Sandeep Kapuria v Trajan Scientific Australia Pty Ltd

[2020] FWC 4726

[2020] FWC 4726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandeep Kapuria
v
Trajan Scientific Australia Pty Ltd
(U2020/10992)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 8 SEPTEMBER 2020

Application for an unfair dismissal remedy - extension of time – application dismissed.

[1] This decision concerns an application by Mr Sandeep Kapuria (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] Mr Kapuria’s employment with Trajan Scientific Australia Pty Ltd (Respondent) was terminated with effect from 2 July 2020. The unfair dismissal application was lodged on 12 August 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 23 July 2020. The application was therefore filed 20days outside the 21 day period. Mr Kapuria asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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 nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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.2

[5] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] 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. I now consider these matters in the context of the application.

Reason for the delay

[8] 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. 3

[9] Mr Kapuria cited several matters as reasons for the delay in lodging the application. The first being that his mother passed away in February 2020 and since that time he has feared losing his father who has been in and out of hospital due to a heart condition. Mr Kapuria’s evidence was that since his mother’s funeral his father, who has resided in India since February 2019, and sisters have been unable to travel to Australia due to COVID-19. 4

[10] Mr Kapuria gave evidence that his living arrangements and financial position contributed to his delay in making an application. Mr Kapuria separated from his wife sometime in July 2019 and for the six months prior to August 2020 he had been living with his brother. Although Mr Kapuria has a property it was occupied by tenants and he couldn’t move into that property until 10 August 2020. 5

[11] Mr Kapuria submits that his carer’s responsibilities also contributed to his delay. Mr Kapuria has custody of his children for 2 hours on Friday, Saturday, and Monday evenings and 4 hours on a Sunday morning. He has additional custody hours to care for his oldest child from 6:00pm on a Saturday evening until 1.00pm on Sundays. Mr Kapuria’s evidence was that due to his living arrangements this meant he would often take the children to a nearby shopping centre or sometimes he would “wander around in the car or a park so that there is no disturbances and conflicts at home.” (sic). 6

[12] Mr Kapuria also submits he had a viral infection and had a COVID-19 test. His COVID-19 test result received on 25 June 2020 was negative. Mr Kapuria’s evidence was that he was still coughing and having other viral related issues. 7

[13] Mr Kapuria obtained alternative employment through his networks on Linkedin. Mr Kapuria commenced employment in his new role on or around the 7 July 2020. His evidence is that his hours of work are from 7:00am to 3:30pm. 8

[14] Mr Kapuria submits that those factors combined caused him to feel “stretched beyond limits and had very limited time and mental bandwidth to think rationally on all fronts” 9 and for those reasons he should be granted an extension of time.

[15] Mr Kapuria’s oral evidence is that on the day of his dismissal he met with Ms Helene Lajoie, Global Human Resources Manager. Mr Kapuria’s evidence was that during that meeting he stated he would seek legal advice and was told by Ms Lajoie that he should not go to Fair Work as it would spoil any good will he had with his employer.

[16] The Respondent relies on the evidence of Ms Helene Lajoie, Global Human Resources Manager, in support of its submission that no exceptional circumstances exist and Mr Kapuria’s application should be dismissed.

[17] Ms Lajoie gave evidence that at the time Mr Kapuria’s mother passed away Mr Kapuria took two days of compassionate leave on 4 and 5 February 2020. Mr Kapuria also took single days of annual leave on 10 February 2020 and again on 21 February 2020. Mr Kapuria also took a day of sick leave on 2 March 2020. Ms Lajoie was unsure as to whether the two days of annual leave and the sick leave were taken because of Mr Kapuria’s mother’s death. Mr Kapuria took no other leave from between February 2020 and the termination of his employment on 2 July 2020. 10

[18] Ms Lajoie was not aware that Mr Kapuria had changed address as he had not provided any change of address details to his employer. 11

[19] Ms Lajoie gave evidence that Mr Kapuria had advised her during the meeting that he would seek advice from a lawyer and she encouraged him to do so. 12 Ms Lajoie denies that she had at any time during the meeting advised Mr Kapuria that he should not go to Fair Work.

