Sanskruti Harsh Gandhi v Guardian Community Early Learning Centres Pty Ltd
[2023] FWC 1678
•19 JULY 2023
| [2023] FWC 1678 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sanskruti Harsh Gandhi
v
Guardian Community Early Learning Centres Pty Ltd
(U2023/5236)
| DEPUTY PRESIDENT BELL | MELBOURNE, 19 JULY 2023 |
Application for an unfair dismissal remedy – extension of time application – unaware of 21-day deadline – medical evidence of stress - circumstances not exceptional – application dismissed.
On 13 June 2023, Ms Gandhi made an application to the Fair Work Commission (the Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (Act). Ms Gandhi alleges she was unfairly dismissed by the respondent, Guardian Community Early Learning Centres Pty Ltd (ABN 83 116 020 887)[1]. The respondent agrees that the Ms Gandhi was dismissed from her employment but denies the dismissal was unfair.
Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the information in Ms Gandhi’s Form F2, she made her unfair dismissal application outside the 21-day timeframe. The Commission must therefore determine in the first instance whether an extension of time should be granted for the making of the application.
On 19 June 2023, I issued directions for the filing of evidence and submissions. In compliance with those directions, Ms Gandhi filed a witness statement on her own behalf. The respondent elected not to file any material. The matter proceeded by way of a determinative conference.
Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are ‘exceptional circumstances’, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Section 394(3)(a) - Reason for the delay
In her ‘Form F2’ application, Ms Gandhi states that the termination of her employment took effect on 18 April 2023, a matter confirmed in her witness statement. The employer’s ‘Form F3’ response specified the same date. I am satisfied that the date the dismissal took effect was 18 April 2023.
In those circumstances, in order to comply with the 21-day period specified by s 394(2)(a), Ms Gandhi ought to have made her application for an unfair dismissal remedy by 9 May 2023. In the circumstances, her application was 35 days late.
The delay is the period commencing immediately after the 21-day period specified in s 394(2)(a) until 13 June 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
In Ms Gandhi’s witness statement, there is a heading that asks “Did you make your unfair dismissal application within 21 days of when the dismissal took effect?" Ms Gandhi’s evidence given in response to that question was:
“No- I was not aware about fairwork commission. I would have done it within 21 days if I knew about it before.”
Ms Gandhi’s Form F2 provides some further detail, albeit aspects of it are not replicated in her evidence. In her Form F2, she states:
“I was in depression and stress due to false allegations on me. Also I was not aware about fair work commission claim. I thought I am not union member so I can not complain about my unfair dismissal. I lost my hope until I got to know about fair work commission unfair dismissal. They have traumatized me for putting false allegations. Please consider my application. It is my last hope. I hope I will get my pride back.”
With reference to her statements about “depression and stress”, I note also that Ms Gandhi appended to her witness statement a letter from her general practitioner. That correspondence recorded various positive observations (not presently relevant) about Ms Gandhi, based on the practitioner’s family consultation history going back to August 2017.
In relation to the termination of Ms Gandhi’s employment, the practitioner’s correspondence recorded the “grief and disbelief” by Ms Gandhi as to her employer’s treatment of her, and notes Ms Gandhi “speaks through tears how she is still in a state of shock as to what has happenned.” The letter then states:
“She has been suffering with what looks like Post Traumatic Stress since her termination.
She has been getting nightmares since that episode with inability to think clearly”
And that:
“Her sleep is disturbed, she is unable to focus, feels her heart racing fast and gets very shaky intermittently.”
The practitioner was not called to give evidence. The letter from the practitioner was dated 27 June 2023. In her oral evidence, Ms Gandhi indicated that she had also seen her practitioner in about early June 2023.
I find that the reasons for the delay by Ms Gandhi in filing her unfair dismissal application were, primarily, the reason stated in her witness statement: she was not aware of the Fair Work Commission and would have made her application within 21 days if she knew about it beforehand.
I have considered Ms Gandhi’s medical evidence and I do not consider it adequately explains the delay, assuming that is its purpose. As to this issue:
· Firstly, much of the material in the letter from her treating practitioner reflects no more that what the practitioner had been told by Ms Gandhi. While I accept Ms Gandhi’s sincerity about such matters, those matters do not adequately explain her delay.
