Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - extension granted.

[1] On 5 March 2019 Mr Dharun Prasad lodged an application pursuant to s.394 of the Fair Work Act 2009 seeking relief for an alleged unfair dismissed by Cordina Chicken Farms Pty Limited (Cordina).

[2] Mr Prasad's application was made 7 days outside the 21 day period prescribed by s.394(2) of the Act. The matter was listed by telephone on 10 July 2019 to determine whether Mr Prasad should be granted an extension of time pursuant to s.394(3) of the Act. Both parties were granted permission to be represented at the hearing. Mr D Potts of Kells appeared for Mr Prasad and Mr D Collinge of Gillis Delaney Lawyers appeared for Cordina.

[3] Section 394(3) of the Act provides:

(3) 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:

(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

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

[4] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the applicant.

[5] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd[1] where the Full Bench said:

"[13] In summary, the expression 'exceptional circumstances' has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

[6] I now deal with each of the provisions of s.394(3) of the Act.

[7] The submissions on behalf of Mr Prasad advanced three reasons for the delay, namely:

1. He was unaware of the 21 day time limit;

2. He was shocked and depressed after the dismissal; and

3. He was overseas for a period during the 21 day time period.

[8] Mr Prasad said that he had previously talked to his general practitioner about difficulties he had with his employer. In support of this Mr Prasad provided two medical reports, dated 12 May and 27 June 2019, from Dr Shekarchi of Hassall Grove Medical Centre. Both reports referred to a visit by Mr Prasad on 2 February 2019 and stated that he expressed feeling stressed and anxious due to work related issues.

[9] Mr Prasad said that he found it very difficult to cope after his dismissal, and he travelled to Fiji (where he was born) on 17 February 2019. He returned to Australia on 21 February 2019.

[10] Mr Prasad said that he did not know that he could take action until he was told by a friend in early March that he could speak to the Fair Work Commission.

[11] Mr Prasad claimed that he first became aware that he could bring a claim for unfair dismissal when he called the Commission on 5 March 2019 and he lodged the present application on the same day.

[12] In response, Cordina argued that none of the reasons provided by Mr Prasad were exceptional. It was submitted that Mr Prasad's unawareness of the 21 day timeframe was no excuse for the late lodgement of his unfair dismissal application. Further, the shock and distress that Mr Prasad claimed to have experienced was not uncommon for people who have been dismissed from their employment.

[13] As to the medical reports provided by Mr Prasad, it was argued that they only indicated that he had complained of stress and anxiety prior to his dismissal and did not record any symptoms being experienced post dismissal or record a diagnosis of any illness.

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

[14] There is no dispute that Mr Prasad was advised of his dismissal on 5 February 2019.

Any action taken by the person to dispute the dismissal

[15] Mr Prasad took no action to dispute his dismissal until this application was lodged.

Prejudice to the employer (including prejudice caused by the delay)

[16] Cordina did not point to any prejudice caused by the delay.

[17] For the purpose of determining whether to grant an extension of time for Mr Prasad to file his application, the Commission does not require a detailed consideration of the substantive case. In Kyvelos v Champion Socks Pty Limited[2], the Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 said:

[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement ... It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application ...

[18] In Damien Haining v Deputy President Drake & Ors[3] the Full Court of the Federal Court said:

'At the end of the day, the person exercising the discretion has to make an overall judgment as to the appropriateness of extending the time. The extent and the cause of the delay will usually be factors relevant to that judgment; so also will other matters included in the summary, to the extent they apply to the instant case; and perhaps other matters as well. The acceptability of the applicant's explanation for delay cannot be divorced from the effect of that delay on the respondent or other people. If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.' (emphasis added)

[19] Mr Prasad gave evidence in the form of a witness statement as to the matters that led to his dismissal. He was not cross examined about his evidence.

[20] Cordina relied on two reasons for the dismissal: the first related to an email sent by Mr Prasad to other employees, and the second related to a failure by him to report a safety breach that involved another worker, at a time when Mr Prasad was not at the employer's premises.

[21] The email was attached to Mr Prasad's witness statement. Mr Prasad said he had not been told about a change in the time the chicken processing would commence. He said other employees were advised before him. The email sent to Mr Prasad from 'Samir' said: "Hi Dharun, we tray (sic) to contact you but no answer se (sic) we called the hangers to start at 1am tomorrow". In reply, Mr Prasad said: "Yes you did try to ring me but after you rang my supervisors and my hangers, so get it right".

[22] Having considered the contents of the email, it is difficult to see how this could form any basis for his dismissal.

[23] In relation to the safety breach, it was not disputed that Mr Prasad was not involved in the safety incident that led to his dismissal, and he was not on site at the time it occurred. Mr Prasad's evidence, which was not challenged, was that by the time he next attended the workplace, the incident had already been reported. Accordingly, Mr Prasad could see no reason why he needed to report it. This would seem a logical conclusion for him to draw.

[24] It was submitted on behalf of Mr Prasad that the merits of his application were strong and that there was no valid reason for his dismissal. It was contended that Mr Prasad was a long serving employee and other than one prior warning (the circumstances of which were disputed) during his 25 year period of employment with Cordina, his employment history was unblemished.

[25] On behalf of Cordina it was submitted that the merits of Mr Prasad's claim were not strong. It was argued that the matters leading to the dismissal concerned safety, and Cordina had carried out an investigation into the allegations against Mr Prasad and conducted two interviews with him. Mr Prasad was afforded an opportunity to respond prior to his dismissal.

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

[26] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[4] considered this criterion and said 'cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.'[5]

[27] Neither party suggested that there are other relevant persons in a similar position to Mr Prasad.

[28] In Stogiannidis v Victorian Frozen Foods Distributors P/L[6], the Full Bench said:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] ... each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[29] Having considered all of the matters to which my attention is directed by the Act, I am satisfied that there are exceptional circumstances which would warrant my granting an extension of time. In this case it is a combination of Mr Prasad's circumstances that support such a finding. Mr Prasad had over 25 years of service with Cordina. The delay is a relatively short period of seven days. There is a lack of prejudice to Cordina. While the evidence as to merits is limited, on the facts not in contest which are set out above, I am satisfied that Mr Prasad has a prima facie case that his dismissal was unfair.

[30] Accordingly, an extension of time is granted. An order to that effect will be issued with this decision.

[1] [2011] FWAFB 975.

[2] [2000] AIRC 540.

[3] [1998] FCA 1168.

[4] [2015] FWC 8885.

[6] [2018] FWCFB 901.

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