[20] Ms Lajoie’s evidence was that she was aware that Mr Kapuria had obtained alternative employment soon after his dismissal because she had endorsed his employment with his new employer.

[21] Whilst I empathise with Mr Kapuria’s situation I do not consider Mr Kapuria’s reasons for the delay in making his application, individually or together, to be an acceptable or reasonable explanation for the delay.

[22] Mr Kapuria took minimal time off from his employment at the time of his mother’s death back in February 2020. For the months following his mother’s death particularly the time period relevant to the making of this application Mr Kapuria has been able to continue working, care for his children and make arrangements to move into his property. Those events suggest that Mr Kapuria was not so incapacitated that he could not have made his application within the time period required.

[23] Mr Kapuria submits that I should take into consideration the difficulties he experienced from the combined factors being caring for his children whilst he was living in his brother’s home. It is not uncommon for parents to have shared carers responsibilities. Mr Kapuria had carers responsibilities for restricted number of hours over the weekends and a short 2 hour period on Friday and Monday evenings. Mr Kapuria had the remainder of the time on weekends and weekdays in which he could have made his application.

[24] Whilst I make no findings in relation to Mr Kapuria financial position, I note that Mr Kapuria was without employment for a period of approximately one week. The Respondent submits Mr Kapuria’s termination payment was $77,400.53 gross. 13 There is no evidence before me that supports Mr Kapuria’s submission that his financial circumstances contributed to his delay in making the application. It was at all times open to Mr Kapuria to make an application to have the lodgement fee’s waived if he was in a financial position where he could not afford to pay the application lodgement fee.

[25] Further, whilst I accept that Mr Kapuria may have been ill on or around 25 June 2020, the evidence suggests that Mr Kapuria’s condition did not affect his capacity to attend work with his current employer, nor did it prevent him from caring for his children. Absent any medical evidence detailing the impact the illness had on his capacity to lodge the application, I do not accept his medical condition as an explanation preventing him from lodging the application on time or at a time earlier than the date on which this application was lodged.

[26] It is an unfortunate circumstance that Mr Kapuria has separated from his wife however this did not prevent him from continuing in his employment or obtaining new employment. I do not consider his separation that occurred over a year prior to his dismissal to be unusual, special or uncommon when considered either in isolation or in conjunction with the other matters Mr Kapuria relies on as his reasons for delay.

[27] It is a matter of contention as to whether, or not Ms Lajoie advised Mr Kapuria not to go to “Fair Work”. However, it is not in contention that at the time of his dismissal Mr Kapuria had discussed obtaining legal advice or going to Fair Work. It is evident that Mr Kapuria was at a minimum aware that he could contact the Fair Work Commission regarding his dismissal and chose not to do so for a further 41 days.

[28] Taking into account Mr Kapuria’s ability to care for his children on weekends and obtain and maintain employment since his dismissal there is no evidence before me to support a finding that Mr Kapuria was so incapacitated that he could not make his application within the statutory time frame allowed.

[29] Mr Kapuria has not provided a reasonable or acceptable explanation for the delay in lodging his unfair dismissal application out of time. The absence of an acceptable explanation as to why Mr Kapuria lodged his application out of time weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[30] The Respondent submits that Mr Kapuria’s employment was terminated on grounds of redundancy. 14 It is not in contention that Mr Kapuria attended a meeting on 2 July 2020 at which time he was provided with a letter confirming that his dismissal would take effect that same day. Therefore, Mr Kapuria had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[31] Mr Kapuria gave evidence that he met with the CEO to discuss his termination, however there is no evidence before me that during that meeting he disputed the dismissal.

[32] Mr Kapuria also gave evidence that he advised Ms Lajoie on 2 July 2020 that he intended to seek legal advice. The evidence suggests other than the lodging of this application Mr Kapuria took no further action to dispute his dismissal. This weighs against a finding in favour of Mr Kapuria.