· Secondly, the letter from her treating practitioner does not indicate any inability on Ms Gandhi’s behalf to make an unfair dismissal application, let alone for the period of delay. The highest the evidence goes is to describing symptoms that “look like” post traumatic stress.
· Thirdly, and in support of the conclusions just stated, Ms Gandhi herself says that she “would” have made an unfair dismissal application “if I knew about it before”. That evidence further confirms that Ms Gandhi was not prevented from making her application due to any of the medical circumstances described by her or her practitioner.
I do not consider that Ms Gandhi’s ignorance of, or unawareness about, the statutory timeframes for commencing an unfair dismissal application, or even ignorance about such a right at all, is a factor that points to supporting a conclusion of exceptional circumstances.
While I accept that Ms Gandhi was plainly distressed and upset by the termination of her employment, that does not of itself provide a reason for delay that points to exceptional circumstances.
In short, the reasons for the delay provided are not, in my view, reasons that are supportive of an extension of time being granted.
Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the applicant was notified of the dismissal on the same day that it took effect. Therefore, she had the benefit of the full period of 21 days to lodge the unfair dismissal application.
Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[6]
The applicant’s evidence, which I accept, is that she questioned the basis of the dismissal at the time the termination of her employment was being considered. Otherwise, she has not taken any action to dispute her dismissal apart from lodging her unfair dismissal application.
I do not consider that these factors are supportive of a finding of exceptional circumstances.
Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
In Jovcic v Coopers Brewery Limited [2023] FCA 797, Besanko J stated that “The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.” While his Honour’s observations were made in the context of an application to extend time for appeal (in which exceptional circumstances were not required), I nonetheless consider that they are generally informative for an application to extend time under s 394.
The mere absence of prejudice is not, of itself, a matter supportive of a conclusion that exceptional circumstances exist such that time should be extended. I do not consider that this factor is supportive of a finding of exceptional circumstances.
Section 394(3)(e) - What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a high level.
It is unnecessary to set out the substance of the allegations that led to Ms Gandhi’s dismissal. She disputes them and describes them as “false allegations”. The employer stands by them.
Having considered the nature of the allegations, as described in the parties’ respective material filed with the Commission, I am satisfied that the resolution of the parties’ competing positions would require findings of fact about a specific incident involving more than one witness.
It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[7] and the same applies to s.394(3)(e). For the purpose of this application, I consider that the merits of the claim is a matter to be treated neutrally.
Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position
For the purposes of this criteria, Ms Gandhi’s witness statement referred to the unfairness of false allegations being made and her being given a chance to disprove them. I consider that this submission is more appropriately relevant to the merits of the claim, not fairness between Ms Gandhi and other persons in a similar position. Otherwise, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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.[8] 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.[9]
The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. [10]
Mere ignorance of the statutory time limit is not an exceptional circumstance.[11]
The stress and shock that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[12]
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[13]
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, an applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[14]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[15]
The delay in the present case is 35 days. In the context of a 21 day period for making an unfair dismissal application, thirty-five days is significantly past the statutory timeframe.
The reasons for delay are due to ignorance about the statutory time limit and, possibly, Ms Gandhi’s rights to make an unfair dismissal claim. While her evidence indicates some genuine shock and distress, I am not satisfied that evidence rises to such a level to properly explain such a delay or, indeed, any specific parts of it other than at a general level. I am not satisfied that the reasons for dismissal, on their own or in combination with any other supportive matter establish exceptional circumstances.
As Ms Gandhi had taken no steps to challenge her dismissal beyond the lodgement of her unfair dismissal claim, I do not consider that circumstance assists her application. I acknowledge that there is no prejudice to the employer, a matter which I will treat neutrally. Similarly, the fairness between the applicant and other persons in a similar position and the merits of the application neither add to nor detract from my consideration.
While I acknowledge the genuine challenges that Ms Gandhi has faced as a result of her dismissal, when having regard to all of the matters listed at s.394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[16] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
S. Gandhi on her own behalf
M. Moulton of Mapien for the Respondent
Determinative conference details:
2023.
Melbourne (by video link via Microsoft Teams):
July 19.
[1] The application initially listed the employer as Slk Trading Point Cook Pty Ltd (ABN 94 604 095 374), which was changed with the consent of the parties to the name and ABN of the current respondent.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[12] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[13] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[14] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[15] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[16] PR764117
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