Sukhpal Singh v Yued Aboriginal Corporation
[2024] FWC 1168
•3 MAY 2024
| [2024] FWC 1168 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sukhpal Singh
v
Yued Aboriginal Corporation
(C2024/841)
| COMMISSIONER LIM | PERTH, 3 MAY 2024 |
Application to deal with contraventions involving dismissal – application made out of time – error as to the correct jurisdiction – extension not granted Application to deal with contraventions involving dismissal
Introduction
This decision concerns Mr Sukhpal Singh’s (Applicant) application to the Fair Work Commission (FWC) pursuant to s 365 of the Fair Work Act 2009 (Act).
Yued Aboriginal Corporation (Respondent) employed Mr Singh as a Governance Officer on 4 September 2023 and dismissed him on 26 October 2023. Mr Singh alleges that his dismissal is in contravention of Part 3-1 of the Act.
Mr Singh originally filed an unfair dismissal application in the Western Australian Industrial Relations Commission (WAIRC) on 27 October 2023. Mr Singh subsequently withdrew his WAIRC application on 13 February 2024 and filed his s 365 application in the FWC the same day.
Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, pursuant to ss 366(1)(b), within such further period as the Commission allows under s 366(2). In Mr Singh’s case, the period of 21 days ended at midnight on 16 November 2023. His application is 89 days out of time.
Mr Singh seeks a further period for his application to be made under s 366(2). The Respondent opposes this request. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 366(2)(a)–(e) of the Act.
I conducted a hearing via MS Teams on 26 March 2024. At the hearing, Mr Singh was represented by Mr Ian Latham of counsel, and the Respondent was represented by Mr Tony Power of counsel.
Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.
Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that justify an extension of time.
The detailed reasons for my decision follow.
The evidence
The parties largely agree as to the facts of this matter, though they differ as to the significance to be attributed to various events. Mr Singh and Mr Ben Parsons gave evidence for Mr Singh’s case and Mr Jim Power of Gilbert & Tobin, solicitor for the Respondent, gave evidence for the Respondent. None of the witnesses were cross-examined.
2.1 Events leading up to Singh’s dismissal
The Respondent is an incorporated Indigenous entity created through the South West WA Noongar Settlement between the South West Aboriginal Land and Sea Council (SWALSC) and the WA Government.
Mr Singh commenced his employment with the Respondent as a Governance Officer on 4 September 2023.[1] Between 15 September 2023 and 23 October 2023, Mr Singh and the then CEO for the Respondent had a series of discussions and interactions regarding Mr Singh’s suitability (or lack thereof) for his role and the potential development of a new role for Mr Singh.[2]
Mr Singh says that the CEO’s behaviour was erratic and he had concerns about the certainty of his role. In late October 2023, Mr Singh spoke about his work situation with his friend, Mr Parsons, who is a retired commercial lawyer based in Canberra. Mr Singh also looked at employment law websites on his work computer to research employment law and to understand his potential legal options.[3]
On 23 October 2023 at 5:30pm, Mr Singh sent the following email to MDC Legal, a Perth law firm specialising in employment law:
“Hi Lucy
Thanks for taking my call this afternoon. I’m currently on probation in Yued Aboriginal Corporation in West Perth for a role but management decided early on in the probation that I wasn’t suitable for the role and asked me to continue whilst they planned another role for me to re-apply. However, management has just re-advertised the role I’m on probation for and I’m not keen to apply for the new role so I just wanted to know what my options were going forward. thanks. See attached document
Sukhpal Singh”[4]
On 24 October 2023 at approximately 4:30pm, Mr Singh says that the CEO reprimanded him for using his work computer to access employment law websites and information about employment lawyers. Mr Singh’s further evidence is that the CEO also said that he should have terminated Mr Singh straightaway instead of keeping him on.
On 24 October 2023 at 8:09pm, MDC Legal responded as follows:
“Dear Sukhpal
Thank you for your enquiry below.
I have discussed your matter with a senior solicitor and we are able to assist if you wish to engage our services.
We estimate fees in the vicinity of $2,000 (excluding GST and disbursements) to take instructions, consider all relevant materials and documents and provide preliminary advice on the options available to you following the re-advertisement of your role.
