DECISION

Fair Work Act 2009
s.394—Unfair dismissal

George Ittyerah
v
Coles Supermarkets Australia Pty Ltd
(U2019/8982)

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances

[1] Mr George Ittyerah was employed by Coles Supermarkets Australia Pty Ltd (Coles) until his employment was terminated on 23 July 2019.

[2] On 14 August 2019, Mr Ittyerah made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he had been unfairly dismissed by Coles. His application was made one day outside the 21 day period prescribed by the Act.

[3] The matter was listed for hearing on 28 October 2019 to determine whether Mr Ittyerah should be granted an extension of time pursuant to s.394(3) of the Act to make his application. At the hearing, Mr Ittyerah appeared on his own behalf and Mr D Proietto of Lander & Rogers Lawyers appeared, with permission, for Coles.

[4] Prior to the hearing, Mr Ittyerah filed lengthy written submissions and supporting documents in support of his application to extend time. I have given careful consideration to all of the material he has filed in determining whether to extend time for him to make his application.

[5] Section 394(3) of the Act provides:

(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:

(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.

[6] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if the Commission is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances rests with the applicant.

[7] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[8] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[9] Mr Ittyerah put forward a number of reasons for the delay in filing his application. Primarily these reasons involved needing to prioritise his preparation for two upcoming examinations, and the complexity of his application.

[10] Mr Ittyerah gave evidence that he is qualified to practice as a legal practitioner in India. To become qualified in Australia, he is undertaking the Diploma in Law Course administered by Legal Profession Admission Board. The material provided by Mr Ittyerah indicated that the two examinations were scheduled to take place on 2 and 4 September 2019.

[11] Mr Ittyerah submitted that his preparation for his examinations involved a significant amount of effort. If he did not put in the necessary effort and pass his exams, he would incur significant additional costs in having to re-enrol in the same subject and delay the completion of his course. Given the importance of the examinations, his priority was to prepare for those examinations before turning his attention to the preparation and lodgement of his unfair dismissal claim. Mr Ittyerah also contended he needed to prioritise his examinations because his cost of living would be affected if he did not pass his exams, as this would delay his admission as a legal practitioner in Australia. Further, he said that passing his examinations was a benchmark of his capacity and competence, which was essential in determining whether he was a fit and proper person to be admitted to the legal profession.

[12] Mr Ittyerah submitted that because of his personal circumstances, and his state of mind due to those circumstances, it was critical that he successfully passed his examinations. He was therefore compelled to prioritise his study before working on his unfair dismissal application. The personal circumstances included financial difficulties and the psychiatric injury he suffered during his employment with his previous employer.

[13] In terms of Mr Ittyerah’s contention that his delay was in part due to a psychiatric injury, he acknowledged he could not rely on the injury without medical evidence, but suggested that a ‘statement of symptoms’ could be relied upon. Mr Ittyerah submitted that his symptoms included that he found it challenging to engage with people who had previously acted in a hostile or unreasonable manner towards him. He said his symptoms affected his ability to study or function normally.

[14] Mr Ittyerah claimed that his application is complex and submitted the following:

“Coles has created a set of business records that ostensibly shows a series of disciplinary proceedings conducted against the applicant with warnings of escalating severity which finally resulted in a termination. Therefore, the applicant’s case could only be established by challenging the entire series of disciplinary proceedings commenced against applicant on grounds of breach of contract (specifically, implied terms in contracts) or grounds (which can only be established by examination of Coles staff) of bad faith and deceit. These disciplinary proceedings spanned over the course of a year and involved numerous facts which relate to the content of these disciplinary proceedings.

Therefore, the application was complex. The applicant had to rely on publicly available resources and books obtained from the University of Sydney Law Library to ensure that he had an adequate case prior to making the application for unfair dismissal.”

[15] In reply, Coles submitted that Mr Ittyerah failed to identify any acceptable or reasonable explanation for the delay in lodging his application. The reasons put forward by him are no way exceptional and do not in any way justify or properly explain his delay in making his application.

[16] In particular, Coles argued that:

•  Mr Ittyerah was aware of a legislated timeframe within which he needed to make his application;

•  The delay was entirely of his own making. There was no error, misinformation, misunderstanding of the law or inability to obtain legal advice.

•  He made a conscious decision to prioritise his studies over filing his application within the statutory timeframe.

•  The examinations to which Mr Ittyerah chose to prioritise were held on 2 and 4 September 2019, which is approximately three weeks after the date by which his application was required to be filed, being 13 August 2019. It follows that the delay could have been avoided by reasonable time management.

[17] Coles submitted that the Commission’s application form for an unfair dismissal claim is in accessible format which facilitates and supports prospective applicants to lodge an application, such that complexity is not a prohibiting factor in ensuring that it is made within time.

[18] Coles further submitted that Mr Ittyerah is a legal practitioner qualified in India with over 16 years’ experience and must have appreciated the jurisdictional implications of failing to lodge an application within the statutory timeframe, irrespective of whether or not it was complex.

[19] Having considered all the evidence and submissions before me, I am not satisfied that Mr Ittyerah has provided an acceptable explanation for the delay.

[20] It is not in dispute that Mr Ittyerah was aware of the prescribed time period within which his application is required to file. He was poised to challenge his dismissal from an early date. He made a conscious decision to file on 14 August 2019, being one day outside the prescribed period. Mr Ittyerah put forward extensive details of his personal circumstances which he claimed made it critical that he prioritise his examinations. Whilst I have no reason to doubt the importance to Mr Ittyerah of successfully completing his studies, the two examinations in question were held on 2 and 4 September 2019, more than two weeks after Mr Ittyerah lodged this application on 14 August 2019. Contrary to his contention, the fact that Mr Ittyerah filed his application on 14 August, being 18 days before he was required to sit for the first examination, has demonstrated no basis for the delay caused by the examinations.

