Sumit Chitkara v Leasing Finance Services Pty Ltd
[2023] FWCFB 29
•8 FEBRUARY 2023
| [2023] FWCFB 29 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Sumit Chitkara
v
Leasing Finance Services Pty Ltd
(C2022/7425)
| VICE PRESIDENT CATANZARITI | SYDNEY, 8 FEBRUARY 2023 |
Appeal against decision [2022] FWC 2826 of Commissioner P Ryan at Sydney on 20 October 2022 in matter number U2022/9292 – permission to appeal refused.
Mr Sumit Chitkara (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner Ryan (Commissioner) issued on 20 October 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Leasing Finance Services Pty Ltd (the Respondent) pursuant to s.394 of the Act.
As the initial application for the unfair dismissal remedy was filed out of time, the Appellant sought an extension of time. The Commissioner ultimately refused to grant an extension of time and the Decision records his reasons for refusal.
This matter was listed for permission to appeal and the merits of the appeal. Directions were set for the filing of material. Each of the parties filed written submissions and made further oral submissions at the hearing on 7 December 2022.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant commenced employment with the Respondent in January 2021. On 12 August 2022, the Appellant was sent a ‘show cause’ email. It is unnecessary to record the detail of those matters (and we note there are disputes about a number of aspects) but it suffices to say that the matters were not resolved to the Respondent’s satisfaction.
On 24 August 2022, a further meeting between the parties ensued. A number of those details are also disputed, but it was not in dispute that the cessation of employment took effect on that day.
On 15 September 2022, the Appellant filed a ‘Form F2’ application seeking an unfair dismissal remedy. The application was filed one day outside the 21-day period required by s.394(2)(a) of the Act and, accordingly, a further period of time was required in accordance with s.394(3) if the unfair dismissal application was to proceed.
In his Form F2, the Appellant stated in respect of lateness:
“My application is submitted on Sep 15th, and is late by 1 day.
I was having cough and cold on the day of dismissal (24th August). This lingered on and became worse for which I had to go the GP on Sep 1. I have attached my prescription copy (Annexure F – Doctors prescription). Only this prescription is readily available. I can ask the GP and provide a medical certificate as well if the fair works commission desires.
This consumed more than 1 week and I could not work on the case.
It also took me time to study the law, employee rights and deciding to stand up for what I feel is right.
I request you to please allow my complaint to be registered.”
The Commissioner gave the parties opportunity to file supporting material. The Appellant filed brief submissions, which substantially reflected the above statements from his Form F2, save that he additionally stated that, during the 21-day period, he was also “focusing on finding a new job”.
From paragraphs [9] – [13] of the Decision, the Commissioner summarised the key principles regarding the requirement for there to be “exceptional circumstances” before an extension of time might be granted. The principles identified by the Commissioner were orthodox and there is no suggestion he misstated them. Section 394(3) of the Act is as follows:
“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.”
At paragraph [15] of the Decision, the Commissioner commenced his consideration of the factors in s.394(3), beginning with the reasons for the delay. The Commissioner then summarised the reasons for delay advanced by the Appellant into three broad headings and then proceeded to consider them in some detail from paragraphs [17] – [28]. It is not necessary to set them out in full because they do not appear to be in issue for any of the grounds of appeal (which we describe further below). At [29], the Commissioner concluded that those reasons, separately or together, did not in his view constitute an acceptable or reasonable explanation for the delay and it was a factor that weighed against a conclusion that there were exceptional circumstances warranting an extension of time.
From paragraphs [30] – [32] of the Decision, the Commissioner considered the factors in s.394(3)(b) – (d) of the Act, and concluded that they either did not favour a finding of exceptional circumstances or were treated neutrally. Section 394(3)(f) was also treated as a neutral factor.
As to s.394(3)(e), the merits of the Appellant’s substantive unfair dismissal application, the Commissioner was unable to form any conclusive view on this factor and his reasons were as follows:
“[33] The FW Act requires me to take into account the merits of the application in considering whether to extend time. While the parties agree that the Applicant resigned from his employment, the parties are in dispute as to whether the Applicant was forced to do so because of conduct engaged in by the Respondent.
[34] Accordingly, it is not possible to make any firm or detailed assessment of the merits, as 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. I consider the merits to be a neutral consideration.”
The Commissioner then proceeded to consider all of the factors required by s.394(3) of the Act and he concluded that, whether taken individually or together, there were not “exceptional circumstances” warranting an extension of time. Not being satisfied that there were exceptional circumstances, the Commissioner therefore dismissed the application.
Grounds of Appeal
In the Appellant’s ‘Form F7’ Notice of Appeal, he states there are three “significant errors of fact” in the Decision as follows:
“1. His Honour should have paid further attention to material lodged during the hearing.
2. that the primary decision maker (His honours Commissioner Ryan) had mistaken the False Statements made during the hearing as Facts, and also
3. that the primary decision maker had failed to take some material consideration into account even though glaring false facts were told during the hearing.”
The Form F7 elaborates on the above grounds over a number of pages and supporting documentation was also included. However, they all revolve around what were said to be “false facts” advanced by the Respondent before the Commissioner.
The “false facts” appear to be unsworn statements made by the Respondent’s representative at the hearing before the Commissioner (noting again that neither party filed witness evidence, as recorded by the Commissioner). In the Appeal Book prepared by the Appellant, he identifies in the Transcript of the hearing on 20 October 2022, the following exchange with the Commissioner:
“PN54 THE COMMISSIONER: What do you say about whether there was a termination? Well, sorry, I might just go back one step then, Ms Hugginson, before I go to the applicant. Leaving to one side whether it was a termination or resignation does the respondent agree that the employment ended on 24 August?
