Sidharth Bakshi v Aldi Stores (A Limited Partnership) T/A Aldi Stores

[2018] FWC 742

[2018] FWC 742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sidharth Bakshi
v
ALDI Stores (A Limited Partnership) T/A ALDI Stores
(U2017/12670)

COMMISSIONER BISSETT DARWIN, 6 FEBRUARY 2018

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

[1] Mr Sidharth (Zike) Bakshi was employed by ALDI Stores (A Limited Partnership) T/A ALDI stores (ALDI). His employment was terminated with effect from 3 November 2017. Mr Bakshi made his application for relief from unfair dismissal on 28 November 2017.

[2] Section 394 of the Fair Work Act 2009 (FW Act) requires that an application for relief from unfair dismissal be made with 21 days of the day the dismissal took effect. Ms Bakshi’s application was made 25 days after the dismissal took effect and is therefore four days late.

[3] The Fair Work Commission (Commission) has the power to extend the time within which an application is made if exceptional circumstances exist. Section 394(3) of the FW Act states:

(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.

Approach of the Commission

[4] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench of Fair Work Australia found:

[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…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.

[5] In Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations 2 the Full Bench of the Commission said that the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.

[6] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 3

[7] This point was emphasised by the Full Bench of the Commission in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 4which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank 5(Shaw and ANZ), at paragraph [12] the majority decision states:

“[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …”

[30] This extract must be read in its entirety. The decision goes on to state:

“[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ 6the correct approach.”

[8] In deciding if exceptional circumstances exist I have considered each of the matters identified in s.394(3) of the FW Act.

Submissions and evidence

Reason for the delay

[9] Mr Bakshi said that he was shocked and emotionally stressed at losing his job. He discussed his dismissal with family members at the time and was seeking legal advice. He said it was not until he spoke to Mr Bryon Espedido, his physiotherapist, who provided him with a note on 15 November 2017 about his interaction with ALDI on 2 October 2017 that he thought he might have an unfair dismissal claim and decided to make such an application. Until this time he says he had no intention of making a claim for unfair dismissal but once he got the note from his physiotherapist he decided to make an application.

[10] Mr Bakshi said that following receipt of the note from Mr Espedido he accessed the unfair dismissal application form, around 22 November 2017 however he misread the form and thought that he had 21 business days to make his application to the Commission. He also indicated that he hardly read the form.

[11] ALDI said that Mr Bakshi provided no valid reason for the delay but then he indicated he was aware of his right to make a claim but had not intended to do so.

When the person first became aware of dismissal

[12] Mr Bakshi agreed that he became aware of his dismissal on 3 November 2017 when he met with Ms Liesa Rath, Area Manager for ALDI.

Action taken to dispute the dismissal

[13] Mr Bakshi’s employment was terminated for providing misleading and deceptive advice. At the meeting at which he was advised that his employment was terminated Mr Bakshi questioned the basis on which he could mislead a medical report and MRI results.

Prejudice to the employer

[14] Mr Bakshi says that there is no prejudice to ALDI as the delay is only “three” days.

[15] ALDI says that it will be prejudiced as to the time and disturbance to relevant senior managers in having to deal with the matter, as to the costs to the organisation in defending its actions and as to the message the acceptance of a late application may send to other employees.

Merits of the case

[16] Mr Bakshi’s employment was terminated because he dishonestly and fraudulently misrepresented to ALDI that he was incapacitated for work during the period 1-8 October 2017 when video surveillance indicated his apparent ability to undertake physical activity. Further, he misrepresented to his treating medical practitioner that he was significantly impaired when video evidence suggested this was not the case. In this conduct he breached the code of conduct, his duty of trust and fidelity and his contract of employment.

[17] Mr Bakshi said that he had advised Mr Espedido of his symptoms and that Mr Espedido had issued a certificate of capacity stating that he was totally incapacitated for work for the week of 2-8 October 2017. Mr Bakshi said that he was not totally incapacitated but that Mr Espedido said that he needed a full week off work.

[18] Mr Bakshi then proceeded on pre-approved annual leave for two weeks from 9–23 October 2017.

[19] Mr Espedido provided a note to Mr Bakshi that set out the physiotherapist’s “record of events pertaining to 2^nd October 2017”. Whilst ALDI objected to the admission of the note I accepted it on the grounds that I would not be making a final determination on the merits of the case in this hearing.

[20] The note indicated that Mr Espedido had spoken to Ms Sarah Quinnell, Injury Manager at ALDI, on 2 October 2017. In that conversation he expressed concern that continuing to work may result in worsening of Mr Bakshi’s condition but he could not put on the certificate that Mr Bakshi was not unfit for any duties but that he felt Mr Bakshi needed to be off work for the week. The note indicates Ms Quinnell said that he should certify Mr Bakshi as unfit for work duties for the week. Mr Espedido then issued a certificate of capacity indicating Mr Bakshi was not fit for work duties from 2-8 October 2017.

[21] ALDI says that on 27 October 2017 Ms Rath rang Mr Bakshi and advised him of the details of allegations of serious misconduct that had been made against him and inviting him to a meeting on 29 October 2017 where he would have an opportunity to respond. Details of the allegations and video surveillance footage relevant to the allegations were couriered to Mr Bakshi’s home that day. Attached to the letter was a schedule of inconsistencies in relation to Mr Bakshi’s reports of capacity for work. The video surveillance showed Mr Bakshi driving his car, lying on the ground under the car and lifting heavy items at the time he was incapacitated for work.

