Saarthak Singh v Origin Pty Ltd T/A Origin Services
[2019] FWC 4992
•17 JULY 2019
| [2019] FWC 4992 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Saarthak Singh
v
Origin Pty Ltd T/A Origin Services
(U2019/4777)
COMMISSIONER PLATT | ADELAIDE, 17 JULY 2019 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Summary
[1] Mr Saarthak Singh has lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth)(the Act) in relation to the termination of his employment with Origin Pty Ltd T/A Origin Services (Origin) which his form F2 Unfair Dismissal Application advised took effect on 4 March 2019.
[2] Mr Singh filed his unfair dismissal application in the Fair Work Commission on 28 April 2019. Mr Singh’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“This just my second job in Australia and I was awaiting my Termination letter and other documentations from Origin (sic). I still haven’t received any formal communication from Origin and it has been so long. Hence the delay from the 21 days as I was unsure that I could lodge the complaint without any documentation received from Origin.”
[3] On 27 May 2019, Origin lodged a form F3 Employer Response which indicated that the dismissal occurred on 4 March 2019 and raised a jurisdictional objection on the basis that the application was lodged out of time.
[4] The matter did not proceed to conciliation and was allocated to my Chambers.
[5] On 24 June 2019, my Associate corresponded with Mr Singh and Origin and advised that the extension of time issue would be considered at a telephone Hearing on 8 July 2019. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Singh was directed to provide a statement concerning the extension of time and any documents to be relied upon by 1 July 2019. Origin was invited to file any material in reply by 5 July 2019.
[6] A reminder notice was sent to Mr Singh at 10:00am on 1 July 2019.
[7] No submissions were received from Mr Singh.
[8] A notice of listing for a Non-Compliance with Directions was sent on 1 July 2019 with a Hearing listed at 2:00pm on 2 July 2019.
[9] Mr Singh attended the Hearing on 2 July 2019, Origin was represented by Mr Mentiplay with permission granted pursuant to s.596 of the Act on the basis of complexity and efficiency, without objection from Mr Singh. Origin foreshadowed an application under s.399A to have the matter dismissed. The Applicant advised that he was in a position to file his submissions by 9:00am on 3 July 2019. Directions to that effect were made and Origin was advised that if it wished to pursue the s.399A application it would have to file and serve same.
[10] Mr Singh provided an email containing submissions at 8:53am on 3 July 2019. Origin advised it would not pursue the s.399A application.
[11] Origin filed its submissions on 5 July 2019.
[12] A Hearing was conducted by way of telephone conference on 8 July 2019 at 10:06am. A sound file record of the telephone conference was kept. Mr Singh did not appear despite follow-up telephone calls and emails by my Associate. Ms Louise Russell represented Origin, permission having previously been granted.
[13] Mr Singh’s submissions can be summarised as follows:
• His employment with Origin was his second job in Australia.
• He was waiting for his formal termination letter which was never received.
• Upon being dismissed on 4 March 2019 he asked his Manager for contact details in case he needed to contact him, and was told that Origin would contact him.
• The sudden dismissal without warning led him into a “trauma state of mind”.
• He felt that the decision imposed on him was as a result of peer pressure.
• He had both mental and physical stress that further elevated his blood sugars and blood pressure issues. In this state, Mr Singh could not “think straight” and was emotionally unstable and cut out any social connections and was at home in closed doors.
• The dismissal led him to prioritise seeking alternative work so that he could pay his bills.
• He was unable to cope with the trauma and stress to go out and appeal the dismissal within the 21 day time period.
● Mr Singh did not provide any medical evidence in support of the claim about his medical condition and was not present to allow his submission to be tested.
[14] Origin submitted that:
• The application was filed 32 days late (sic) and that this was not a minor or insignificant delay.
• Mr Singh’s submissions do not reveal exceptional circumstances.
• Mr Singh was aware of the termination on the date it occurred.
• Origin sent a copy of the termination letter by post on the date of the termination.
• Mr Singh worked in Origin’s call centre and his submission that he did not know how to contact Origin is highly unlikely.
• Mr Singh cannot rely on the non-receipt of a termination letter as a basis for exceptional circumstances.1
• Ignorance of the time limit is also not an exceptional circumstance.2
• No information about the duration of the emotional stress response has been provided, nor has any evidence supporting this claim been provided.
• The decision to peruse other employment opportunities is not an exceptional circumstance.
• No other action was taken to contest the dismissal.
• No prejudice was claimed.
• Merit was a neutral consideration.
• Mr Singh was one of a number of employees who were dismissed at or about the same time. Some of those persons lodged s.394 applications. Fairness between others in a similar position is a factor that should weight against Mr Singh.
• Overall Mr Singh’s circumstances were not exceptional and the application should be dismissed.
Applicable Law
[15] Section 394 of the Act relevantly states:
“394 Application for unfair dismissal remedy
....
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
[16] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd3which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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 are seen as exceptional. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Consideration
[17] This Unfair Dismissal Application by Mr Singh was made 34 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[18] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
[19] Mr Singh explains the delay by the non-receipt of a formal communication, the emotional and physical distress at having been dismissed, and his focus on getting alternative employment.
[20] Mr Singh did not provide any medical evidence to support his claim and did not attend the Hearing to allow his evidence to be tested. It is common for employees to suffer shock and trauma as a result of dismissal from employment - Rose v BMD Constructions Pty Ltd4 - however, this of itself is not an exceptional circumstance.
[21] Based on the information before me, I am not satisfied that Mr Singh’s distress was anymore than the shock and trauma normally associated with a dismissal.
[22] The non-receipt of a termination letter is not an exceptional circumstance and is not a satisfactory reason to delay making a claim.
[23] Similarly the pursuit of alternative employment is not an exceptional circumstance or a satisfactory reason to delay making a claim.
[24] Given that Mr Singh has not provided a credible reason for the delay in filing his application from 25 March to 28 April, this factor weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[25] Mr Singh was aware of the dismissal on the date it took effect. This factor weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[26] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.5
[27] Mr Singh took no other action to contest the dismissal.
[28] This factor weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[29] Prejudice to the employer will weigh against granting an extension of time.6 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.7 A long delay gives rise “to a general presumption of prejudice”.8
[30] There is no submission that the granting of an extension of time represents prejudice to the Respondent and thus this factor is a neutral consideration.
The merits of the application
[31] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
[32] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd9 considered this criterion and said (at [41]):
“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 Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
[33] Despite the submissions of Origin, I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor, it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[34] Having considered and weighed each of the factors under s.394 of the Act, I am not satisfied that Mr Singh’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order10 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
No appearance of the Applicant.
Ms Russell (of Counsel) on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
July 3.
Printed by authority of the Commonwealth Government Printer
<PR710434>
1 Andrew Jackson Wood v Delshine Pty Ltd[2019] FWC 3627.
2 Ellikuttige v Moonee Valley Racing Club[2018] FWCFB 4988.
3 [2011] FWAFB 975.
4 [2011] FWA 673.
5 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
8 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
9 [2016] FWCFB 6963.
10 PR710435.
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