PN55 MS HUGGINSON: It did, yes, with four weeks’ notice paid out.
PN56 THE COMMISSIONER: So with payment made in lieu of notice?
PN57 MS HUGGINSON: That’s correct.”
The statement concerning the payment of notice in lieu was one of the alleged “false facts” raised by the Notice of Appeal. So far as the payment of notice in lieu was concerned, that statement does appear to be incorrect, as the Respondent subsequently acknowledged it in an email to the Appellant.[2] The relevant part of the email is as follows:
“During the Fairwork hearing, it was incorrect of me to say that Eclipx had paid out 4 weeks’ notice upon investigation internally it was found that due to your extended unauthorised absence there was no requirement for you to work your notice period and at your request, following your resignation, Eclipx agreed that it would be your last day. Therefore a mutual agreement to not enforce the notice period contractual clause was reached.”
The second “false fact” concerned a statement from the Respondent’s representative to the effect that she had not received a blank ‘Form F3’, which the Respondent was required to (and did not) complete prior to the hearing. The Commissioner indicated he was not aware a Form F3 had been received and, upon raising that query, the following exchange occurred with the Respondent’s representative:
“PN 31 MS HUGGINSON: No, that’s correct. I’ve not actually received the F3 form to complete or that pack that is typically allocated at the time of receiving the claim. I have followed that up with the chambers via email and via telephone calls last week to ensure that any required documents were completed and sent through at the adequate time.
PN 32 THE COMMISSIONER: A blank F3 form was attached to the email from the chambers of Catanzariti VP on 21 September.
PN 33 MS HUGGINSON: I received only PDF documents with the attachments, that I received in my in-box which I’m happy to forward on.
PN 34 THE COMMISSIONER: Very well. The main point is at this stage I wanted to make sure that we just haven’t missed it. Is that correct?
PN 35 MS HUGGINSON: That’s correct, yes.”
There was a dispute between the parties as to whether or not the termination of employment was as a result of a resignation (which was the Respondent’s case) or a forced resignation (being the Appellant’s case). Taking that aspect of the dispute, together with the “false facts” described above, we understand that the Appellant alleges that the Commissioner erred by failing to properly consider the “merits” of the case for the purpose of s.394(3)(e) and, by corollary, had he done so, he would have found exceptional circumstances and granted an extension of time. In the Appellant’s written submissions filed in support of his application for permission to appeal, he states (original emphasis):
“This false testimony in the hearing is a confession on camera in front of the His Honour that Leasing Finance did not follow any procedure. This could and should have been considered as prima-facie evidence against Leasing Finance that it was a forced resignation and should have been considered as part of Merit in the case. This lie from the Chief people Officer is a confession on record of the wrong doings i.e. in this case an unfair dismissal. Why would Leasing Finance provide false facts if there is no wrong done.”
Consideration
In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the Decision of the Commissioner was attended by appealable error.
In substance, the Appellant’s grounds of appeal require, firstly, an acceptance of “false facts” then, secondly, an acceptance that those false facts demonstrate a forced resignation or procedural unfairness then, thirdly, that the Commissioner failed to consider relevant matters that would have affected his assessment of the “merits” of the unfair application such that his assessment might have changed.
While we are prepared to accept that the Respondent incorrectly told the Commissioner that the Appellant had been paid notice in lieu, there is simply no part of the transcript of the hearing nor the Decision that indicates it was in anyway relevant or influential to the Commissioner’s consideration. That is not to excuse parties – particularly lawyers or practitioners in industrial relations or employment law – from being careless in the information provided to the Commission but it had no bearing in the present case at all.
As to the “false fact” concerning the Form F3, we do not consider that a fair reading of the exchange with the Commissioner indicates a falsity of the kind advanced by the Appellant, let alone that it had any bearing on the Decision at all.
Regardless of the alleged “false facts”, the position remained unchanged that there was a dispute between the parties as to whether there was a forced resignation or not. During the hearing, the Commissioner summarised the differences between the parties as follows:
“PN 61 THE COMMISSIONER: There is a dispute about that, okay, but in essence there is a dispute as to whether there’s a dismissal. On the one hand the respondent says the applicant resigned and, therefore, there was no termination at the initiative of the employer. On the other hand, the employee – sorry, the applicant says there was a – he resigned but it was a forced resignation and, therefore, constitutes a dismissal for the purpose of the Act. Is that a fair summary of the positions of the parties on the cessation of employment?”
The transcript recalls the Respondent assenting to the Commissioner’s question and, while the transcript does not record the Appellant’s response, on the material before us, that broad-brush assessment seems plainly correct. In short, there was a material dispute between the parties as to the character of the cessation of employment.
Even taking the Appellant’s “false facts” at their highest, there is an impermissibly wide gap to conclude from those circumstances that they warrant a different finding that factual disputes about earlier events ought to be resolved wholly in favour of the Appellant (at least for the purpose of s.394(3)(e)) without any of that evidence being properly received from a witness and being tested.
Moreover, the Appellant’s ground of appeal misconceives the nature of the assessment of “merits” for the purpose of s.394(3)(e) of the Act. At the stage of a proceeding where an extension of time application is being considered, it is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[3] and the same applies to s.394(3)(e). That is how the Commissioner proceeded, as recorded at paragraphs [33] – [34] of the Decision. No error is discernible.
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400 that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· the appeal raises issues of importance and/or general application;
· the Decision manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
S. Chitkara on his own behalf.
Z. Hugginson from the Respondent.
Hearing details:
2022.
Melbourne (by video via Microsoft Teams):
December 7.
[1] [2022] FWC 2826 (‘the Decision’).
[2] An email dated 9 November 2022, described as ‘Annexure M’ in the Appeal Book.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
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