Please note this fee estimate covers our work in considering your instructions and documents, undertaking any relevant research and providing advice as per the scope referred to above. This fee estimate does not include drafting any written claims, applications, correspondence and or responses or attending any meetings with any other party, Should that be required, we will provide further fee estimates for that work.
The fee estimate is an estimate only and not a quotation.
Please let us know if you wish to proceed and we will send you a Client Engagement Agreement.
Kind regards,”[5]
Mr Singh’s evidence is that he decided to not engage MDC Legal after discussing the matter with Mr Parsons, who had offered to assist him. Mr Parson’s evidence of the discussion is that Mr Singh contacted him to say that a Perth-based law firm required him to sign a costs agreement before providing any advice. Due to the likely expenses involved, the risks of litigation and the general inability to recover legal costs even if successful, Mr Parsons told Mr Singh that he believed he could assist him.[6]
On 26 October 2023, the CEO terminated Mr Singh’s employment.[7]
2.2 Lodgement in the WAIRC
On 25 October 2023, Mr Singh called the registry staff at the WAIRC to inquire about the filing of an unfair dismissal application. Mr Singh’s evidence is that this was part of his decision-making process about whether to file an application regarding his anticipated termination in either the WAIRC or FWC. The WAIRC registry staff provided general non-legal advice about filing an application. Mr Singh’s evidence is that he informed the WAIRC registry staff that he was employed under the SWALSC Enterprise Agreement 2022 (2022 Agreement). The SWALSC Agreement 2018 was registered in the state industrial system and so Mr Singh believed the 2022 Agreement was as well.[8]
After Mr Singh’s termination, he was under pressure to get various affairs into order before returning home to Canberra. Mr Singh decided that he needed to file before leaving Perth given perceived difficulties of filing from Canberra and time limits.[9]
Based on Mr Singh’s knowledge of the Respondent’s operations, Mr Singh concluded that the Respondent was not a trading corporation and was thus covered by the state industrial system.[10]
On 27 October 2023, Mr Singh filed an unfair dismissal application with the WAIRC (WAIRC Application). Mr Singh left for Canberra on 3 November 2023.
Following his arrival in Canberra, Mr Singh and Mr Parsons further discussed whether Mr Singh had filed in the correct jurisdiction. Mr Singh’s evidence is that on 13 November 2023, Mr Parsons confirmed that he had filed in the correct jurisdiction.[11] Mr Parson’s evidence is that he supported Mr Singh’s conclusion that the Respondent was unlikely to be a trading corporation and so he had lodged in the correct jurisdiction but indicated that they did not have enough information to be definitive.[12]
On 27 November 2023, the Respondent raised a jurisdictional objection against Mr Singh’s WAIRC Application on the basis the Respondent is not a trading corporation.
After reading the Respondent’s response, at 5:23pm on 27 November 2023, Mr Parsons emailed Mr McKenna of Gilbert & Tobin, who was representing the Respondent. Mr Parson asked Mr McKenna to explain why the Respondent is a trading corporation.[13]
At 6:24pm on 27 November 2023, Mr McKenna replied with, “The conclusion is a matter of law based on the definitions in the legislation. Our client will make submissions at the appropriate time, unless Mr Singh wishes to take some legal advice in the meantime.”[14]
Mr Parsons’ evidence is that he concluded that Mr Singh needed wait to see the Respondent’s material, and that Mr McKenna’s response indicated that they were unlikely to be cooperative. Mr Parson reached the view that it was unnecessary to seek any external legal advice as it would be expensive and unrecoverable in the WAIRC jurisdiction.[15]
Over 28 to 30 November 2023, Mr Power and Mr Parsons exchanged emails where Mr Parsons repeatedly requested a copy of the Respondent’s Services Agreement with the Central Service Corporation (SWALSC) and the Respondent indicated that discovery would be discussed at a later date.[16]
On 1 December 2023, the parties attended a conference convened by a member of the WAIRC. The matter did not resolve. Directions for the programming of the Respondent’s jurisdiction objection were issued.[17]
On 2 December 2023, Mr Parsons wrote to Mr McKenna seeking to engage in informal discovery as per the WAIRC’s directions. Mr Parsons requested:
(a)the Services Agreement between the Central Services Corporation and the Respondent;