Prejudice to the employer

[33] There are no submissions before me that identified any prejudice that would accrue to the Respondent if an extension of time were to be granted. I consider this to be a neutral factor.

Merits of the application

[34] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials, I have considered the submissions and evidence of the parties, I do not intend to repeat those submission and evidence in full here.

[35] Mr Kapuria submits that his dismissal was not a case of genuine redundancy as his job function still exists and is being performed by two other employees. He submits he was targeted for redundancy because his previous manager and the Human Resources Manager were “against me”. Mr Kapuria submits that the Respondent was using COVID-19 to dismiss employees that they “didn’t like” if they were unable to find fault in their work. 15

[36] Mr Kapuria further submits that during his employment he had been harassed and discriminated against. Mr Kapuria also submits that he was promised the role of Senior Engineer which he declined because the role came with additional duties and a pay rise of “only $200 per month extra pay”. Mr Kapuria amongst other things submits that during his employment he was given no training and minimal pay increases despite his best efforts. 16

[37] The Respondent submits that Mr Kapuria was dismissed on grounds of redundancy due to his job no longer being required to be performed by anyone after the Respondent restructured its quality and project management departments. They submit that following a business review in 2019 and COVID-19 significantly impacting revenue a decision was made to reduce costs. The Respondent initiated voluntary redundancies and 30 casuals were “let go” in addition to the reduction of working hours for a period of months at the Respondents Ringwood site. In addition to Mr Kapuria a further nine positions were made redundant during the months of June and July 2020. 17

[38] Mr Kapuria acknowledges that the Respondent made a number of roles redundant, however he holds the belief that his redundancy payment was calculated on a lesser entitlement than that of some of his colleagues.

[39] Whilst evidence supports a finding that Mr Kapuria was one of a number of employees who were made redundant during the months of June and July 2020 having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[40] Mr Kapuria made no submissions addressing this criterion.

[41] The Respondent submits that a number of employees were made redundant around the same time as Mr Kapuria and those employees only had 21 days to lodge an unfair dismissal application. The Respondent submits that although no other terminations were disputed it would be unfair to grant Mr Kapuria an extension of time in circumstances where others would have been held to the strict 21 day time frame. 18

[42] 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. However, cases of this kind will generally turn on their own facts.

[43] The Respondent submits that a number of employees were made redundant around the same time as Mr Kapuria, but state the terminations were not disputed. There is no evidence or submissions before me that there are any other employees of the Respondent in a similar position. I am not aware of any other cases or persons relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration.

Conclusion

[44] Having considered all of the factors set out in s 394(3), and all of the matters raised by Mr Kapuria, I am not satisfied that the requisite exceptional circumstances exist. There is not exceptional or reasonable explanation for the delay in filing the application. None of the factors in s.394(3) weigh in favour of granting an extension. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[45] Accordingly, the application is dismissed. An order 19 to that effect will accompany this decision.

COMMISSIONER

Appearances:

S. Kapuria on his own behalf.
T. Duthie of Counsel for the Respondent.

Hearing details:

2020.
Melbourne (by Telephone):
September 2.

Printed by authority of the Commonwealth Government Printer

<PR722477>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 4   Exhibit A1, p2 and Exhibit A3, p1

 5   Exhibit A3, p1

 6   Ibid

 7   Ibid, p1-2

 8   Ibid, p2-3

 9   Ibid, p3

 10   Exhibit R2, para 2.5-2.6

 11   Ibid, para 2.7

 12   Ibid, para 3.14

 13   Exhibit R1, para 3.18

 14   Exhibit R1, para 7.1 and Exhibit R2, para 3.13

 15   Exhibit A1, p2 and Exhibit A2

 16   Exhibit A1, p3-4

 17   Exhibit R1, para 7.1-7.6 and Exhibit R2, para 3.17-3.19

 18   Exhibit R1, para 8.1

 19   PR722480