[21] I do not accept that the delay was caused by a medical condition. Apart from there being no medical evidence to support this claim, Mr Ittyerah’s submissions, while lengthy, simply said that his symptoms included “difficulty to do activities that require thought and may occasionally manifest as anger.” There was nothing in his evidence or submissions that suggested he was incapacitated to an extent that he was unable to make his application within time. The fact that he was able to continue to study for his exams supports a view that any medical condition he may have did not impact on his ability to complete his application.

[22] Further, I do not accept Mr Ittyerah’s contention that the complexity of his application is an acceptable explanation causing the delay. Given Mr Ittyerah’s legal qualification, I do not find the application subsequently filed by him is in any way complex.

[23] I therefore find this factor weighs against a finding that there are exceptional circumstances.

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

[24] There is no dispute that Mr Ittyerah was aware of his dismissal which took effect on 23 July 2019. In fact, he wrote an email to the Area Manager of Coles on 22 July 2019, the same date he learnt of his dismissal, in the following terms:

“Dear Allan,

Thank you for the letter. I will file an appropriate action with the Fair Work Commission within the statutory time frame seeking reinstatement and back pay.

Kind regards,

George.”

[25] Mr Ittyerah submitted that this factor is contemplated to ensure that persons are not disadvantaged by a lack of knowledge of their dismissals and to ensure that the Commission can make a finding of ‘exceptional circumstances’ where there is no knowledge of the dismissal. His awareness and knowledge of the dismissal cannot weigh against a finding that no exceptional circumstance exists.

[26] In Woolworths Limited v Lin 2 (Lin), the Full Bench considered an analogous submission and made the following observations about whether awareness of the dismissal leads to a neutral consideration:

“… This analysis assumes, wrongly, that the consideration can only weigh in one direction. ... On the facts before the Commissioner, Ms Lin became aware of the dismissal the day after it took effect. Ms Lin therefore had a full 20 days within which she could have lodged her application before time to do so would elapse. Just as learning of one’s dismissal shortly before time elapses or at a time after it has elapsed will usually weigh in favour of an applicant for an extension of time, the consideration will likely weigh against an applicant if the applicant learns of the dismissal a time proximate to the date on which it took effect. This is because an applicant would not be deprived of the opportunity to lodge an application within time because of an absence of knowledge that the dismissal had taken effect. In the circumstances of this case, by concluding that the consideration was neutral and thereby assigning it no weight, the Commissioner erred in not taking into account a consideration that was relevant.” 3

[27] I adopt the approach of the Full Bench in Lin.

[28] Given it is clear Mr Ittyerah was aware of his dismissal when it took effect, I find this factor weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[29] Mr Ittyerah did not take any action to dispute his dismissal until this application was lodged. This weighs against a finding that there are exceptional circumstances.

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

[30] I am not persuaded that granting an extension of time would result in a prejudice to Coles given the short delay. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I therefore find this factor to be a neutral consideration.

The merits of the application

[31] For the purpose of determining whether to grant an extension of time for Mr Ittyerah to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’⁴

[32] In Miller v DPV Health Ltd 5, Deputy President Colman, in considering this criterion, said:

“[27] The merits of the application turn significantly on contested points of evidence that would need to be tested in cross-examination if an extension of time were granted and the matter were to proceed. Much would depend on findings of fact and assessments of witness credibility. It is not possible to make any firm or detailed assessment of the merits. However, my preliminary view is that Ms Miller’s application is not without merit. She has at least an arguable case that her misconduct was not substantiated and that her dismissal was not for a valid reason and unfair. Equally however, the company has a reasonable prima facie defence to the claim, namely that the misconduct was established to the requisite standard of proof and that the dismissal was not unfair in all the circumstances. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell for or against an extension of time. I consider the merits to be a neutral consideration.” 

[33] The same can be said about this matter.

[34] Mr Ittyerah was terminated for alleged performance and conduct issues: failing to perform to the required standard of his position; repeatedly refusing to follow lawful and reasonable directions including failure to attend meetings with his line manager and to attend a medical assessment; and directing foul language towards his manager. Mr Ittyerah denied the allegation of performance issues or otherwise argued that some of the issues raised were of ‘trivial’ nature and did not justify any disciplinary action. He further argued that the directions that he failed to follow were unreasonable.

[35] Coles argued that it has a meritorious case, being that Mr Ittyerah was terminated for failing to improve is performance and engaging in misconduct. It submitted it afforded Mr Ittyerah a fair disciplinary process, including by providing him with an opportunity to respond and notifying him of the reasons for his dismissal.

[36] In the circumstances of this matter, I am unable to make an assessment of the merits in the absence of tested evidence. I therefore find the merits to be a neutral consideration.

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

[37] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm⁶ considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’⁷

[38] I do not consider that there are other relevant persons in a similar position to Mr Ittyerah. I therefore find this factor to be a neutral consideration.

Conclusion

[39] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an extension of time to Mr Ittyerah. Mr Ittyerah’s circumstances were not out of ordinary, unusual or uncommon (individually or when considered together), and therefore not exceptional. On this basis, the application is dismissed.

[40] An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:
G Ittyerah on his own behalf.
D Proietto, for Coles Supermarkets Australia Pty Ltd.

Hearing details:
Sydney (By telephone).
2019:
October 28.

Printed by authority of the Commonwealth Government Printer

<PR713740>

1 [2011] FWAFB 975.

 2   [2018] FWCFB 1643.

 3   Ibid at [68].

4 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 5   [2019] FWC 3979.

6 [2015] FWC 8885.

7 Ibid at [29].