Fair Work Act 2009

s.365 - General protections

Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust T/A TSA Group

Application to deal with contraventions involving dismissal - extension of time.

[1] This decision concerns an application by Mr Harjit Singh under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] I find that the date that Mr Singh's employment ended was 17 January 2019. His application was lodged on 26 August 2019. Accordingly, the period of 21 days for lodgement ended at midnight on 8 February 2019 and the application was therefore lodged 199 days out of time. Mr Singh seeks that the Commission allow a further period of time for the application to be made. The Respondent company opposes the grant of an extension of time.

[3] On 28 October 2019 I conducted the proceeding by way of determinative conference. Mr Singh appeared on his own behalf. Ms Peggs appeared on behalf of the company.

[4] Mr Singh filed his application naming TSA Group, ABN: 45 410 223 210, as the employer. The response filed by the company indicates that the correct name of the employer is Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust T/A TSA Group, ABN: 45 410 223 210. It was agreed by both parties at the determinative conference that the correct name of the employer is Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust T/A TSA Group. Pursuant to section 586 of the Act the application is amended to the extent that the true legal employer is correctly identified.

[5] Mr Singh commenced employment with the company on 19 October 2018, in the position of casual Inbound Service and Sales Consultant, working on behalf of HCF Health Funds.[1] The role entailed receiving inbound call from HCF customers to support customer enquiries and account matters.[2] The work was performed in a call centre environment. In his Outline of Argument Mr Singh says that his dismissal took effect on 27 January 2019.[3] However, at the determinative conference, Mr Singh conceded that he was verbally advised of the termination of his employment on 17 January 2019 and that it took effect on that day. Final written confirmation of the termination of his employment was, ultimately, provided to Mr Singh on 29 January 2019.[4] Accordingly, I find that Mr Singh's dismissal took effect on 17 January 2019. Mr Singh's evidence was that he is not a permanent resident or citizen of Australia.

[6] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that 'exceptional circumstances' exist. This establishes a high hurdle for an applicant.[5]

[7] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[6] where it was noted that, in order to be exceptional, 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.[7]

[8] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position.

[9] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[8] or a reasonable explanation.[9] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd the Full Bench noted that the absence of an 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 the circumstances must be considered.[10] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[11]

[10] In his materials[12] and in his evidence at the determinative conference Mr Singh says that following his dismissal he was depressed, stressed, anxious and mentally unwell. I accept that Mr Singh was stressed following the termination of his employment. However, this is both a common and understandable reaction. Mr Singh did not file any medical evidence in support of his asserted depression, anxiety or mental illness, nor any evidence that this prevented him from lodging the application in time.

[11] He says he had no money and was in financial distress, including resulting from a car accident (and the costs associated with repairs of a replacement car which he purchased) and because he had a student loan to pay off. However, Mr Singh provided no evidence in support of this financial distress. Further, in my view, although regrettable, financial distress following the termination of one's employment and the consequent loss of income cannot be said to uncommon or special or unusual.

[12] Mr Singh also says in his materials that he had to move house.[13] However, he did not give any evidence about this matter at the determinative conference. Mr Singh also says that he had a heart attack in 2018, has a cardiac stent and takes medication which he is required to pay for.[14] At the determinative conference Mr Singh did not seek to rely upon this as a reason for the delay; rather, as I understand it, this was provided as a further example of the expenses Mr Singh had to meet, the financial stress he was under following his loss of employment and income and the challenges he has faced since the termination of his employment.

[13] Mr Singh gave evidence that following the termination of his employment he searched and applied for alternate employment, attended interviews and ultimately obtained alternate employment in early March 2019. Unfortunately, Mr Singh says his employment in this new role was terminated after two weeks (Second Termination). Since that time, Mr Singh's evidence was that he has continued to search for alternate employment and has applied for, and attended interviews for, a number of roles. Further, Mr Singh also gave evidence that since the termination of his employment he has done odd jobs for friends for money. If Mr Singh had sufficient capacity to search, apply for, obtain and attend work, and undertake odd jobs for friends for money, it is difficult to see how he did not have sufficient capacity to lodge the application in time.