(b)copies of all the Respondent’s financial statements (audited where available) for the last three years, or since the Respondent’s incorporation if shorter; and
(c)the most recent draft of the Respondent’s Cultural Advice Policy and confirmation of whether it has been formally adopted.[18]
On 4 December 2023, Mr McKenna responded and indicated that he would need to seek instructions. Further, Mr McKenna wrote that, “…the first point is jurisdiction. While we understand the requests in a+b below, we respectfully suggest they are both misguided and premature. May we suggest that you await YAC’s evidence so that you can understand the point that is being made as that might identify that it is not necessary to request these documents. If you do persist in the request, you will understand that we will require confidentiality undertakings. You will need to assist us as to c. To what point would that be relevant.”[19]
Over 4 December 2023, Mr Parsons and Mr McKenna exchanged further correspondence over the requested documents and whether they were relevant.[20]
On 21 December 2023, the Respondent filed its materials in support of its jurisdictional objection to Mr Singh’s WAIRC Application. It included the:
(a)affidavit of Raymond Dwight De Silva;
(b)Yued Indigenous Land Use Agreement registered 17 October 2018;
(c)Rule Book of Yued Aboriginal Corporation (ICN 9579);
(d)Yued Aboriginal Corporation Annual Report 2023;
(e)Noongar Boodja Trust Deed dated 29 March 2021; and
(f)Agreement to provide CSC Regional Services between SWALSC and Yued Aboriginal Corporation.[21]
These materials were filed by Mr Power of Gilbert & Tobin. Mr Power’s unchallenged evidence is that in preparing the materials for filing he obtained the documents listed in points (b) – (e) from publicly available sources.[22]
Over 22 December 2023 to 22 January 2024, Mr Parsons and Mr Power continued to exchange emails over Mr Parson’s request that the Respondent provide the Respondent’s Cultural Advice Policy.[23] It is sufficient to say that on 15 January 2024, Mr Power informed Mr Parsons that the Respondent disagreed as to the relevance of the Cultural Advice Policy to the jurisdictional objection, and that it would not be provided.[24] The Respondent then stopped replying to Mr Parsons’ emails for the Cultural Advice Policy and Mr Parsons’ questions about the Cultural Advice Policy.
Mr Parsons’ evidence is that he had limited time in January to consider matters due to his school-aged children and family commitments. Further, that his focus was on preparing Mr Singh’s evidence, which was due to be filed by 31 January 2024.[25]
Mr Singh filed his materials in response to the Respondent’s jurisdictional objection between 29 and 31 January 2024. After this, Mr Parsons’ evidence is that he revisited the case law on the WAIRC’s jurisdiction and reached the view that he and Mr Singh may have misunderstood the relevant legal principles.[26]
Mr Singh and Mr Parsons discussed this over 6 to 12 February 2024. They also consulted with Mr Latham of Denman Chambers on 11 and 12 February 2024. They reached the conclusion that while there was still doubt, it was more likely than not that the Respondent was a trading corporation.
On 13 February 2024, Mr Singh discontinued his WAIRC Application and filed this application pursuant to s 365 of the Act.
Should an extension of time be granted?
Under s 366(1) and (2) of the Act, the Commission may allow a further period for an application made under s 365 to be made if the Commission is satisfied that there are exceptional circumstances.
It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[27] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[28]
In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2):
(a)the reason for the delay; and
(b)any action taken by the person to dispute the dismissal; and
(c)prejudice to the employer (including prejudice caused by the delay); and
(d)the merits of the application; and
(e)fairness as between the person and other persons in a similar position.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[29]
I set out my consideration of each matter below.
3.1 Reason for the delay
For Mr Singh’s application to have been made within 21 days after the dismissal took effect, Mr Singh needed to lodge by midnight on 16 November 2023. The delay is the period commencing immediately after that time until 13 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[30]
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.[31]
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.[32]
Mr Singh’s submission is that his application was lodged late because he filed in the wrong jurisdiction (within time). He further submits that this is almost exclusively due to representative error.
