Sumit Anand v Woolworths Group Limited

[2020] FWC 5501

[2020] FWC 5501

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sumit Anand
v
Woolworths Group Limited
(U2020/12078)

DEPUTY PRESIDENT COLMAN MELBOURNE, 15 OCTOBER 2020

Unfair dismissal application filed out of time – application dismissed

[1] This decision concerns an application by Mr Sumit Anand (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). The Applicant’s employment with Woolworths Group Limited (Respondent) was terminated with effect from 22 July 2020. The unfair dismissal application was lodged on 8 September 2020. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 12 August 2020. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[2] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty), 1 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.

[3] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[4] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

Reason for the delay

[5] The Act does not specify what reasons for delay tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation.

[6] The Applicant advanced several reasons for the delay in lodging his application. He stated that he was suffering from stress and mental trauma from his dismissal. He said that he tried to make a doctor’s appointment but was refused because he is not an Australian citizen. He said that he could not ask for advice about how to make an application because he was prevented from leaving the house under the current stage 4 COVID-19 restrictions in Victoria. The Applicant said that, when he called the Commission on 23 August 2020, it was suggested that he contact Legal Aid or Job Watch, which he did, but his calls went unanswered. The Applicant stated that he spoke to the Springvale Legal Service, but the advisor declined to provide advice. The Applicant claimed that he was unaware of the requirements for lodging an unfair dismissal. He also said that after his dismissal he was busy looking for a job.

[7] I do not find these to be acceptable or reasonable explanations for the delay. First, the Applicant did not provide any details of his stress and trauma or explain how it prevented or impeded him from lodging his application. Secondly, the stage 4 restrictions did not prevent the Applicant from seeking relevant assistance online or over the telephone. Thirdly, it is not necessary for a person to obtain legal advice in order to lodge an unfair dismissal application. Material to assist the general public in lodging unfair dismissal and other applications is available on the Commission’s website, and many applicants prepare and file their own applications without legal assistance. Fourthly, ignorance of the time limit and other requirements relating to unfair dismissal applications is not an acceptable reason for delay. Finally, many people who have been dismissed are busy looking for work. The Applicant has not made out an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application. This weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[8] The Applicant was notified of the dismissal on the same day that it took effect and had the full period of 21 days to lodge the application. This is a neutral consideration.

Action taken to dispute the dismissal, prejudice to employer

[9] The Applicant strongly protested to the company that he was innocent of the allegations against him. This carries some weight in favour of an extension.

[10] In my view no prejudice would accrue to the Respondent if an extension were granted. However, to the extent this favours an extension of time, I attribute little weight to it.

Merits of the application

[11] The Act requires me to take into account the merits of the application. The Applicant was dismissed for breaching food safety standards. Four allegations were found to be substantiated. These concerned failing to remove hot food that had been on display for four hours; instructing an employee to put expired cheese on the shelf for sale; failing to dispose of product that had been left out of the refrigerator overnight; and instructing a worker to throw the temperature books in the bin. Two other food safety breaches were found to be partly substantiated. The Applicant denies breaching food safety standards. He contends that the investigation was flawed and conducted in a rude and unprofessional manner which caused him stress. The Respondent denies this. It contends that the allegations were thoroughly investigated, that the breaches were substantiated, and that the dismissal was not unfair.

[12] It is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[13] Applications to extend time generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[14] Having regard to the matters that I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

S. Anand for himself
K. Hollings for Woolworths Group Limited

Hearing details:

2020
Melbourne (by telephone)
14 October

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 1   [2011] FWAFB 975