[14] Finally, Mr Singh also says that he was unaware of his rights as a non-permanent resident or citizen to challenge his dismissal.[15] It is well established that ignorance of one's rights is not an acceptable explanation for late lodgement.[16] Further, Mr Singh gave evidence that sometime in March 2019, following the Second Termination, he accessed the Fair Work Commission website to obtain information as to his rights to challenge that dismissal. Accordingly, even if it is accepted that Mr Singh was not aware of his rights to challenge his dismissal after his employment ended on 17 January 2019, it is difficult to see how it can be said that after he accessed the Commission website in March 2019 he remained unaware of his rights to challenge his dismissal after that time.

[15] Accordingly, in my opinion, Mr Singh has failed to provide an acceptable or reasonable explanation for the delay in lodgement. This weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

[16] Mr Singh's employment was terminated in a meeting on 17 January 2019. It is agreed that at this meeting the company advised him of the deficiencies in his performance and he was given an opportunity to respond to those matters. It is also agreed that he was told his employment was at risk and may be terminated. In response to a question from Ms Peggs, Mr Singh accepted that he did not dispute his dismissal. It is, however, agreed that on 5 April 2019 Mr Singh sent an email to the company (Email). The company says the Email did not dispute Mr Singh's dismissal; rather Mr Singh set out his personal and professional struggles post termination of his employment with the company.[17] The Email was not before the Commission. However, although Mr Singh was unsure of when he sent the Email, he agreed with the company's characterisation of it. Accordingly, on the basis of the material and evidence before me, I find that Mr Singh did not dispute his dismissal at the time of his termination of employment or at any time thereafter prior to the lodgement of his application. This weighs against the granting of an extension of time.

[17] The company submits that it will suffer prejudice. It says that the delay is significant and further that it ought be entitled to arrange its affairs and utilise resources on the basis that claims can no longer be made against it after the lodgement period for such claim has expired.[18] Whilst, I accept that is the case, as a general proposition, the Act clearly allows for the acceptance of a claim after the lodgement period has expired in "exceptional circumstances". Although the delay is of some duration, I cannot identify any particular prejudice that would accrue to the employer were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

[18] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[19] Mr Singh alleges that adverse action was taken against him in contravention of section 351 of the Act. Section 351 provides that an employer must not take adverse action against a person who is an employee because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Mr Singh alleges that adverse action was taken against him because of his "speaking ability".[19] His evidence as to this is that he was terminated for speaking too fast, his difficulty in understanding customers and repeatedly asking questions of customers. Mr Singh also alleges that the company's actions contravened section 344 of the Act, however he was unable to address me as to this.

[20] There is no dispute that the company dismissed Mr Singh. Accordingly, it is uncontested that adverse action, in the form of dismissal, was taken against Mr Singh. The company says, however, that it terminated Ms Singh's employment because of, inter alia, poor performance. It says despite training and one-on-one private coaching he was unable to perform the inherent requirements of the role. In short, the company says Mr Singh's communication skills were inadequate to satisfactorily perform the role and he was the subject of numerous poor customer satisfaction scores and complaints. Key deficiencies were his speed of speech, his ability to communicate clearly with customers and his ability to understand customers. It is also uncontested that on 11 January 2019 Mr Singh took a call in which he breached a customer's privacy and disclosed information contrary to instructions detailed on the customer's account. The company also says that in that call Mr Singh failed to adhere to the escalation process. Mr Singh denies this.

[21] As to Mr Singh's claim that his termination was in breach of section 351, speaking ability or speaking too fast are not protected attributes under section 351. Further, as already set out, Mr Singh was unable to address me as to how he says section 344 is engaged. Accordingly, on the basis of the material before me Mr Singh's claim appears to be weak. This weighs against the granting of an extension of time.

Fairness as between the person and another person in a like position

[22] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Singh and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[23] The time limit that applies to the exercise of a person's right to bring an application under section 365 reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[24] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist.

[25] Accordingly, I decline to grant an extension of time under section 366(2). Mr Singh's application under section 365 of the Act is dismissed.

[1] Letter of offer dated 18 October 2018, Exhibit R1 paragraph 2 at question 5.1

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [14]

[6] [2011] FWAFB 975

[8] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, per Gostencnik DP at [9]

[9] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

[11] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

[12] Exhibit A1 at question 1.4, Exhibit A2 at question 1d

[16] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[17] Exhibit R1 at paragraph 2.6 of question 6.1

[19] Exhibit A1 at question3.3, Exhibit A2 at question 1e and 1g

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