[22] Mr Bakshi requested, and it was agreed, to delay the meeting until 1 November 2017.

[23] Mr Bakshi attended the meeting on 1 November 2017 accompanied by his support person. Following the meeting Ms Rath sought, and was given permission by Mr Bakshi, to contact Mr Espedido. When contacted Mr Espedido’s Practice Manager indicated that Mr Espedido was overseas and not contactable but checked the clinical notes which indicated Mr Bakshi’s condition had been “worse” and “inflamed” on the relevant visit. The Practice Manager said that Mr Espedido would not have issued the certificate of capacity in the form he did if it was not accurate. On this basis ALDI rejected Mr Bakshi’s assertion that Mr Espedido had misrepresented his symptoms and capacity.

[24] The notes of inconsistency also indicated that Ms Qinnell’s account of the conversation she had with Mr Espedido on 2 October 2017 was not as indicated in Mr Espedido’s note.

[25] ALDI said that, on the basis of the evidence, it dismissed Mr Bakshi for serious misconduct. Despite this ALDI made an ex-gratia payment to Mr Bakshi equivalent to four weeks’ pay in lieu of notice and accrued leave in lieu in addition to his statutory entitlements.

Fairness

[26] Mr Bakshi makes no submission on this. ALDI says that there is no unfairness as any other employee who engaged in similar conduct would be treated the same.

Consideration

[27] Mr Bakshi’s explanation for the reason for the delay is wholly unexceptional. By his own evidence he accessed the Commission’s application form and misread the information contained therein. How he could do so is inexplicable. The unfair dismissal form says, on its covering instructions:

Lodge your application, along with any accompanying documents, with the Commission within 21 calendar days after your dismissal took effect…

[bolding in original]

[28] There is nothing on the form to suggest that a person has 21 business days within which to make an application for unfair dismissal. In fact, the contrary is stated in bold. I would note in any event Mr Bakshi’s ignorance that he was required to make his application within 21 days (and not business days) is no excuse for the delay in making the application.

[29] Having found the source of the relevant information the obligation is on an applicant to read and complete the forms as is required to ensure a valid application is made. Mr Bakshi said he did not really read the form.

[30] There is nothing that occurred within the 21 days after Mr Bakshi’s dismissal that might further explain the delay beyond 21 days in making his application. Mr Bakshi said he had no intention of making an application for unfair dismissal and it was not until he got the note from Mr Espedido, which appears to have occurred on or about 15 November 2017, that he decided to pursue the claim. It still took him almost a week to access the form for making such an application and then until 28 November 2017 to make the application.

[31] Delays caused by inactivity and a failure to read the application form correctly weigh heavily against the grant of an extension of time.

[32] Mr Bakshi became aware of his dismissal at the time it took effect being 3 November 2017. He took no other action to dispute his dismissal. These are neutral matters in deciding if an extension of time should be granted.

[33] I am not convinced of any prejudice to ALDI caused by the delay in making the application for unfair dismissal. The delay is minimal, of only four days. The lack of any prejudice weighs in favour of the grant of the extension of time.

[34] In Kyvelos v Champion Socks Pty Limited 7 the Full Bench of the Australian Industrial Relations Commission said:

[14] …It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.

[35] The merits of Mr Bakshi’s case cannot be determined without the receipt of evidence and a thorough assessment of that evidence prior to making appropriate findings of fact. In these circumstances it is not possible to make a determination on the merits of the case. His case is, however, not totally devoid of merit. This weighs slightly in favour of the grant of an extension of time.

[36] I do note that ALDI, on its face, appear to have accorded Mr Bakshi procedural fairness in dealing with the matters leading up to his dismissal and have been fair in the discretionary payments made to him on termination.

Conclusion

[37] I am not satisfied that Mr Bakshi has placed circumstances before me such that I should grant him an extension of time within which to make his application. That he may have been shocked by his dismissal is not an unusual circumstance. Having decided to make an application for relief from unfair dismissal, his delay in doing so goes to no more than inattentiveness on his part. He had the information in front of him as to the time within which the application should be made but ignored it. It is not that other things that somehow limited his capacity to make the application within time or caused the distraction such that I could find exceptional circumstances exist.

[38] While I accept that Mr Bakshi’s claim is not devoid of merit (although I make no finding in this respect) this does not outweigh his failure to take appropriate action to pursue his unfair dismissal application within time.

[39] For these reasons the application for an extension of time is dismissed.

[40] Mr Bakshi’s application for unfair dismissal is therefore made outside the time limits prescribed by the FW Act and is therefore dismissed.

[41] An order 8 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

S. Bakshi on his own behalf.

K. Simpson for ALDI Stores (A Limited Partnership) T/A ALDI Stores.

Hearing Details

2018.

Melbourne (by telephone):

February 2.

 1   [2011] FWAFB 975.

 2   [2014] FWCFB 2288.

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] 197 IR 403.

 4   [2016] FWCFB 349.

 5   [2015] FWCFB 287.

 6 Ibid at [16].

 7   Print T2421.

 8   PR600156.

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