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Fair Work Act 2009
s.394—Unfair dismissal
Dharun Prasad
v
Cordina Chicken Farms Pty Ltd
(U2019/2419)
DEPUTY PRESIDENT DEAN SYDNEY, 19 JULY 2019
Application for an unfair dismissal remedy – extension of time – extension granted.
[1] On 5 March 2019 Mr Dharun Prasad lodged an application pursuant to s.394 of the
Fair Work Act 2009 seeking relief for an alleged unfair dismissed by Cordina Chicken Farms
Pty Limited (Cordina).
[2] Mr Prasad’s application was made 7 days outside the 21 day period prescribed by
s.394(2) of the Act. The matter was listed by telephone on 10 July 2019 to determine whether
Mr Prasad should be granted an extension of time pursuant to s.394(3) of the Act. Both parties
were granted permission to be represented at the hearing. Mr D Potts of Kells appeared for Mr
Prasad and Mr D Collinge of Gillis Delaney Lawyers appeared for Cordina.
[3] 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.
[4] 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 it is satisfied that there are
[2019] FWC 4867
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 4867
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exceptional circumstances can it then exercise its discretion to extend time. The onus of
establishing exceptional circumstances is on the applicant.
[5] 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.”
[6] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[7] The submissions on behalf of Mr Prasad advanced three reasons for the delay, namely:
1. He was unaware of the 21 day time limit;
2. He was shocked and depressed after the dismissal; and
3. He was overseas for a period during the 21 day time period.
[8] Mr Prasad said that he had previously talked to his general practitioner about
difficulties he had with his employer. In support of this Mr Prasad provided two medical
reports, dated 12 May and 27 June 2019, from Dr Shekarchi of Hassall Grove Medical Centre.
Both reports referred to a visit by Mr Prasad on 2 February 2019 and stated that he expressed
feeling stressed and anxious due to work related issues.
[9] Mr Prasad said that he found it very difficult to cope after his dismissal, and he
travelled to Fiji (where he was born) on 17 February 2019. He returned to Australia on 21
February 2019.
[10] Mr Prasad said that he did not know that he could take action until he was told by a
friend in early March that he could speak to the Fair Work Commission.
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[11] Mr Prasad claimed that he first became aware that he could bring a claim for unfair
dismissal when he called the Commission on 5 March 2019 and he lodged the present
application on the same day.
[12] In response, Cordina argued that none of the reasons provided by Mr Prasad were
exceptional. It was submitted that Mr Prasad’s unawareness of the 21 day timeframe was no
excuse for the late lodgement of his unfair dismissal application. Further, the shock and
distress that Mr Prasad claimed to have experienced was not uncommon for people who have
been dismissed from their employment.
[13] As to the medical reports provided by Mr Prasad, it was argued that they only
indicated that he had complained of stress and anxiety prior to his dismissal and did not
record any symptoms being experienced post dismissal or record a diagnosis of any illness.
Whether the person first became aware of the dismissal after it had taken effect
[14] There is no dispute that Mr Prasad was advised of his dismissal on 5 February 2019.
Any action taken by the person to dispute the dismissal
[15] Mr Prasad took no action to dispute his dismissal until this application was lodged.
Prejudice to the employer (including prejudice caused by the delay)
[16] Cordina did not point to any prejudice caused by the delay.
The merits of the application
[17] For the purpose of determining whether to grant an extension of time for Mr Prasad to
file his application, the Commission does not require a detailed consideration of the
substantive case. In Kyvelos v Champion Socks Pty Limited2, the Full Bench of the Australian
Industrial Relations Commission dealing with similar provision of the Workplace Relations
Act 1996 said:
[14] In considering whether to accept an application which has been lodged outside
the time prescribed in s.170CE(7) the Commission may consider whether, on the basis
of the material relied on by the parties, the applicant has a sufficient case on the merits
although the discretion should be exercised having primary regard to the
circumstances which led to the late lodgement … It should be emphasised that in
considering the merits the Commission is not in a position to make findings of fact on
contested issues, unless evidence is called on those issues. Evidence is rarely called on
the merits and there are sound reasons why the Commission should not embark on a
detailed consideration of the substantive case in an application …
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[18] In Damien Haining v Deputy President Drake & Ors3 the Full Court of the Federal
Court said:
‘At the end of the day, the person exercising the discretion has to make an overall
judgment as to the appropriateness of extending the time. The extent and the cause of
the delay will usually be factors relevant to that judgment; so also will other matters
included in the summary, to the extent they apply to the instant case; and perhaps other
matters as well. The acceptability of the applicant’s explanation for delay cannot be
divorced from the effect of that delay on the respondent or other people. If a case
seems highly meritorious, that might legitimately persuade the decision maker to
accept the adequacy of an explanation that would not pass muster in a case of
little apparent merit.’ (emphasis added)
[19] Mr Prasad gave evidence in the form of a witness statement as to the matters that led
to his dismissal. He was not cross examined about his evidence.
