Fair Work Act 2009
s.394—Unfair dismissal

Harpinder Singh
v
Vincent Refrigerated Logistics Pty Ltd
(U2022/1422)

Application for an unfair dismissal remedy – extension of time – exceptional circumstances found, extension granted

[1] Mr Harpinder Singh (the Applicant) was employed by Vincent Refrigerated Logistics Pty Ltd (the Respondent) from June 2014 until his employment ended on 11 January 2022.

[2] Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3).

[3] The period of 21 days ended at midnight on 1 February 2022. Mr Singh’s application was lodged one day late on 2 February 2022.

[4] In order for the application to proceed, Mr Singh requires the Commission to grant a further period of time within which to bring his application.

[5] This issue was dealt with at a hearing on 21 February 2022. The Respondent was required to but has not filed any response to Mr Singh’s unfair dismissal application. The Respondent was also invited to but elected not to file any material in relation to the extension of time. Out of an abundance of caution, attempts were made to telephone the Respondent at the time of the hearing however these were unsuccessful. Mr Singh gave evidence in support of his application. Accordingly, the application has been determined on the basis of the evidence provided by the Applicant.

Extension of time

[6] Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”. 1

[7] In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

•  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 (including prejudice caused by the delay),

•  the merits of the application, and

•  fairness as between the person and other persons in a similar position.

Relevant factors

Reason for delay

[8] The Act does not specify what reason for delay might justify granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any 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 of the circumstances must be considered. 2

[9] Mr Singh’s evidence is that that he enjoyed a good working relationship with Andrew Vincent, one of the owners of Vincent Refrigerated Logistics. However, after his son (Christopher Vincent) became involved in the business, he experienced problems and was subject to verbal abuse from Christopher Vincent. On the day his employment ended, after the Applicant explained that the employees couldn’t complete certain work in the time proposed, Christopher Vincent started swearing at him in front of the other employees and Andrew Vincent. The Applicant said to Andrew Vincent that he couldn’t work there anymore and would give 2- or 4-weeks’ notice. Hearing this, Christopher Vincent physically pushed him, causing the Applicant to fall down. The Applicant was then confined, along with Andrew Vincent, in an office until Springvale Police officers attended. Christopher Vincent then told the Applicant to ‘get out’ and that he was ‘fired’.

[10] Mr Singh’s explanation for the delay in making an application was that he was going through a lot of mental stress due to the abuse and the humiliation he suffered and that he was in shock at the way he had been treated by his employer after nearly a decade of hard work.

[11] Further, he did not initially intend to make a claim as he trusted Andrew Vincent to pay him his rightful entitlements (long service leave, annual leave and notice). Mr Singh provided emails dated 16 and 30 January 2022 that indicate that Andrew Vincent had indeed advised him that his entitlements would be paid, but never did so. The Applicant’s entitlements upon termination remain unpaid.

[12] By the time the Applicant stopped believing Andrew Vincent, and thought of and made an unfair dismissal application, it was 22 days after the employment ended. This is one day after the required period of 21 days.

[13] As the Full Bench in Shaw v ANZ Bank 3 observed, the loss of employment is a serious event in a person’s life, and it is not unusual to react with stress, shock, confusion and similar conditions. Such responses and consequences are not unusual. However, in this case the Applicant’s reaction was not simply a reaction to losing his employment. It was exacerbated by the abuse and humiliation he was subjected to by Christopher Vincent, culminating in a physical assault and the calling of Police to assist. These additional factors are highly unusual. Further, the Applicant was assured on two occasions that he would be paid his lawful entitlements. These assurances were given to him by Andrew Vincent, with whom he had a good relationship and therefore no reason to distrust. The combination of these two factors, to my mind, are highly unusual and constitute exceptional circumstances.

[14] Whilst finely balanced, I am satisfied that Mr Singh has provided a credible and reasonable explanation for the delay in lodging his application, resulting in it being lodged one day outside the prescribed time limit. This weighs in favour of granting an extension of time.

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

[15] Mr Singh had the benefit of the full 21-day period to lodge his application.

Any action taken by the person to dispute the dismissal

[16] Mr Singh pursued the payments he was entitled to upon the cessation of his employment and received assurances that they would be paid. I have treated this as a neutral consideration in this case, as Mr Singh was querying payment of entitlements rather than disputing the dismissal.

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

[17] There was no evidence of any prejudice to the Respondent if Mr Singh was allowed additional time to bring his claim. The Respondent neither attended the hearing nor filed a response to Mr Singh’s application. I have treated this as a neutral consideration.

Merits of the application

[18] I am required to consider the merits of the application, however especially in cases such as this one where the Respondent has not filed any response or other material, it is not possible to conduct a detailed consideration of the substantive merits of the application.

[19] On the limited material before me at this point in time, in many respects it appears that the Applicant has a strong case on the merits. However, the Applicant also faces a potential barrier to succeeding in his claim. It may be that Mr Singh will ultimately be found not to have been dismissed by the Respondent within the meaning of the Act because he resigned. If that were so, he may still have been unfairly dismissed by the Respondent during his notice period. These issues would need to be determined after hearing detailed evidence. In the circumstances I treat this as a consideration that weighs against extra time being allowed.

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

[20] This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. No matters were raised that invoke this consideration, and I have treated it as neutral in this case.

Conclusion

[21] Having regard to the matters I am required to take into account under s.394(3) of the Act, and all of the matters raised by the Applicant, I am satisfied that there are exceptional circumstances, when considered collectively. Having found that there are exceptional circumstances, I am satisfied that it is appropriate to grant an additional day for Mr Singh to make his unfair dismissal application, to 2 February 2022.

[22] The application will shortly be listed for further proceeding.

COMMISSIONER

Appearances:

H Singh, Applicant.

Hearing details:

2022
Melbourne (by video)
February 21.

Printed by authority of the Commonwealth Government Printer

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 1   Nulty v Blue Star Group (2011) 203 IR 1 at [13].

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

 3   (2015) 246 IR 362.