Aneessh Kumar v Clevercare Solutions [2024] FWC 1293

1 Fair Work Act 2009 s.394—Unfair dismissal Aneessh Kumar v Clevercare Solutions (U2024/4045) COMMISSIONER SCHNEIDER PERTH, 16 MAY 2024 Application for an unfair dismissal remedy [1] Mr Aneessh Kumar (the Applicant) has made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he has been unfairly dismissed from his employment with Clevercare Solutions (the Respondent). [2] The information provided in the application indicates that the application may have been filed out of time. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time. [3] The matter was listed for Hearing to determine the issue and the parties were directed to file materials. [4] The Applicant filed materials in compliance with the directions. [5] The Respondent did not file materials as directed. [6] The Respondent was afforded a further opportunity to file materials and warned that further non-compliance could result in the determination of the issue being made solely on the Applicant’s materials. The Respondent did not comply with the Commission’s further direction. [7] Subsequently, and upon review of the materials filed by the Applicant, the Hearing was vacated, and the parties were informed the determination would be made on the papers. Dismissal date Relevant Law [8] Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit: [2024] FWC 1293 DECISION -- 1 of 7 -- [2024] FWC 1293 2 “394 Application for unfair dismissal remedy (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. … (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3)…” [9] As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”1 [10] The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”2 [11] Upon review of the materials before the Commission, it appears that the dismissal took effect on 8 March 2024. [12] It is a matter of record that the application was made on 8 April 2024. [13] As noted above, the dismissal took effect on 8 March 2024. The final day of the 21-day period was therefore 29 March 2024 and ended at midnight on that day and the application was made on 8 April 2024. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. Extension of time Relevant law [14] Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. [15] The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised. [16] Section 394(3) of the Act lists the considerations the Commission must take into account: “394 Application for unfair dismissal remedy …. (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: -- 2 of 7 -- [2024] FWC 1293 3 (a) the reason for the delay; and (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 (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position.” [17] The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted in the given circumstances. [18] Each of the above matters must be considered in assessing whether there are exceptional circumstances.3 [19] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. [20] The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.4 [21] 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.5 [22] 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.6 An applicant 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 the applicant has not provided any reason for any part of the delay.7 [23] The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.8 [24] This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application. Consideration of Criteria Reason for the delay [25] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 29 March 2024. The delay is the period commencing -- 3 of 7 -- [2024] FWC 1293 4 immediately after that time until 8 April 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.9 [26] The Applicant did not file substantive submissions or evidence in relation to the out of time issue. [27] The submissions provided by the Applicant primarily concerned the dispute over his final payment and his attempts to resolve this directly with the Respondent. [28] The Respondent did not file any material or submissions in compliance with the directions issued. [29] The Applicant submits that the delay was due to him receiving assurances from the Respondent that his final payment would be processed on 15 March 2024. [30] The Applicant submits that the Respondent further confirmed the final payment would be processed on 28 March 2024. [31] The Applicant submits that, in the end, no final payment was made by the Respondent. [32] The Applicant provided evidence by way of screenshots showing his attempts at chasing the final payment from the Respondent. [33] The Applicant submits that, after speaking to his brother-in-law, he filed this application with the Commission on 8 April 2024. Did the Applicant first become aware of the dismissal after it had taken effect? [34] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. What action was taken by the Applicant to dispute the dismissal? [35] Other than the attempts to chase a final payment, the Applicant did not take any actions to dispute their dismissal prior to making the application on 8 April 2024. What is the prejudice to the employer (including prejudice caused by the delay)? [36] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. What are the merits of the application? [37] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials. -- 4 of 7 -- [2024] FWC 1293 5 [38] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. [39] 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)”10 and the same applies to section 394(3)(e) of the Act. [40] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. [41] The Applicant has an apparent case, to which the Respondent has an apparent defence. [42] In the circumstances, I find that it is not possible to make an assessment of the merits of the application. Fairness as between the Applicant and other persons in a similar position [43] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. [44] In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances. Consideration Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [45] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding: (a) the reason for the delay, being that the Applicant was awaiting his final payment; (b) the Applicant being aware of the dismissal at the time that it took effect; (c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application; (d) the absence of any prejudice to the employer; (e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and (f) no issue of fairness arising as between the Applicant and other persons in a similar position. -- 5 of 7 -- [2024] FWC 1293 6 [46] Briefly, to reiterate, 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.11 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.12 [47] The Applicant has not provided any compelling reasons that supports a position that the delay in filing was excusable or reasonable. [48] The decision to delay lodgment was the Applicant’s choice and that decision to delay while awaiting a potential response regarding his final payment was unnecessary. [49] Further, it appears the decision to lodge the application was only done in response to the issues with his final pay not out of any genuine dispute with the fact of his dismissal. [50] The Applicant has not otherwise provided any notable material in relation to the criteria considered by the Commission that would support a finding of exceptional circumstances. [51] In assessment of all the criteria, and upon review of the materials before me, I am not satisfied that there is anything in the current matter that rises to a level which would warrant a finding of exceptional circumstances. [52] The circumstances in the matter before me are not out of the ordinary course, unusual, special, or uncommon. [53] I note that, even if an extension of time were granted, the Commission does not have the power to make orders in relation to the remedy sought by the Applicant in his application form. [54] The Applicant may wish to consider seeking the assistance of the Fair Work Ombudsman who may be better placed to assist in resolving his payment grievances. Conclusion [55] Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances. [56] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. [57] The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect has been issued.13 -- 6 of 7 -- [2024] FWC 1293 7 COMMISSIONER Determined on the papers. Printed by authority of the Commonwealth Government Printer <PR775096> 1 [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 2 Ibid; [2015] FWCFB 1877. 3 [2018] FWCFB 901, [39]. 4 [2011] FWAFB 975, [13]. 5 Ibid. 6 [2018] FWCFB 901, [39]. 7 Ibid, [40]. 8 Ibid, [17]. 9 [2015] FWCFB 287, [12]. 10 [2011] FWAFB 975, [36]. 11 [2011] FWAFB 975, [13]. 12 Ibid. 13 [PR775097]. -- 7 of 7 --