Saloni Gupta v The Trustee for Sogal Trust T/A Core Physiotherapy and Pilates Studio Aberfoyle Park

[2016] FWC 1290

[2016] FWC 1290

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Saloni Gupta
v
The Trustee for Sogal Trust T/A Core Physiotherapy and Pilates Studio Aberfoyle Park
(U2016/4014)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 1 MARCH 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Mrs Gupta has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with The Trustee for Sogal Trust T/A Core Physiotherapy and Pilates Studio Aberfoyle Park (Core Physiotherapy). At a telephone conference convened on 1 March 2016 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Mrs Gupta’s application was lodged on 25 January 2016. In her application Mrs Gupta acknowledged that the application was not made within time and requested that the following advice be taken into account in favour of an extension of time:

“My employer (Nickolas Lagos) was also my husbands (Rustam Gandhi) business partner at another Core Physio practice. Their partnership was in the process of splitting up from end of June 15 and this process which was quite long-winded over negotiations of the settlement did not settle until 21st December 2015.

The reason I am applying this late is that I didn’t want this application to affect the settlement of my husband’s business.” 1

[3] On 29 January 2016 my Associate corresponded with both Mrs Gupta and Core Physiotherapy and advised that the extension of time issue would be considered through a telephone conference on 1 March 2016. Substantial information about the extension of time issue was provided to the parties. Mrs Gupta was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 22 February 2016.

[4] The Employer’s Response to the application asserted that Mrs Gupta was not dismissed, but did not return to work after a period of unpaid parental leave. This response objected to an extension of time.

[5] Mrs Gupta provided additional information in support of the application. I have set out below her position in this respect.

“…

A simple chronology of events should provide support for the applicant’s contention that lodgement by 25/1/2016 was due to exceptional circumstances.

1. The applicant contends that she was dismissed effectively in August 2015.

2. Prior to that time, the applicant’s husband (Rustam Gandhi) was already in discussions with the respondent (per Nickolas Lagos) for Rustam to acquire Nick’s 50% share in a company NL & RG Pty Ltd which ran the Core Physio Clarence Gardens practice. Those discussions were taking considerable time and effort for the parties to agree on the specifics of that business transfer. The applicant was therefore in a position where to lodge an unfair dismissal claim at that time would have potentially de-railed the transfer of the respondent’s share in NL & RG Pty Ltd to Rustam.

3. The NL & RG Pty Ltd transfer took a further 4 months and was finally concluded on 21/12/2015 (Attachment 2). The respondent puts forward the argument that this is the date form which any possible extension of time should commence. However as set out below, there were further issues to be considered by the applicant.

4. Following the 21/12/2015 settlement, we (as accountants for Rustam who now owned 100% of NL & RG Pty Ltd) sought ethical clearance from the previous accountants to obtain the records of the company and we received these in January 2016. It was noted at that time that almost all of the company’s statutory register documents had not been duly signed by the original shareholders and directors (Nick Lagos, being the respondent to this application and Rustam Gandhi) when the company was first incorporated some years prior. It was considered appropriate at that time to ensure that all relevant documents that should have originally been signed by Nick Lagos (including the company’s constitution, which is considered to be a critical company document – refer Attachment 3) were duly signed and to hold off on lodging the Fair Work application until all documents had been signed by Nick Lagos. It was considered a possibility that he may refuse to do so (sign the documents) if he had already received a Fair Work notification from the applicant in the meantime and we believed it was very important that the company's initial documents be correctly signed in case of any potential future issues arising between the parties or even with ASIC as overseer of corporations in Australia.

5. Contact was made with Nick Lagos by our office on 19/1/2016 (Attachment 4) which was the first time I was able to do so given that I had been on leave for most of the previous week. He subsequently phoned our office that same day and made a time to attend our office to sign the documents the following day (20/1/2016).

6. In anticipation of 5 above, the applicant signed off the unfair dismissal document on 19/1/2016 and our office mailed off the form the following day (20/1/2016) after Nick Lagos had been in to sign the NL & RG Pty Ltd documents.

We therefore request that in reviewing the above, the fact that this was an unusual set of circumstances that precluded the applicant from lodging her claim until 25/1/2016 be taken into account. Until 20/01/2016 the applicant was simply not in a position to dispute the dismissal due to concerns of potential impacts on her husband’s business operation (including the signing of critical company documents following settlement on the actual business transfer) and without those concerns would have lodged her application within the relevant time limit.

We also do not believe such a delay prejudices the respondent in terms of potential time and cost. All factual matters are still available for review by the Senior Deputy President in due course and a time delay of (what the respondent will argue to be) a few months should not of itself be justification for denying the applicant a fair hearing in respect of all of the facts of this case.”

