Vijendra Singh v Mirotone Pty Ltd
[2024] FWC 1192
•9 MAY 2024
| [2024] FWC 1192 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vijendra Singh
v
Mirotone Pty Ltd
(U2024/3858)
| DEPUTY PRESIDENT DEAN | CANBERRA, 9 MAY 2024 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances.
This decision concerns an application by Mr Vijendra Singh (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.
The Applicant was employed by Mirotone Pty Ltd (Respondent) until his employment was terminated with effect on 12 February 2024. His unfair dismissal application was lodged on 4 April 2024.
Section 394(2) of the Act provides 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 application in the present matter was filed some 31 days outside the 21 day period and can only proceed if the Commission grants a further period for the application to be made.
The matter was listed for hearing by telephone on 8 May 2024 to consider the extension of time issue. The Applicant appeared his own behalf and Ms A Dixon appeared for the Respondent.
Extension of time
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’. 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.[1] 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.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.
Consideration
Reason for the delay
The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[3]
The Applicant advanced the following reasons for the delay in lodging his application:
“The reason for the delay was, that I was shocked when I was given a notice, that my employment was terminated and I had to leave the premises in the next 1.5hr. It was a complete shock to me. Since then I started suffering from mental health. I constantly felt sadness and loss of interest doing my normal activities. My GP advised, me to a Physiologist and a Psychiatrist and later advised I maybe depressed and I was having trouble with anxiety.
I truthfully was not aware of the 21-day time limit for employees to file unfair dismissal applications in the Fair Work Commission until the week I lodges the application.”
I accept that the Applicant was shocked, however shock at being dismissed is not an unusual response to being dismissed.
The Applicant provided some medical evidence however it related to a period of time prior to his dismissal. There was no medical evidence to support a finding that the Applicant was suffering from a medical condition that prevented him from lodging his application within the required timeframe.
Having considered the reasons advanced by the Applicant as to the reason for the delay, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application. This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of his dismissal at a meeting on 12 February 2024 which was followed by a letter of termination. He was therefore afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute the dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Applicant had been employed for over 25 years. He was involved in a non-work-related motor vehicle accident in June 2023 and since that time had only been able to perform light duties on a part time basis. He says he was aiming to return to full time work and full duties by the end of February 2024.
The Applicant gave evidence that he was called in to a meeting on 12 February 2024, and without any prior warning he was dismissed and escorted off the premises.
The Respondent said its decision to dismiss the Applicant was based upon medical grounds, being his incapacity to perform the inherent requirements of his substantive role. The Respondent says it engaged with the rehabilitation provider to ensure that the Applicant continued to receive payments and benefits from the CTP insurer when his employment came to an end.
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.
On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
While I am sympathetic to the Applicant’s circumstances, I am not satisfied that the circumstances in this matter are exceptional, either when considered individually or together. The circumstances must be exceptional for the Commission to extend time.
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 is dismissed.
DEPUTY PRESIDENT
Appearances:
V Singh on his own behalf.
A Dixon for Mirotone Pty Ltd.
Hearing details:
2024.
By telephone:
May 8.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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