1
Fair Work Act
2009
s.365—General protections
Harjit Singh
v
Trimatic Management Services Pty Ltd ATF the Trimatic Management
Services Unit Trust T/A TSA Group
(C2019/5288)
DEPUTY PRESIDENT YOUNG MELBOURNE, 11 NOVEMBER 2019
Application to deal with contraventions involving dismissal - extension of time.
[1] This decision concerns an application by Mr Harjit Singh under section 365 of the
Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute
involving dismissal. Section 366(1) requires that such an application be made within 21 days
after the dismissal took effect or within such further period as the Commission allows under
section 366(2).
[2] I find that the date that Mr Singh’s employment ended was 17 January 2019. His
application was lodged on 26 August 2019. Accordingly, the period of 21 days for lodgement
ended at midnight on 8 February 2019 and the application was therefore lodged 199 days out
of time. Mr Singh seeks that the Commission allow a further period of time for the application
to be made. The Respondent company opposes the grant of an extension of time.
[3] On 28 October 2019 I conducted the proceeding by way of determinative conference.
Mr Singh appeared on his own behalf. Ms Peggs appeared on behalf of the company.
Identity of the employer
[4] Mr Singh filed his application naming TSA Group, ABN: 45 410 223 210, as the
employer. The response filed by the company indicates that the correct name of the employer
is Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust
T/A TSA Group, ABN: 45 410 223 210. It was agreed by both parties at the determinative
conference that the correct name of the employer is Trimatic Management Services Pty Ltd
ATF the Trimatic Management Services Unit Trust T/A TSA Group. Pursuant to section 586
of the Act the application is amended to the extent that the true legal employer is correctly
identified.
Background
[2019] FWC 7729 [Note: An appeal pursuant to s.604 (C2019/7522) was
lodged against this decision - refer to Full Bench decision dated 4 February
2020 [[2020] FWCFB 553] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 7729
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[5] Mr Singh commenced employment with the company on 19 October 2018, in the
position of casual Inbound Service and Sales Consultant, working on behalf of HCF Health
Funds.1 The role entailed receiving inbound call from HCF customers to support customer
enquiries and account matters.2 The work was performed in a call centre environment. In his
Outline of Argument Mr Singh says that his dismissal took effect on 27 January 2019.3
However, at the determinative conference, Mr Singh conceded that he was verbally advised of
the termination of his employment on 17 January 2019 and that it took effect on that day.
Final written confirmation of the termination of his employment was, ultimately, provided to
Mr Singh on 29 January 2019.4 Accordingly, I find that Mr Singh’s dismissal took effect on
17 January 2019. Mr Singh’s evidence was that he is not a permanent resident or citizen of
Australia.
Consideration
[6] The Act allows the Commission to extend the period within which a general
protections application involving dismissal must be made if it is satisfied that ‘exceptional
circumstances’ exist. This establishes a high hurdle for an applicant.5
[7] The meaning of exceptional circumstances was considered by the Full Bench of what
was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,6 where it was noted that, in
order to be exceptional, circumstances must be out of the ordinary course, or unusual, or
special, or uncommon, although they need not be unique or unprecedented. The Full Bench
also noted that 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 can be considered exceptional.7
[8] Under section 366(2) of the Act, the Commission may allow a further period of time
for an application under section 365 to be made, if it is satisfied that there are exceptional
circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person 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 the person and other persons in a like position.
Reason for the delay
1 Letter of offer dated 18 October 2018, Exhibit R1 paragraph 2 at question 5.1
2 Exhibit R2 at question 1h
3 Exhibit A2 at question 1c
4 Exhibit R3
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [14]
6 [2011] FWAFB 975
7 At [13]
[2019] FWC 7729
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[9] The Act does not specify what reasons for delay might tell in favour of granting an
extension, however, decisions of the Commission have referred to an acceptable8 or a
reasonable explanation.9 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd the
Full Bench noted that the absence of an 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 the circumstances must be considered.10 The period of the delay to be
considered is the period commencing immediately after the time for lodging an application
has expired and ending on the day on which the application is ultimately made. However, the
circumstances from the date the dismissal took effect must be considered in assessing the
explanation for the delay.11
[10] In his materials12 and in his evidence at the determinative conference Mr Singh says
that following his dismissal he was depressed, stressed, anxious and mentally unwell. I accept
that Mr Singh was stressed following the termination of his employment. However, this is
both a common and understandable reaction. Mr Singh did not file any medical evidence in
support of his asserted depression, anxiety or mental illness, nor any evidence that this
prevented him from lodging the application in time.
[11] He says he had no money and was in financial distress, including resulting from a car
accident (and the costs associated with repairs of a replacement car which he purchased) and
because he had a student loan to pay off. However, Mr Singh provided no evidence in
support of this financial distress. Further, in my view, although regrettable, financial distress
following the termination of one’s employment and the consequent loss of income cannot be
said to uncommon or special or unusual.
