Shobhit Sinha v Care Park Pty Ltd
[2020] FWC 1999
•20 APRIL 2020
| [2020] FWC 1999 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Shobhit Sinha
v
Care Park Pty Ltd
(C2020/173)
COMMISSIONER YILMAZ | MELBOURNE, 20 APRIL 2020 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied
[1] On 9 January 2020, Mr Shohbit Sinha lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Sinha was employed by Care Park Pty Ltd (Care Park) in the position of Finance Manager on 2 July 2018 and he tendered his written resignation via email on 21 November 2019, giving four weeks’ notice. Mr Sinha’s last day of employment was 18 December 2019.
[2] Mr Sinha submits that he was forced to resign because Care Park forced him to fail in his position as he was not afforded support, despite his requests.1 In his outline of submissions, he submits he resigned due to excessive pressure, he was belittled and humiliated.2 Mr Sinha submits his resignation is a constructive dismissal.3
[3] Care Park submits Mr Sinha was not dismissed but had resigned. They dispute Mr Sinha’s allegation of constructive dismissal, and they dispute his allegations concerning breach of the general protections provisions. Care Park does submit that the warnings referred to by Mr Sinha in his materials represented reasonable and proportionate disciplinary action and did not amount to “dismissal” for the purposes of section 386(1)(b) of the Fair Work Act 2009. 4
[4] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged a day late.
Applicant’s submissions
[5] Mr Sinha attached to his Outline of Argument:
• a copy of his resignation that he tendered to his manager (the CFO) via email dated 21 November,
• correspondence relating to 45 minutes docked from his salary on instruction from his manager, and
• his email to his manager that he has no-one to hand over his responsibilities before he proceeded on approved leave of 4 days.
[6] Mr Sinha submits he received two warnings, one relating to a failure to handover his duties, and two, in relation to an alleged rude email that he sent. No material was presented by either party regarding the particulars of alleged rude email. However, Mr Sinha submits he requested from his manager details concerning the rude email, but received no response 5.
[7] In his application, Mr Sinha contends that the actions of Care Park contravened the following sections, however, he failed to provide particulars concerning each of the relevant general protection provisions:
• S.340 protection concerning workplace rights;
• S.344 undue influence or pressure concerning workplace rights, and
• S.351 discrimination.
Respondent’s submissions
[8] Care Park submits that Mr Sinha has not identified any exceptional circumstances, therefore they consider the Commission has no discretion to provide an extension of time.6
[9] Care Park also submits that Mr Sinha raised matters unrelated to the extension of time application, nor did he provide any evidence in support of allegations of bullying, discrimination or the failure to provide a safe environment. Care Park submits that no circumstances warranting an argument of constructive dismissal was identified and consequently Mr Sinha would find it difficult to “clear” 7.
Consideration
[10] On 15 April 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.
[11] General protections applications involving dismissal must be made within 21 days.
[12] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a) The reason for the delay; and
(b) Steps taken to dispute the termination; and
(c) Prejudice to the employer; and
(d) Merits of the application; and
(e) Fairness between the person and other persons in a like position.
[13] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)8 where it was held that:
“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 regular occurrence, even though it can be a on 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
[14] I now turn to Mr Sinha’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
[15] The general protections involving dismissal application was lodged with the Commission on 9 January 2020.
[16] In his Outline of Argument, Mr Sinha submits four reasons his application was lodged out of time. Firstly, he claims he suffered financial and mental stress. Secondly, Mr Sinha submits he was not aware of his employment rights via ‘Fairwork Australia’, thirdly, he submits the reason of the festive season with the family, and fourthly, as this is his first ever claim, he was under the impression that the statutory days for filing was 28 and not 21 days 10.
[17] Mr Sinha provided no evidence to support his submission that he suffered financial and mental stress that prevented his filing of the application within 21 days. The day before the hearing Mr Sinha provided a medical certificate from the Chelsea Heights Medical Centre dated 14 April 2020, which states that he attended the clinic on 30 December 2019.
[18] The medical certificate provides no further details relating to Mr Sinha’s mental capacity that may have impacted his ability to file the application within the statutory period.
[19] Ignorance of the timeframe is not unusual, exceptional, or uncommon as an explanation by applicants. Ignorance of timeframe was considered in Nulty v Blue Star Group Pty Ltd (Nulty) where it was held:
“Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 11
[20] Further, the reason that Christmas fell within the 21-day period is not an unforeseen event, and therefore Mr Sinha’s explanation of the festive season for his family is not a valid reason for the delay. I do not consider the reasons given for the delay weigh in Mr Sinha’s favour.