In support of his submission, Mr Singh points to the following:
(a)While Mr Singh originally filed in the WAIRC, before 16 November 2023 (being the last date to file in the Fair Work Commission), he sought advice from Mr Parsons as to whether he had filed in the correct jurisdiction.
(b)While the Respondent raised their jurisdictional objection on 27 November 2023, they did not provide details supporting their objection. Mr Parsons wrote to the Respondent multiple times to better understand the basis of the Respondent’s jurisdiction objection but did not receive assistance from the Respondent.
(c)The issue of the correct jurisdiction was factually complex, as highlighted by the 1230 pages of evidence filed by the Respondent in support of their jurisdictional objection in the WAIRC Application.
(d)Mr Parsons only realised that he had been working on a mistaken understanding of the relevant legal principles after concluding that the Respondent was unlikely to engage informally in a meaningful manner on the jurisdictional issue.
Mr Singh submits that the delay was due to representative error, which he did not contribute to. He contends that this should be considered a strong factor in extending the time for him to file his s 365 application.
The Respondent submits that the evidence shows that the delay was not caused by representative error, but because Mr Singh prioritised his personal convenience over the prudent conduct of the matter.
The Respondent points to the following in support of this submission:
(a)Mr Singh made a conscious decision not to obtain legal advice despite seeking information about legal advice prior to his termination; his perception that there was complexity in the matter; and the fact that neither he nor Mr Parsons have experience in employment law.
(b)Mr Singh did not proceed with legal advice after receiving a costs estimate. It can be inferred that Mr Singh deemed it too expensive.
(c)There is no evidence Mr Singh sought estimates from other lawyers or industrial specialists, or that he requested pro bono assistance until meeting with Mr Latham in February 2024, 106 days after filing the WAIRC Application.
The Respondent contends that lack of funds to obtain advice is not an exceptional circumstance. Further, Mr Singh does not claim that he lacks funds. Rather, Mr Singh chose not to expend funds or seek assistance beyond one phone call and an email.
The Respondent makes the following submissions regarding Mr Singh’s WAIRC Application:
(a)Mr Singh’s evidence is that he was under significant pressure to submit an application in relation to his termination as he was moving to Canberra, and it would have been difficult to file an application from there. The WAIRC permits electronic lodgement.
(b)The WAIRC Application was filed just one day after Mr Singh’s termination, which demonstrates that Mr Singh could move quickly when it suited him. Mr Singh had finalised his relocation to Canberra by 1 November 2023 and was in Canberra by 4 November 2023. This left two weeks to consider his options properly.
In response to Mr Singh’s reliance on the reluctance of the Respondent’s solicitors to engage and provide informal discovery, the Respondent submits that it is not appropriate for the Respondent’s solicitors to advise Mr Singh, which is why the Respondent suggested Mr Singh obtain legal advice.
The Respondent submits that the 1230 pages of evidence they filed in support of their jurisdictional objection in the WAIRC Application are six documents. Four of those documents are publicly available and were known to Mr Singh since 5 September 2023. In support of this, the Respondent filed an email dated 5 September 2023 from Courtney Coyle, the Respondent’s Governance Manager, to Mr Singh. That email contained links to the Respondent’s key documents, including the Yued Aboriginal Corporation Rule Book; Cultural Advice Policy; the Noongar Boodja Trust Deed; the Yued Indigenous Land Use Agreement; and the 2022 Agreement.[33]
The Respondent refutes Mr Singh’s and Mr Parsons’ claim that they were unable to review the Respondent’s evidence until after Mr Singh had filed his evidence due to the time of year. The Christmas period is not an exceptional circumstance. Mr Singh had the Respondent’s evidence from 22 December 2023 and his evidence was not due until 31 January 2024. Further, Mr Singh’s responsive evidence in the WAIRC Application was five pages long, which the Respondent says does not support Mr Singh’s contention that the whole of January was required to prepare his evidence.
