Sukant Singh v Light House Holding Trust T/A Monash Meeting Point Cafe
[2017] FWC 5608
•27 OCTOBER 2017
| [2017] FWC 5608 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sukant Singh
v
Light House Holding Trust T/A Monash Meeting Point Cafe
(C2017/5383)
| DEPUTY PRESIDENT GOOLEY | MELBOURNE, 27 OCTOBER 2017 |
Application to deal with contraventions involving dismissal.
Mr Sukant Singh alleged that the termination of his employment by Monash Meeting Point Café was in breach of the general protections provisions of the Fair Work Act 2009 (Cth). Lighthouse Holding Trust trading as Monash Meeting Point denies the allegation.
Mr Singh employment ended on 24 August 2017. He said he was not dismissed. His general protections application lodged on 26 September 2017 was therefore not lodged within 21 days.
Mr Singh had previously lodged a general protections application on 25 August 2017 which was lodged within the time limits prescribed by the Act. On 12 September 2017 Mr Singh discontinued that application.
The Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[1] where the Full Bench said:
“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.”[2] [Endnotes not reproduced]
(a) the reason for the delay;
Mr Singh alleged in his application that he discontinued his earlier application because of threats from his employer. This is a serious allegation. At the hearing he said he received an anonymous phone call but when questioned he accepted that there was no evidence to support his allegation that his employer had threatened him. He said that after discontinuing his earlier application he found out that there had been other complaints so he decided to pursue this claim.
I am not satisfied that Mr Singh has provided a reasonable explanation for the delay. Mr Singh made a decision to discontinue an in time application. That he changed his mind does not provide a reasonable explanation for the delay in lodging his second application. This weighs against a finding that there are exceptional circumstances.
(b) any action taken by the person to dispute the dismissal;
Other than filing the earlier application Mr Singh did not do anything to dispute the dismissal. This weighs against a finding that there are exceptional circumstances.
(d) prejudice to the employer (including prejudice caused by the delay);
Mr Samuel Sukantha, who was Mr Singh’s manager, represented Lighthouse and he submitted that Mr Singh, by his second application, was trying to damage the business and his conduct was having an impact on staff. The business considered that the matter had been resolved and yet they now face a second application.
I accept that Lighthouse will be prejudiced because it will now face litigation in circumstances where it considered the matter to be resolved. However I am not satisfied that this prejudice weights against a finding that there are exceptional circumstances. I consider this criterion to be a neutral consideration.
(e) the merits of the application;
In the matter of Kornicki v Telstra-Network Technology Group[3] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” [4]
For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.”[5]
Mr Singh said he left his employment because he was subjected to abuse. He said this abuse was directed at him by his employer. He said he was racially abused and underpaid.
Mr Sukantha denied Mr Singh was dismissed. He said he left the store after he, the Store Manager, told him off because of his poor work performance. Mr Sukantha said that he is not the owner of the business and he is not a racist. He said Mr Singh was paid above award rates of pay and he was paid out all of his entitlements.
If this matter were to proceed Mr Singh will need to establish that he was dismissed. Only then will Lighthouse be required to establish that the reason for the dismissal did not include Mr Singh’s race. To the extent that Mr Singh complains about being underpaid his right to pursue that claim is independent of this application. He makes no allegation that he was dismissed because he made complaints about being underpaid.
There are factual differences between the parties which are not able to be resolved. I consider the merits of the claim to be neutral consideration.
(e) fairness as between the person and other persons in a similar position.
Mr Singh states that there were other employees who had incidents and they did not complain. It is clear that these people are not in the similar position to Mr Singh. There was no evidence that those employees were dismissed because of their race. I consider that this criterion is a neutral consideration.
Conclusion
I am not satisfied that there are exceptional circumstances. Mr Singh could have proceeded with his in time application but he decided to discontinue it. He then changed his mind. There is nothing exceptional about the situation Mr Singh was in. He has not provided a reasonable explanation for the delay and none of the other criteria weigh in favour of a finding of exceptional circumstances. Therefore Mr Singh’s application is dismissed and an order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
S. Singh on his own behalf.
S. Sukantha for the Respondent.
Hearing details:
2017.
Melbourne, by telephone:
27 October.
[1] [2011] FWAFB 975
[2] Ibid at paragraph [13]
[3] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[4] Ibid
[5] Kyvelos v Champion Socks Pty Ltd, Print T2421 at paragraph [14]
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