Steps taken to dispute the termination
[21] Mr Sinha did not challenge Care Park’s acceptance of his resignation. However, his letter of resignation does state his disappointment that his manager did not provide him with support despite her assurance to do so during a discussion some months prior on the matter, which according to the letter of resignation did not eventuate. The letter makes reference to an instance where Mr Sinha was left humiliated, although the details of the event are unclear, and the letter refers to a warning given to him in October while he was on annual leave without any procedural fairness. The letter refers to these instances as the reason for the “constructive dismissal”.
[22] Based on this letter and the additional pieces of correspondence concerning docking of his pay and the circumstances leading to a warning for failure to handover to another person before taking 4 days leave, are evident of Mr Sinha’s displeasure with his working conditions. However, whether these situations were sufficient to support an argument of constructive dismissal is another matter.
[23] Putting aside whether the termination can be characterised as a constructive dismissal, this consideration does not weigh against Mr Sinha’s favour.
Prejudice to the employer
[24] Mr Sinha does not address this consideration with any detail, he simply submits he does not think his application prejudices his employer 12.
[25] Care Park alleges that the application causes disadvantage because their diversion of attention to this application limits their ability to respond to the “current health crisis”. 13
[26] While the employer alleges it is prejudiced by an extension of time, I do not consider its inconvenience in devoting resources to defending their position in a general protection matter is a consideration in their favour. I do not consider this consideration is in the Respondent’s favour.
Merits of the application
[27] Mr Sinha submits his employment was terminated by way of his resignation as he had no other option.
[28] Mr Sinha relies on an argument of constructive dismissal. He failed to present compelling evidence of action by the employer which had the intention of bringing the employment contract to an end and that led to his resignation The email correspondence presented by Mr Sinha relates to isolated incidences which has not sufficiently established that the actions of the employer rendered him with no alternative option. Those isolated incidences are:
• 8 Sept 2019, the CFO requested information on handover arrangements, but Mr Sinha’s response the next day was that he had no-one, therefore he would monitor his emails. It is alleged that Mr Sinha received a warning. No warning was tendered in support of this allegation;
• 18 October 2019, it is alleged by Mr Sinha that his manager in a meeting stated that he is incompetent and that departments will merge, which according to Mr Sinha is a suggestion that his role will be restructured;
• Date unknown, Mr Sinha was issued a warning for a rude email. No warning was presented during proceedings and no further details were provided. Mr Sinha submits he asked for further particulars from his manager but these were never provided by his manager to enable him to respond;
• 3 December 2019, while Mr Sinha was working out his period of notice, he asked his manager why his November wages were docked 45 minutes. His manager replied that he was late and that this was not unfair. Mr Sinha submits he never received a response to his request for his biotime record over the last six months because he says he always covered his hours; and
• Mr Sinha submits he asked for additional resources from his manager a number of times.
[29] Determining a constructive dismissal, requires an objective analysis of the employer’s conduct. Care Park failed to respond to the allegations relating to the events leading to Mr Sinha’s resignation. It submits in general terms that its conduct was reasonable management action and that it did not amount to a repudiation of the contract. However, Care Park also submits it does not propose to provide detailed consideration of the substantive case concerning merit. 14
[30] On the face of the material provided, Mr Sinha did not discharge his onus to prove that his resignation was a constructive dismissal. I note he was dissatisfied in his position and he submits he felt pressure.
[31] While, the merits were not tested, Mr Sinha did not satisfactorily make a case for constructive dismissal and I do not consider his chances of success to be strong. I do not consider this consideration weighs in his favour for an extension of time based on the limited materials presented. However, I do acknowledge that a test of the merit would encompass greater effort and further materials presented by both parties.
Fairness between the person and other persons in a like position
[32] Neither party responded adequately to this consideration. Consequently, I consider this to be a neutral factor in the present matter.
Conclusion
[33] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. The statutory timeframe is there for a reason therefore to grant an extension is a high bar.
[34] While the application was one day late, I have considered the evidence and submissions against each of the considerations set out in s.366(2), and on balance I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Mr S Sinha for himself
Ms L Smith for the Respondent
Hearing details:
Melbourne
15 April 2020
Printed by authority of the Commonwealth Government Printer
<PR718335>
1 Applicant’s email of resignation of employment.
2 Applicant’s Outline of Argument at Q1e.
3 Ibid Q1g, Applicant’s oral submissions at 7 minutes.
4 Respondent’s Outline of Argument at paragraph 3.1.
5 Applicant’s Outline of Argument at Q1h.
6 Respondent’s Outline of Argument at paragraphs 1.2-1.3.
7 Ibid at paragraphs 5.1-5.2.
8 [2011] FWAFB 975.
9 Ibid at [13].
10 Applicant’s Outline of Argument at Q1d.
11 [2011] FWAFB 975 at [14].
12 Applicant’s Outline of Argument at Q1f.
13 Respondent’s Outline of Argument at paragraph 4.
14 Ibid at paragraphs 3 and 5.
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