair dismissal. I am not satisfied that the engagement with FWO is an acceptable reason for the delay.

[21] However, the Applicant appeared genuine in her evidence as to the significant nature of her mental health issues. The death of her grandmother, hospitalisation of her father and the suicide attempt are individually significant events that would cause significant disruption to a person. Most certainly, collectively, these events had caused the Applicant to not be in a position for a time to be able to lodge an application. I am satisfied the combination of these significant events endured by the Applicant are an acceptable reason for the delay.

[22] In the circumstances, I am satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs in favour of the Applicant in this case.

(b) Whether the Applicant first became aware of the dismissal after the date it took effect

[23] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 4 June 2020 that her employment would end on 18 June 2020.

[24] However, the Applicant had an option to elect to be paid two weeks of pay in her absence. The Applicant had elected to take this option. As stated earlier, the employment relationship therefore ended on 4 June 2020. I accept the Applicant was confused about the date the termination took effect. However, it is clear she was aware of the dismissal on 4 June 2020.

[25] In the circumstances, that is a matter that weighs against the applicant in this case.

(c) Action taken by the Applicant to dispute his dismissal

[26] Turning next to the question of the action taken by the Applicant to dispute her dismissal, I am not satisfied that the enquiry with the FWO amounted to an attempt to contest the dismissal. No other action was taken to dispute the dismissal. In the circumstances of this matter, this is a neutral consideration.

(d) Prejudice

[27] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.

[28] The Respondent did not file any material, nor a Form F3, in response to the application. The Respondent submitted that there was potential prejudice arising from the fact that the application was made outside the prescribed time. 12 However, this submission is vague and there is no evidence of actual prejudice.

[29] The Applicant did not make any submissions on the question of prejudice.

[30] In the circumstances, this is a matter that is neutral in the instant case.

(e) Merits of the application

[31] As to the merits of the application, In cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

[32] In this matter, the Applicant’s termination letter indicates that her “previous position as Accounts administration was made redundant due to the introduction of computer software which eliminated the need for manual input”. The letter goes on to say (formatting and errors per original):

“You were transitioned into the warehousing side of the business to help with daily administration however, the feedback been given has not been positive in regards to

- Skill level in tasks been asked to complete

- Overall performance

- Go get attitude

- Ability to take the job role on and compete tasks in a timely manner” 13

[33] The Applicant’s evidence was that she was unaware that she had been made redundant and redeployed. She submitted that she contacted the FWO, where she later discovered from her case officer that she was in fact made redundant somewhere in March, and then terminated on 18 June. 14

[34] The Applicant also submitted that when she was transitioned, she “wasn’t even made to do the duties that would even entail a warehouse admin role duties”. That she would only “go do stuff in the freezer, or chiller”. The Applicant gave evidence that “half the time [she] was just sitting in front of the men’s toilet”, and that she was shocked to hear that she lacked skills as she has done a lot for the company. 15

[35] The Applicant’s evidence was that she was not told about her performance concerns. 16 Mr Bilal Rajab for the Respondent said that “Cathy King” would give evidence there was “at least one” discussion with the Applicant about her performance.17 It is not apparent that there was procedural fairness afforded to the Applicant.

[36] It seems to me therefore, that her claim is, on a preliminary assessment basis, not without merit. That is not to suggest that it will succeed, but I am satisfied that there is at least some merit which would give the Applicant a justifiable reason to pursue her unfair dismissal claim.

[37] In the circumstances, that is a matter that weighs in favour of the Applicant.

(f) Fairness between the Applicant and other persons in a similar position

[38] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.

[39] The Applicant referred to a number of decisions as relevant. Other than Nudd v Commonwealth Bank of Australia, 18 these decisions are not particularly relevant. However, to the extent the decision of Deputy President Sams deals with the death of a close relative and the obvious stress and anguish that it had caused, it is relevant, but that matter also involved representative error.19 Overall this factor is neutral in the consideration.

Conclusion

[40] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[41] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[42] As I have indicated, the reason for the delay and the merits consideration weigh in favour of the Applicant. Awareness of when the dismissal took effect weighs against the applicant. All other factors are neutral considerations. Having considered all of the factors I am satisfied there are exceptional circumstances.

[43] When I consider each of the matters set out in s.394(3) of the Act, in the context of the evidence in this case and when I look at those circumstances collectively, I am satisfied that they establish there are exceptional circumstances in this case which warrant the consideration of the exercise of my discretion to extend the period within which the application has been made.

[44] As to whether I should now exercise my discretion, I am satisfied it is appropriate to do so having regard to the particular circumstances in this case. There is no matter of which I am aware weighing against an exercise of the discretion.

[45] I therefore propose to allow a further period within which this application may be made. That further period is extended to 21 July 2020.

COMMISSIONER

Appearances:

Ms R. Trehan on her own behalf

Mr B. Rajab and Mr A. Khan for the Respondent

Hearing details:

2020
Melbourne
4 August

Printed by authority of the Commonwealth Government Printer

<PR721570>

 1   Termination letter dated 4 June 2020.

 2   Termination letter dated 4 June 2020.

 3   PN49 – PN65.

 4   Siagian v Sanel Pty Limited (1994) 122 ALR 333, 355.

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

 6   Ibid.

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 8   PN127.

 9   PN141 – PN150.

 10   PN68 – PN71.

 11   PN98 – PN103.

 12   PN83.

 13   Termination letter dated 4 June 2020.

 14   PN86-PN87.

 15   PN170.

 16   PN135.

 17   PN187.

 18   Nudd v Commonwealth Bank of Australia[2015] FWC 780.

 19 Ibid [11].