The Respondent submits that if jurisdictional error is found to be a reason for the delay, then it is Mr Singh’s error, not Mr Parsons’. The Respondent further submits that:
(a)Mr Singh prepared and filed the WAIRC Application himself.
(b)There is no evidence Mr Singh instructed Mr Parsons to search for key documents which were publicly available.
(c)Any inference from Mr Singh that the Respondent had a positive obligation to minimise the delay and correct his jurisdictional error is plainly wrong. Mr Parsons’ evidence is that he only meaningfully turned his mind to assessing the jurisdictional error once he had accepted that the Respondent’s solicitors were not going to assist Mr Singh’s case. This is not an exceptional circumstance.
(d)The volume of evidence in the WAIRC Application was not indicative of the factual complexity of the jurisdictional objection.
The Full Bench of the Commission considered representative error in the context of an extension of time application in Robinson v Interstate Transport Pty Ltd,[34] where they stated at [25] that representative error may be a sufficient reason to extend the time for an application. However, a distinction must be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless, and delay caused by the applicant’s conduct; the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for any filing delay.
In considering the uncontested evidence from the parties, I find that Mr Singh’s s 365 application was filed late as he had erroneously filed the WAIRC Application. I am not persuaded that this can be attributed to representative error. Mr Singh had clearly active conduct and management of his case and he is not blameless in the delay. I rely on the following in reaching this finding:
(a)Mr Singh is a former lawyer, though he is currently not practicing. The same goes for Mr Parsons. Neither have practiced in employment law, but they have a better understanding of legal processes and issues than a layperson.
(b)Mr Singh was the one who filed the WAIRC Application after considering the applicable legal principles. Mr Parsons did not assist in the drafting of the WAIRC Application.
(c)From Mr Singh’s evidence, he was clearly alive to the potential that he had filed in the wrong jurisdiction, and even provided relevant case authority to Mr Parsons to consider in their discussions of the WAIRC Application.[35] Tellingly, Mr Parsons’ evidence is that he “supported [Mr Singh’s] conclusion that [the Respondent] was unlikely to be a trading corporation”.[36]
(d)Mr Singh’s evidence is that he was also clearly alive to the fact that deadlines applied to a dismissal-related application in both the WAIRC and FWC.[37]
(e)Mr Parsons’ evidence paints the picture not of a representative being instructed by a client and advising a client, but of a friend assisting another. Mr Parsons’ evidence around the conduct of the case denotes collective decision-making. In particular, I refer to Mr Parsons’ evidence where he and Mr Singh had extensive discussions and joint decision-making between 6 and 12 February regarding Mr Parsons’ review of legal authorities on the WAIRC’s jurisdiction. Mr Parsons’ refers to the review of the evidence in a collective sense and refers to “Mr Singh and I conclud[ing]” that it was more likely than not that the Respondent was a trading corporation.[38]
(f)Though I accept Mr Parsons’ evidence that he assisted in the preparation of Mr Singh’s affidavit in response to the Respondent’s jurisdictional objection in the WAIRC Application, the affidavit states that Mr Singh prepared his affidavit, and lists his contact details, not Mr Parsons’.[39]
I therefore find that Mr Singh pursuing his application in the wrong jurisdiction cannot be attributed to representative error.
I now turn to consider whether Mr Singh’s error provides an acceptable reason for the delay in filing his s 365 application.
There are certainly examples where the Commission has found that an applicant’s error in filing in the wrong jurisdiction has constituted an acceptable reason for delay. However, each case turns on its own facts.
I accept that in some cases it can be quite difficult to discern the correct jurisdiction to file in. I accept that Mr Singh’s confusion over the correct jurisdiction is a satisfactory reason for delay up until the end of November 2023.
On 27 November 2023, Mr Singh received the Respondent’s jurisdictional objection. At that point he should have seriously revisited his conclusions on whether he had made his application in the correct jurisdiction. Though Mr Singh is not currently practicing, he is not a layperson. He was alive to the issue of jurisdiction and deadlines early on. He made preliminary steps with a specialist employment law firm to obtain legal advice but went no further.