[6] Mrs Gupta participated in the telephone conference. Her accountant, Mr Robinson sought permission to represent her in this conference. Ms Bisbal sought permission to represent Core Physiotherapy in the matter. Permission was granted in both instances pursuant to s.596(2)(a) and (c) of the FW Act. I note that Mr Lagos, the proprietor of Core Physiotherapy also participated in this conference. A sound file record of this telephone conference was kept. I have set out below my conclusions in relation to this matter which have been reached on the basis of the material provided before me.

[7] Section 394 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.”

[8] I think it most likely that the termination of Mrs Gupta’s employment occurred well before August 2015, but in any event, I have concluded that the application was made substantially outside of the 21 day time limit. Consequently, the application can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 which 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 everyday 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.”

[9] In her application Mrs Gupta asserts that she was dismissed because Core Physiotherapy did not respond to some requests she made in August 2015 for suitable rostered work hours. She provided a copy of email advice she relied upon in this respect. The Core Physiotherapy position is that this request was made in the context that there had been ongoing discussions with Mrs Gupta since March 2015 about return to work arrangements and Mrs Gupta had declined a number of proposed working arrangements. The information before me simply does not establish that Mrs Gupta’s employment came to an end at the initiative of Core Physiotherapy. I am not satisfied that Mrs Gupta has provided any satisfactory explanation which establishes that she was still an employee of Core Physiotherapy after May 2015 at which time her one year period of parental leave concluded. Ms Gupta had accepted employment with other physiotherapy businesses but remained interested in working for Core Physiotherapy if a suitable work opportunity arose. She appears to have acknowledged that various offers for her to undertake what she described as “fill in” work were not secure enough. She indicated that she was looking for Core Physiotherapy to offer her regular part-time employment on days when she could arrange childcare. The information before me clearly indicates that Mrs Gupta was aware that offers of this nature were not made after May 2015. If Mrs Gupta was dissatisfied with the lack of any ongoing employment offer from Core Physiotherapy she could have taken steps to clarify her standing as an employee. I am not satisfied that there was an agreement between Ms Gupta and Core Physiotherapy to effectively place Ms Gupta on indefinite parental leave pending a suitable part-time employment opportunity. Mrs Gupta was engaged under the terms of the Healthcare Professionals and Support Services Award 2010 but did not act to address any concerns under the dispute resolution provisions of that Award. The information before me does not establish that Mrs Gupta was dismissed at the initiative of the employer as distinct from an agreed arrangement. However, even if I accepted, for the purposes of consideration of this application, that she had been dismissed, I am not satisfied that that dismissal took effect in August 2015 but consider it must have occurred soon after May 2015. In that event the very long delay in the lodgement of the application has not been adequately explained. Even if I took the termination of Mrs Gupta’s employment to have taken effect in August 2015, I am not satisfied that Mrs Gupta’s concern that she did not wish to disrupt the negotiations which were occurring between her husband and Mr Lagos over the ownership of another Core Physiotherapy establishment, represents an exceptional circumstance such that it adequately explains this delay. Further, and in any event, the information before me indicates that these negotiations were concluded on 21 December 2015 and yet the application was not then lodged until 25 January 2016. I am not satisfied that any acceptable reason for this delay has been provided. Consequently, Mrs Gupta has not established that exceptional circumstances over the entirety of the time since the highly questionable termination of her employment, explain the delay in the lodgement of the application.

[10] Mrs Gupta’s application and her supporting information, indicates that she considered that her employment had concluded in August 2015. To the extent that I was prepared to accept that Mrs Gupta was dismissed, I have accepted that there would be uncertainty about the date any termination took effect.

[11] Apart from the very late lodgement of this application, I am not satisfied that Mrs Gupta took any action to dispute what she contends was the termination of her employment.

[12] Whilst I consider that an extension of time of this magnitude would most likely prejudice Core Physiotherapy but, because of uncertainty in this respect, I have regarded this as a neutral factor relative to the extension of time issue.

[13] In terms of the merits of the application, the information before me indicates that Mrs Gupta was not dismissed at the initiative of the employer. Accordingly, I do not consider that she is able to pursue the application even if an extension of time was to be granted.

[14] Considerations of fairness relative to other persons in similar positions do not support an extension of time in these circumstances.

[15] Accordingly I have concluded that the material before me does not establish that Mrs Gupta’s circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR577494) giving effect to this decision will be issued.

Appearances (by telephone):

K Robinson for the Applicant.

A Bisbal for the Respondent.

Hearing (Conference) details:

2016.

Adelaide:

March 1.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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