Fair Work Act 2009

s.365 - General protections

The Hospitals Contribution Fund Of Australia Ltd & Anor

General protections dismissal dispute - application filed 819 days out of time - previous general protections application filed within 21 days of dismissal discontinued - other applications - no exceptional circumstances - application dismissed.

• [1] Vikram Singh commenced full-time employment with The Hospitals Contribution Fund of Australia Ltd (HCF) on 8 August 2022 as a Member Care Consultant - Parramatta. Mr Singh's employment contract contained a six-month probationary period. Mr Singh was dismissed by HCF on 20 October 2022 for underperformance during his probationary period.

• [2] Mr Singh has commenced the following legal proceedings against HCF since being dismissed:

• A general protections claim involving dismissal which was filed on 8 November 2022: Matter C2022/7457. This application was discontinued by Mr Singh on 24 January 2023.
• A complaint to the Australian Human Rights Commission (AHRC) which was filed on 4 March 2023. This complaint was terminated by the AHRC on 22 March 2024.
• A second complaint to the AHRC which was filed on 20 September 2024. This complaint was terminated on 3 April 2025.
• The current general protections claim involving dismissal which was filed on 6 February 2025.

• [3] The 21-day filing period for Mr Singh's current general protections application ended on 10 November 2022. Mr Singh's application was filed more than two years after that date. This decision concerns whether an extension of time should be granted to Mr Singh to file his application.

• [4] A hearing was listed via video on 18 June 2025. Mr Singh was aware of the hearing date because it was agreed during an earlier Mention/Directions proceeding on 14 May 2025, and a notice of listing was subsequently sent to Mr Singh. I agreed to list the hearing in the afternoon to accommodate Mr Singh being in a different time zone in India. Mr Singh failed to attend the hearing without explanation on 18 June 2025. Given Mr Singh's non-attendance, I decided to deal with the application on the filed material. This was not opposed by HCF and the other named respondent, Courtney Burling.

• [5] HCF relied on a witness statement from Paul Dutton dated 3 June 2025 which provides documentary evidence regarding the previous litigation Mr Singh has commenced against HCF.

• [6] Under section 366(2) of the Fair Work Act 2009 (FW 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 Mr Singh 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 Mr Singh and other persons in a similar position.

• [7] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1] I set out my consideration of each matter below.

• [8] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 10 November 2022. The delay is the period commencing immediately after that time until 6 February 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]

• [9] 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.[3] Mr Singh 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 Mr Singh has not provided any reason for any part of the delay.[4]

• [10] The reason for the delay identified by Mr Singh is his mental health issues. Mr Singh provided a medical certificate dated 4 June 2024 which confirms he suffers from depression and anxiety.

• [11] I accept Mr Singh suffers from a serious mental health condition. However, I cannot accept this medical condition provides a satisfactory explanation for the delay, given the various other litigation Mr Singh has been fit enough to commence since his dismissal. I find this factor weighs against a finding of exceptional circumstances.

What action was taken to dispute the dismissal?

• [12] Mr Singh has taken various actions to dispute his dismissal. This would ordinarily weigh in favour of finding there are exceptional circumstances. However, Mr Singh voluntarily discontinued a general protections application that was filed within 21 days of his dismissal. Given that action, I consider this factor should be treated as neutral.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [13] There is significant prejudice to HCF from what is an extremely lengthy delay. The ability of HCF to defend the application will inevitably be compromised by the delay. This factor weighs against a finding of exceptional circumstances.

• [14] 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)".[5]

• [15] If an extension of time is granted to Mr Singh, he is likely to have to deal with additional jurisdictional objections concerning the multiple actions prohibition in the FW Act and an argument that he should not be able to pursue this general protections application because he discontinued an earlier valid application on 24 January 2023.

• [16] In the circumstances, I consider the merits to be a neutral factor.

Fairness as between Mr Singh and other persons in a similar position

• [17] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[6] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[7]

• [18] I consider this is a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [19] 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.

• [20] 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]

• [21] Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances. Mr Singh does not have a satisfactory explanation for what is an extremely lengthy delay. HCF is prejudiced by the delay. I have not found that any of the statutory factors weigh in favour of finding that there are exceptional circumstances.

• [22] I decline to grant an extension of time for the filing of the application.

Ms Harding from MinterEllison representing HCF and Courtney Burling.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] ('Stogiannidis').

[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[6] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[7] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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