Sukanthan Raveemthiran v The Trustee for the Reddy's Trade and Labour Services Family Trust T/A Reddy's General Services

[2018] FWC 4143

[2018] FWC 4143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sukanthan Raveemthiran
v
The Trustee for The Reddy’s Trade and Labour Services Family Trust T/A Reddy’s General Services
(U2018/4785)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 18 JULY 2018

Application for relief from unfair dismissal - application made outside the time prescribed - whether there are exceptional circumstances - extension of time refused - application dismissed.

[1] On 7 May 2018 Mr Sukanthan Raveemthiran (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Raveemthiran was dismissed by text message on 6 November 2017.

[2] Section 394(2) of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (the Commission) allows under s.394(3). The applicant seeks an extension of time as his application was filed 182 days after his dismissal took effect. The applicant’s former employer, the Trustee for The Reddy’s Trade and Labour Services Family Trust T/A Reddy’s General Services (the respondent), opposes the granting of an extension of time.

[3] I have taken account of all submissions and evidence. A determinative conference was held on 6 July 2018. The applicant appeared for himself and gave evidence, with the assistance of a Tamil interpreter. The respondent was represented by Mr D Sztrajt of HR Legal, with permission pursuant to s.596 of the Act.

Decision

[4] Section 394 of the Act provides:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.

[5] The Commission has to be satisfied that there are exceptional circumstances to allow an extension of time. In Cheyne Leanne Nulty v Blue Star Group Pty Ltd 1 a Full Bench said:

‘[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. 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.’

The reason for the delay

[6] The applicant submitted that he had mental health issues resulting from protections claims as a refugee and the stress of the termination. He said that he was not in a good mental state to file an unfair dismissal claim until May 2018. He provided a number of medical certificates.

[7] They include acertificate from Dr Anita Nesarajah, dated 15 February 2018 and attached to the applicant’s Form F2-Unfair dismissal application. The certificate states that the applicant has been seeing Dr Nesarajah for his mental health issues since 15 November 2017, and that he has been suffering with symptoms of depression, low mood and energy after he felt he was wrongfully terminated at work. The certificate further states that he is currently seeing a psychologist and is taking antidepressants.

[8] The applicant also provided a clinical psychology report from Dr Hemalatha Jayaram, dated 28 February 2018 and attached to the applicant’s Form F2-Unfair dismissal application. The report, among other things, states that the applicant has since November 2017, spiralled into depression and has difficulties with sleep, motivation, focus and concentration and looking forward towards a future.

[9] There are two medical certificates which were attached to the applicant’s submissions as witness statements, both received by the Commission on 22 June 2018. The first is from Dr Jayaram, Clinical Psychologist. The undated statement provides background on the applicant’s mental health, and also states:

‘Mr Sukanthan was clearly depressed requiring anti depressant medication, anxious requiring anxiolytic medication and medication for his sleep. Mr Sukanthan was psychologically unable to think clearly or plan and organise himself. Except for going to his Job Agency and speaking to the Manager at Nissan for verification on his termination. Mr Sukanthan was unwell to even consider anything further. His distress is still evident.’

[10] The second undated statement is from Dr Nesarajah, General Practitioner. The statement provides that the applicant has become more withdrawn, depressed and anxious.

[11] In Olgierd Cherfi v Tabcorp Assets Pty Ltd 2 the Commission said:

‘[76] Having considered all of the matters in section 394(3)(a) - (f), I am satisfied, on balance, that there are exceptional circumstances which justify the granting of an extension of time. This is a matter where a combination of factors led to a situation which, when taken together, can be considered to be “out of the ordinary cause, unusual, special or uncommon”. These factors include Mr Cherfi’s mental state which existed prior to his dismissal and continued on after his dismissal; Mr Cherfi’s family situation which meant that he was primary carer for his daughter and provided support and care for his wife; his wife’s serious and unresolvable medical condition and the professional lapses visited on Mr Cherfi by his lawyer, on whom he should have been able to rely, to take care of his interests in a timely manner. When all of these factors are viewed together, they amount to a situation which meets the definition of ‘exceptional circumstances’ as set out in Nulty.’

[12] The respondent referred to the case of Australian Postal Corporation v Zhang 3 in their outline of submissions and stated:

‘…the Full Bench of the Commission overturned a decision granting an extension for a claim that was 205 days late. The reasons for the delay was the applicant’s post-traumatic stress disorder. In that case, the Full Bench in effect found that the applicant needed to provide “compelling” evidence that she was incapacitated during the entire period between the dismissal and when the application was lodged. As the applicant had not done so, the extension was not upheld.’ 4

[13] The respondent also referred to Shane Lidgard v Rotech Products Pty Ltd 5, in which an application was made 50 days late, where it was concluded:

‘[11] The reasons Mr Lidgard provided for his delay in lodgement related to his mental incapacity, shock, anxiety and depression.