There is no evidence that Mr Singh instructed Mr Parsons to conduct any research or conducted his own research on the Respondent’s business. Had he looked up the 2022 Agreement that covers the Respondent and its employees, he would have found that it was approved by the FWC, not the WAIRC. Further, Mr Singh first had access to the documents outlined in [56] of this decision since at least 5 September 2023. As per Mr Power’s evidence, the Yued Aboriginal Corporation Annual Report, the Yued Indigenous Land Use Agreement and the Noongar Boodja Trust Deed were all publicly available as of 22 December 2023, at the very latest. The only evidence of Mr Singh’s efforts are Mr Parsons’ emails to the Respondent’s solicitors seeking a copy of the Respondent’s Cultural Advice Policy.
I accept that Mr Singh and Mr Parsons were frustrated by the lack of engagement from the Respondent’s solicitors on informal discovery. However, Mr Parsons’ evidence is that a key piece of information in his deliberations with Mr Singh was the Respondent’s financial accounts[40] which, as canvassed above, was information that was publicly available well before 13 February 2024.
I do not find that Mr Singh has provided a satisfactory reason for the delay over December 2023.
Mr Singh relies on Mr Parsons’ evidence that they did not review the relevant case principles in light of the Respondent’s materials until early February 2024 due to a combination of the Christmas period, Mr Parsons’ family commitments and the demands of preparing Mr Singh’s evidence in the WAIRC Application.
I accept that all these demands on Mr Parsons’ time occurred. However, I note that Mr Singh has not provided any evidence of demands on his time for this period. I further note that the substance of Mr Singh’s affidavit in the WAIRC Application runs for approximately four pages, with a little over a page of that length dedicated to a summary of Mr Parsons’ efforts and emails to the Respondent’s solicitors to obtain the Respondent’s Cultural Advice Policy. The remainder of Mr Singh’s affidavit is not particularly complex in detailing his experience during the short time he was employed with the Respondent. I do not see how preparing this material would have taken a significant period of time. I therefore do not find that Mr Singh has provided a satisfactory reason for the delay over January 2024.
I accept that Mr Singh was confused as to the correct jurisdiction when he initially filed his WAIRC Application and find that he had a satisfactory reason for the period up until end of November 2023. If Mr Singh had discontinued his WAIRC Application shortly after being notified of the Respondent’s jurisdictional objection on 27 November 2023 and filed in the FWC, he would have had a far more persuasive argument. However, taking into account the events of December and January 2024, I find that overall Mr Singh has not provided a satisfactory explanation for the delay in filing his s 365 application. This is a factor that weighs against a finding of exceptional circumstances.
3.2 Action taken to dispute the dismissal
Mr Singh submits that he made considerable effort to challenge his dismissal, as evidenced by his WAIRC Application. The Respondent submits that Mr Singh did not take other reasonable steps, such as obtaining legal advice; considering the cases and the facts of which he was aware of; and reviewing evidence provided to him in a timely manner.
I find that by filing the WAIRC Application, Mr Singh did take action to dispute the dismissal. This is a factor that weighs in favour of a finding of exceptional circumstances.
3.3 Prejudice to the employer (including prejudice caused by the delay)
Mr Singh submits that on multiple occasions, the Respondent refused to meaningfully engage as to the proper jurisdiction. Had the Respondent promptly and substantively responded even in the briefest of ways, the delay might have been significantly shortened. Accordingly, the Respondent has suffered no prejudice from the potential extension of time; to the contrary, the Respondent’s own actions have caused prejudice to Mr Singh by “seemingly knowingly remaining silent”.
The Respondent submits that in defending the WAIRC Application it incurred legal fees and strained its resources. If an extension is granted, the Respondent will be required to further expend resources. In such circumstances, this establishes prejudice.
Mr Singh’s argument that the Respondent has somehow prejudiced him is not relevant to the statutory criteria. However, I am not convinced that there will be prejudice to the Respondent beyond the usual requirement of responding to a claim if an extension is granted. This is a neutral consideration in assessing whether exceptional circumstances exist.
