Fair Work Act 2009

s.394 - Unfair dismissal

Extension of time (s 394(3)) - no exceptional circumstances - application dismissed

• [1] This decision concerns an application made by Mr Sukhdeep Sidhu for an extension of time within which to bring his unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Mr Sidhu submits that he was dismissed from his employment as a heavy vehicle operator with L'Arthur Transport Pty Ltd (respondent). He says that on 14 July 2022, his manager, Mr Singh, subjected him to abuse and told him not to come to work again. The respondent contends that Mr Sidhu was not dismissed and that he remains a casual employee of the company. I will proceed on the basis that, assuming there was a dismissal, it occurred on 14 July 2022, as Mr Sidhu contends.

• [2] Section 394(2) states that an unfair dismissal application must be made 'within 21 days after the dismissal took effect', or such further period as the Commission allows pursuant to s 394(3). The 21-day period ended at midnight on 4 August 2022. The application was lodged by email to the registry of the Commission on 11 August 2022, seven days out of time. In order for Mr Sidhu's application to proceed, he requires an extension of time.

• [3] Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are 'exceptional circumstances.' The Commission does not have a general discretion to extend time simply because it may think it fair to do so (contrast s 185(3)(b)). I adopt the broad approach to the expression 'exceptional circumstances' set out by the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness as between the person and other persons in a similar position.

• [4] The Act does not indicate the reasons for delay that might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an acceptable or reasonable explanation. Mr Sidhu submitted that there were several reasons for the delay in lodging his application. First, he was 'expecting justice' from the respondent. By this he meant that he had asked the company to investigate his dismissal and explain why he had been dismissed by Mr Singh, and that it was not until 11 August 2022 that he received a formal response from the respondent. The response stated that his position was still in place if he chose to return to work but did not reach any conclusion about the dispute between Mr Sidhu and Mr Singh. Secondly, Mr Sidhu said that he was unaware that he could seek justice somewhere else, by which he meant that he was unaware that he could bring an unfair dismissal application against the company. He said that he had believed that, as a casual, he could be dismissed at any time, and that it was only after he spoke with a friend on 11 August 2022 that he discovered that he could make an unfair dismissal application. Mr Sidhu also said that following his dismissal he was upset, stressed and unwell, that he has a young child and that his wife is studying. A statement filed by Mr Sidhu's wife states that Mr Sidhu's general practitioner considers that he is suffering from mental stress.

• [5] The fact that Mr Sidhu asked the company to investigate his dismissal was not an acceptable reason for failing to lodge his unfair dismissal application within time. He did not have to wait until he received the findings of the company's investigation. Mr Sidhu could simply have filed his unfair dismissal application while he was waiting for the company's response. Mr Sidhu's unawareness of the law is not an acceptable reason for delay. There is ample information on the Fair Work Commission website concerning unfair dismissal applications. And although Mr Sidhu was upset after his dismissal, and also unwell, there is no convincing evidence that these matters prevented or seriously impeded the filing of a timely application. I note that Mr Sidhu has only been in Australia for five years, and that English is his second language, but these are common circumstances, and there is no reason why he could not have made inquiries and lodged his unfair dismissal application on time, as many new residents do. I am not satisfied that Mr Sidhu has an acceptable or reasonable explanation for the delay. The reasons for the delay weigh against an extension of time.

• [6] I consider the following matters to be neutral considerations. First, Mr Sidhu was notified of his dismissal on the same day that it took effect (s 394(3)(b)). Secondly, there is no prejudice to the employer (s 394(3)(d)). Thirdly, I am not aware of any matters that are relevant to the question of fairness as between Mr Sidhu and other persons (s 394(3)(f)).

• [7] Mr Sidhu contends that he took action to dispute his dismissal by contacting the respondent and asking it to investigate his dismissal and by participating in the company's investigation of his complaint (s 394(3)(c)). I accept this. The fact that Mr Sidhu took action to dispute his dismissal weighs in favour of an extension of time.

• [8] The Commission is required to consider the merits of the application (s 394(3)(e)). Mr Sidhu contends that he was dismissed following an unauthorised stop-work action where he and his colleagues did not attend for work over an incident between a colleague and another employee. Mr Sidhu said that he received a text message from his supervisor on 12 July 2022, which directed him to call his manager Mr Singh if he was ready to return to work. Mr Sidhu said that on 14 July 2022, he called Mr Singh and that Mr Singh was abusive and dismissed him without providing any reason. Mr Sidhu then contacted the company's director and asked that the company investigate his dismissal. The company stated in its response of 11 August 2022 that his casual position was open, however Mr Sidhu said that he was currently unwell, and maintained that he had in fact been dismissed by Mr Singh.

• [9] The respondent objects to the application on the ground that it did not dismiss Mr Sidhu. The company conducted an investigation into Mr Sidhu's alleged dismissal and was unable to make any findings about the content of the phone call between Mr Sidhu and Mr Singh on 14 July 2022, save that Mr Sidhu had not been dismissed and his job remained open to him if he chose to return to work. The respondent also submitted that it had told Mr Sidhu that it would be happy to provide mediation between him and Mr Singh.

• [10] An application to extend time is in the nature of an interlocutory application (see s 396). In this case, the merits turn on disputed points of evidence that would need to be tested if the matter were to proceed. In particular, there is a threshold question about whether Mr Sidhu was indeed dismissed within the meaning of s 386 of the Act. Much would depend on factual findings. I consider that Mr Sidhu has at least an arguable case that he was dismissed by Mr Singh on 14 July 2022, and that his dismissal was unfair because there was no valid reason for it. I also consider that the respondent has an arguable defence that Mr Singh did not dismiss Mr Sidhu at all. The merits of the matter are a neutral consideration.

• [11] The Commission can only extend time if it is satisfied that there are exceptional circumstances. One of the considerations in s 394(3) weighs in favour of an extension of time, another weighs against this course. Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Mr Sidhu's unfair dismissal application is therefore dismissed.

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