[20] Cordina relied on two reasons for the dismissal: the first related to an email sent by Mr
Prasad to other employees, and the second related to a failure by him to report a safety breach
that involved another worker, at a time when Mr Prasad was not at the employer’s premises.
[21] The email was attached to Mr Prasad’s witness statement. Mr Prasad said he had not
been told about a change in the time the chicken processing would commence. He said other
employees were advised before him. The email sent to Mr Prasad from ‘Samir’ said: “Hi
Dharun, we tray (sic) to contact you but no answer se (sic) we called the hangers to start at
1am tomorrow”. In reply, Mr Prasad said: “Yes you did try to ring me but after you rang my
supervisors and my hangers, so get it right”.
[22] Having considered the contents of the email, it is difficult to see how this could form
any basis for his dismissal.
[23] In relation to the safety breach, it was not disputed that Mr Prasad was not involved in
the safety incident that led to his dismissal, and he was not on site at the time it occurred. Mr
Prasad’s evidence, which was not challenged, was that by the time he next attended the
workplace, the incident had already been reported. Accordingly, Mr Prasad could see no
reason why he needed to report it. This would seem a logical conclusion for him to draw.
[24] It was submitted on behalf of Mr Prasad that the merits of his application were strong
and that there was no valid reason for his dismissal. It was contended that Mr Prasad was a
long serving employee and other than one prior warning (the circumstances of which were
disputed) during his 25 year period of employment with Cordina, his employment history was
unblemished.
[25] On behalf of Cordina it was submitted that the merits of Mr Prasad’s claim were not
strong. It was argued that the matters leading to the dismissal concerned safety, and Cordina
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had carried out an investigation into the allegations against Mr Prasad and conducted two
interviews with him. Mr Prasad was afforded an opportunity to respond prior to his dismissal.
Fairness as between the person and other persons in a similar position
[26] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm4 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.’5
[27] Neither party suggested that there are other relevant persons in a similar position to Mr
Prasad.
Consideration
[28] In Stogiannidis v Victorian Frozen Foods Distributors P/L6, the Full Bench said:
[38] As we have mentioned, the assessment of whether exceptional circumstances
exist requires a consideration of all the relevant circumstances. No one factor (such as
the reason for the delay) need be found to be exceptional in order to enliven the
discretion to extend time. This is so because even though no one factor may be
exceptional, in combination with other factors the circumstances may be such as to be
regarded as exceptional.
[39] … each of the matters needs to be taken into account in assessing whether there
are exceptional circumstances. The individual matters might not, viewed in isolation,
be particularly significant, so it is necessary to consider the matters collectively and to
ask whether collectively the matters disclose exceptional circumstances. The absence
of any explanation for any part of the delay, will usually weigh against an applicant in
such an assessment. Similarly a credible explanation for the entirety of the delay, will
usually weigh in the applicant’s favour, though, as we mention later, it is a question of
degree and insight. However the ultimate conclusion as to the existence of exceptional
circumstances will turn on a consideration of all of the relevant matters and the
assignment of appropriate weight to each.
[29] Having considered all of the matters to which my attention is directed by the Act, I am
satisfied that there are exceptional circumstances which would warrant my granting an
extension of time. In this case it is a combination of Mr Prasad’s circumstances that support
such a finding. Mr Prasad had over 25 years of service with Cordina. The delay is a relatively
short period of seven days. There is a lack of prejudice to Cordina. While the evidence as to
merits is limited, on the facts not in contest which are set out above, I am satisfied that Mr
Prasad has a prima facie case that his dismissal was unfair.
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[30] Accordingly, an extension of time is granted. An order to that effect will be issued
with this decision.
DEPUTY PRESIDENT
Appearances:
D Potts for Dharun Prasad.
D Collinge, for Cordina Chicken Farms Pty Ltd.
Hearing details:
Sydney (By telephone).
2019:
July 10.
Printed by authority of the Commonwealth Government Printer
PR710278
1 [2011] FWAFB 975.
2 [2000] AIRC 540.
3 [1998] FCA 1168.
4 [2015] FWC 8885.
5 Ibid at [29].
6 [2018] FWCFB 901.
R OUMISSION THE FAIR THE SEALO