[12] While sympathetic to these circumstances I was not persuaded that Mr Lidgard’s difficulties were out of the ordinary, unusual or uncommon and I considered that he took an unreasonably long period to lodge.’

[14] In Rasim Ruzdic v Hills Airport Shuttle Pty Ltd 6the Commission said:

‘[47] While I sympathise with Mr Ruzdic’s ill health, I do not consider that his symptoms constitute exceptional circumstances that explain his delay in lodging the application. Mr Ruzdic was quite alive to the mistreatment he perceived he had experienced by virtue of HAS classifying him as a contractor for the duration of his employment. Toward the end of July 2017 he was able to conduct online research and make enquiries with the Fair Work Ombudsman about his conditions of employment with HAS. He was also able (with the assistance of Ms Tones and Mr Emir Ruzdic) to collate records from the entirety of his employment with HAS, and calculate alleged underpayments and co-operate in the writing of a letter on 27 July 2017 making a claim upon HAS.

[48] I consider this indicates that although Mr Ruzdic was certainly suffering health conditions, they were not special or unusual so as to prevent him functioning at a level that would have allowed him to also to file an application with the Commission.’

[15] It is not enough to simply have mental health issues which cause distress or limit abilities to some extent. In fact in this case the applicant was able to do a range of things after he was terminated, including arranging for emails to be sent about the dismissal 7, having a meeting, applying for life insurance or income insurance following his termination, and according to one doctor going to a Job Agency8. This suggests that he actually did have the capacity to make an application for unfair dismissal, in the same way that he sent an email, had a meeting, and made an insurance application. It is not to the point that in some other cases, with different circumstances, a mental health issue has led to an extension of time.

[16] When asked about this he did not explain the apparent inconsistency. He gave a different explanation for his failure to lodge an application within time. He said that he ‘did not have the knowledge to approach the Fair Work Commission, but one of my friend he advised me that I can claim insurance’ 9. It is well established that ignorance of the law is not an acceptable reason for delay10, and there is nothing in the circumstances before me that leads to a different conclusion.

[17] I have taken account of all submissions and overall there is no satisfactory reason for the delay. In particular, while the applicant had mental health issues he was able to arrange for emails to be sent, attend a meeting, and arrange insurance. This suggests a capacity to file an unfair dismissal claim by email or some other means, even if there were some limits on his capacities from time to time.

Aware of dismissal

[18] The applicant received a text message terminating his employment and was aware of his termination shortly after that 11.

Disputing the dismissal

[19] The applicant disputed the dismissal by expressing his disappointment, trying to get his concerns investigated, and having a meeting on 15 November 2017 12.

Prejudice to employer

[20] The period the application is out of time is a long one, and the employer submitted that there is prejudice given the difficulties for witnesses in retaining accurate recollections of events, and recollections diminish. It submitted that it would be put at a serious disadvantage without the quality of witness evidence that could be expected of a normal unfair dismissal application made within time. I accept that there is prejudice to the employer.

Merits of application

[21] The merits are neutral in this case, as a number of issues of fact and law may need to be resolved, including the compatibility of a redundancy with a valid reason as defined 13.

Fairness between persons

[22] This is also a neutral consideration on the material before me.

Conclusion

[23] I have had regard to all the submissions and evidence before me and I am not satisfied that there are exceptional circumstances warranting an extension of time. An order dismissing the application is contained in PR609106.

[24] The applicant also alleged that a person, possibly Mr Edwin Rogou, interfered with a witness giving evidence 14. Interfering with witness evidence is an offence under s.676 of the Act, and a civil matter under s.343 of the Act.I will refer this decision and the submissions and evidence to the General Manager for possible reference to the police or prosecutors.

DEPUTY PRESIDENT

Appearances:

Mr S Raveemthiran on his own behalf.

Mr D. Sztrajt appearing for the respondent

Hearing details:

2018.

Melbourne:

July 6.

Printed by authority of the Commonwealth Government Printer

<PR608972>

 1   [2011] FWAFB 975.

 2   [2016] FWC 6726.

 3   [2015] FWCFB 5285.

 4 Exhibit M2 at [18].

 5   [2016] FWC 3366.

 6   [2018] FWC 1094.

 7   Transcript PN40.

 8   Transcript PN43-59.

 9   Transcript PN59.

 10   [2011] FWAFB 975 at [14].

 11   Transcript PN31-32.

 12 Exhibit R1 at [5].

 13 Exhibit M2 at [37-45]; Exhibit R1 at [5].

 14   Transcript PN64-69; Exhibit R3-R4.