3.4 Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[41] Further, the primary consideration is whether Mr Singh has an arguable case.[42]
Mr Singh submits that he was dismissed after making complaints or inquiries in relation to his employment by attempting to contact a specialist employment lawyer. The Respondent submits that Mr Singh was validly terminated as he was incapable of performing the role for which he was hired.
In cases such as this one where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing the Applicant’s case at its most favourable.[43]
I find that Mr Singh has an arguable case. This is a factor that weighs in favour of a finding of exceptional circumstances.
3.5 Fairness as between the Applicant and other persons in a similar position
Mr Singh submits that an analysis of similar matters involving either representative error or error as to jurisdiction shows that exceptional circumstances were found and extensions granted. The Applicant refers to Simon Ward v GrainCorp Operations[44] (Ward) and Anthony Cotterill v Black Box Technologies Australia Pty Ltd[45] (Cotterill) as examples.
The Respondent submits that these two cases do not assist Mr Singh. With regard to Ward, the Respondent contends that it is distinguishable on the following bases:
(a)the delay was only one day;
(b)the applicant promptly obtained legal advice either prior to or immediately after his dismissal;
(c)the applicant engaged counsel within two weeks of the dismissal;
(d)at all times decisions as to jurisdiction were in the hands of the applicant’s legal representatives; and
(e)the reason for delay was representative error and the occurrence of a public holiday.
With regard to Cotterill, the Respondent submits that it should be distinguished on the following grounds:
(a)the delay was only five days;
(b)the Commissioner did not find there was a valid reason for delay involving representative error; and
(c)the decision was largely based on the fact that the applicant had filed an unfair dismissal application within time, to be replaced by a general protection application out of time.
I am not persuaded that there is a consistent outcome where the Applicant has made an error as to jurisdiction or where there is alleged representative error. I find this to be a neutral consideration in assessing whether there are exceptional circumstances.
Conclusion
Having considered all the circumstances of this matter and the factors in s 366(2), I am not satisfied that there are exceptional circumstances. Though the criteria in ss 366(2)(b) and (d) weigh in favour of a finding of exceptional circumstances, I have placed more weight on the reason for the delay. I find that Mr Singh had the opportunity and access to documents to file his s 365 application in this Commission much earlier than 13 February 2024, and that his reason for filing late is unsatisfactory.
As I am not satisfied that there are exceptional circumstances, Mr Singh’s application must be dismissed. An Order to this effect will issue separately.[46]
COMMISSIONER
Appearances
I Latham of Counsel for the Applicant
T Power of Counsel for the Respondent
[1] Digital Court Book (DCB), page 68, [2].
[2] Ibid, page 68, [2] – [10].
[3] Ibid, page 68, [6]; page 70, [13].
[4] Ibid, page 81.
[5] Ibid, page 82.
[6] Ibid, page 90, [1].
[7] Ibid, page 70, [12].
[8] Ibid, page 71, [16].
[9] Ibid, page 71, [17].
[10] Ibid, page 72, [18] – [19].
[11] Ibid, page 72, [21].
[12] Ibid, page 91, [4].
[13] Ibid, page 108.
[14] Ibid, page 109.
[15] Ibid, page 91, [7].
[16] Ibid, pages 110 – 113.
[17] Ibid, page 114.
[18] Ibid, page 115.
[19] Ibid, page 116.
[20] Ibid, pages 118 – 119.
[21] Ibid, page 159, [12].
[22] Ibid, page 159, [14].
[23] Ibid, pages 120 – 126.
[24] Ibid, page 124.
[25] Ibid, page 96, [20].
[26] Ibid, page 98, [28].
[27] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[28] Ibid.
[29] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[30] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[31] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[32] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[33] DCB, pages 216 – 218.
[34] (2011) 211 IR 347; [2011] FWAFB 2728.
[35] DCB, page 72, [21]; page 91, [4].
[36] Ibid, page 91, [4].
[37] Ibid, page 71, [16].
[38] Ibid, page 98, [29].
[39] Ibid, pages 85 – 89.
[40] Ibid, page 98, [29].
[41] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[42] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[43] Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 at [42].
[44] [2022] FWC 2716.
[45] [2023] FWC 2663.
[46] PR774501.
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