Thenahandi Silva v Instant Xpress Pty Ltd
[2024] FWC 2441
•9 SEPTEMBER 2024
| [2024] FWC 2441 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Thenahandi Silva
v
Instant Xpress Pty Ltd
(C2024/4511)
| COMMISSIONER SCHNEIDER | PERTH, 9 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal
Mr Thenahandi Silva (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that he has been dismissed from his employment with Instant Xpress Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.
The information provided in the application indicates that the application may have been made out of time. Before dealing with the dispute, I must be satisfied that the application was not made out of time.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 1 July 2024.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 13 May 2024.
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench has further stated, “[i]f the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
As I found above, the dismissal took effect on 13 May 2024. The final day of the 21-day period was therefore 4 June 2024 (as Monday 3 June 2024 was a public holiday in Western Australia) and ended at midnight on that day. The application was made on 1 July 2024. The application was made 27 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Submissions
The Respondent was directed to file any submissions and evidence that it sought to rely on or wanted the Commission to consider. The Respondent, despite being provided numerous opportunities to file submissions and evidence, has not filed any materials. As a result, this matter has been determined, on the papers, with reliance on the Applicant’s material alone.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 4 June 2024. The delay is the period commencing immediately after that time until 1 July 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
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.[5]
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.[6]
The Applicant submits that the delay was for the following reasons:
· After his employment ended, the Applicant’s mental health deteriorated, and he could not lodge his application. The Applicant has been diagnosed with anxiety and depression.
· The Applicant had difficulty performing daily tasks and, at one point, his girlfriend had to contact WA Police to perform a welfare check on him.
· The Applicant was also suffering from significant financial distress and needed his local church's help for support.
The Applicant provided the below timeline of events:
· 13 May – The Applicant is terminated from his employment with the Respondent.
· 13 to 21 May – The Applicant is restricted to bed rest and unable to participate in normal daily functions.
· 21 May – The Applicant’s girlfriend contacts WA Police who conduct a welfare check.
· 22 May to 6 June – The Applicant continues to suffer from mental health challenges.
· 7 June – The Applicant contacts his Representative online.
· 10 June – The Applicant’s Representative contacts the Applicant. The Applicant first advises his Representative that his termination occurred on 3 June 2024. The Applicant’s Representative confirms with the Applicant that the final day for filing, in reliance on the termination date provided in his instructions, would be 24 June 2024.
· 11 June – The Applicant formally engages his Representative. The Applicant also obtains a medical certificate confirming his mental health diagnoses.
· 18 June – The Applicant confirms to his Representative that his termination date is in fact 13 May 2024.
· 18 June to 1 July – The Applicant’s Representative completes the application.
Regarding the above, I find the reasons for the delay understandable in the circumstances. The Applicant was clearly negatively impacted by his mental health during the delay.
I note that there appear to be grounds upon which representative error could be argued. However, in light of the material before me, I am satisfied that any delay caused as a result of the advice the Applicant initially received regarding the final lodgment day, and the subsequent delay, was occasioned by the conduct of the Applicant in providing inaccurate instructions.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 1 July 2024.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The Commission is only properly able to assess the Applicant’s contentions regarding the merits of the matter. It appears that there is likely a significant issue present in this application, owing to the fact that the Respondent may have gone out of business.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. 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)”.[7]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[8]
Exceptional circumstances may 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.[9]
I have considered the material filed by the Applicant in relation to this matter and accept that his girlfriend contacted WA Police on 21 May 2024 to conduct a welfare check on the Applicant.
I also accept that the Applicant was diagnosed with anxiety and depression on 11 June 2024. I am satisfied the Applicant was facing hardship, due to his mental health decline, that was out of the ordinary course of circumstances.
Having regard to all of the matters listed at section 366(2) of the Act, I am satisfied that there are exceptional circumstances.
However, in consideration of the circumstances of this matter, I will not exercise discretion to grant an extension of time for the following reasons.
Even if an extension were granted, as it appears that the Respondent is no longer a viable employer, the likelihood of any financial or other beneficial outcome if the matter proceeds, if the Respondent even continues to participate in light of its trading status, is poor.
I do not feel it is appropriate for me to exercise my discretion as the application has a likely fatal jurisdictional issue, as a result of the Respondent’s trading status.
I have decided that to grant the Applicant an extension of time, knowing that the application will very likely prove fruitless and the very real possibility that the Commission may not have jurisdiction to determine the matter in light of the Respondent's status, is not an efficient use of the Commission’s time and not in line with the objects of the Act.
The Applicant and his Representative may have their issues addressed more properly by other government bodies through which it may be possible to pursue the Respondent in relation to allegations of unpaid entitlements or as a creditor in any liquidation proceedings.
Conclusion
Not being satisfied that discretion should be exercised to grant an extension of time, the matter has not been filed in accordance with the Act. Accordingly, the Applicant’s application for the Commission to deal with a dismissal dispute is dismissed. An Order to that effect is issued.[10]
COMMISSIONER
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877.
[3] [2018] FWCFB 901, [39].
[4] [2015] FWCFB 287, [12].
[5] [2018] FWCFB 901, [39].
[6] Ibid, [40].
[7] [2011] FWAFB 975, [36].
[8] [2011] FWAFB 975, [13].
[9] Ibid.
[10] [PR779063].
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