[12] Mr Singh also says in his materials that he had to move house.13 However, he did not
give any evidence about this matter at the determinative conference. Mr Singh also says that
he had a heart attack in 2018, has a cardiac stent and takes medication which he is required to
pay for.14 At the determinative conference Mr Singh did not seek to rely upon this as a reason
for the delay; rather, as I understand it, this was provided as a further example of the expenses
Mr Singh had to meet, the financial stress he was under following his loss of employment and
income and the challenges he has faced since the termination of his employment.
[13] Mr Singh gave evidence that following the termination of his employment he searched
and applied for alternate employment, attended interviews and ultimately obtained alternate
employment in early March 2019. Unfortunately, Mr Singh says his employment in this new
role was terminated after two weeks (Second Termination). Since that time, Mr Singh’s
evidence was that he has continued to search for alternate employment and has applied for,
and attended interviews for, a number of roles. Further, Mr Singh also gave evidence that
since the termination of his employment he has done odd jobs for friends for money. If Mr
8 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, per Gostencnik DP at [9]
9 Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]
10 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]
11 See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v
Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
12 Exhibit A1 at question 1.4, Exhibit A2 at question 1d
13 Exhibit A2 at question 1d
14 Exhibit A2 at question 1i
[2019] FWC 7729
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Singh had sufficient capacity to search, apply for, obtain and attend work, and undertake odd
jobs for friends for money, it is difficult to see how he did not have sufficient capacity to
lodge the application in time.
[14] Finally, Mr Singh also says that he was unaware of his rights as a non-permanent
resident or citizen to challenge his dismissal.15 It is well established that ignorance of one’s
rights is not an acceptable explanation for late lodgement.16 Further, Mr Singh gave evidence
that sometime in March 2019, following the Second Termination, he accessed the Fair Work
Commission website to obtain information as to his rights to challenge that dismissal.
Accordingly, even if it is accepted that Mr Singh was not aware of his rights to challenge his
dismissal after his employment ended on 17 January 2019, it is difficult to see how it can be
said that after he accessed the Commission website in March 2019 he remained unaware of
his rights to challenge his dismissal after that time.
[15] Accordingly, in my opinion, Mr Singh has failed to provide an acceptable or
reasonable explanation for the delay in lodgement. This weighs against the granting of an
extension of time.
Action taken by the person to dispute the dismissal
[16] Mr Singh’s employment was terminated in a meeting on 17 January 2019. It is agreed
that at this meeting the company advised him of the deficiencies in his performance and he
was given an opportunity to respond to those matters. It is also agreed that he was told his
employment was at risk and may be terminated. In response to a question from Ms Peggs, Mr
Singh accepted that he did not dispute his dismissal. It is, however, agreed that on 5 April
2019 Mr Singh sent an email to the company (Email). The company says the Email did not
dispute Mr Singh’s dismissal; rather Mr Singh set out his personal and professional struggles
post termination of his employment with the company.17 The Email was not before the
Commission. However, although Mr Singh was unsure of when he sent the Email, he agreed
with the company’s characterisation of it. Accordingly, on the basis of the material and
evidence before me, I find that Mr Singh did not dispute his dismissal at the time of his
termination of employment or at any time thereafter prior to the lodgement of his application.
This weighs against the granting of an extension of time.
Prejudice to the employer
[17] The company submits that it will suffer prejudice. It says that the delay is significant
and further that it ought be entitled to arrange its affairs and utilise resources on the basis that
claims can no longer be made against it after the lodgement period for such claim has
expired.18 Whilst, I accept that is the case, as a general proposition, the Act clearly allows for
the acceptance of a claim after the lodgement period has expired in “exceptional
circumstances”. Although the delay is of some duration, I cannot identify any particular
prejudice that would accrue to the employer were an extension of time to be granted.
However, the mere absence of prejudice is not in itself a factor that would warrant the grant of
an extension of time. I consider this to be a neutral factor in the present case.
15 Exhibit A1 at 1.4
16 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975
17 Exhibit R1 at paragraph 2.6 of question 6.1
18 Exhibit R2 at question 1g
[2019] FWC 7729
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Merits of the application
[18] An application to extend time is essentially an interlocutory matter that does not allow
the merits to be fully tested. The merits are nonetheless a matter which I am required to take
into account in assessing whether there are exceptional circumstances.
[19] Mr Singh alleges that adverse action was taken against him in contravention of section
351 of the Act. Section 351 provides that an employer must not take adverse action against a
person who is an employee because of the person’s race, colour, sex, sexual orientation, age,
physical or mental disability, marital status, family or carer’s responsibilities, pregnancy,
religion, political opinion, national extraction or social origin. Mr Singh alleges that adverse
action was taken against him because of his “speaking ability”.19 His evidence as to this is
that he was terminated for speaking too fast, his difficulty in understanding customers and
repeatedly asking questions of customers. Mr Singh also alleges that the company’s actions
contravened section 344 of the Act, however he was unable to address me as to this.
[20] There is no dispute that the company dismissed Mr Singh. Accordingly, it is
uncontested that adverse action, in the form of dismissal, was taken against Mr Singh. The
company says, however, that it terminated Ms Singh’s employment because of, inter alia,
poor performance. It says despite training and one-on-one private coaching he was unable to
perform the inherent requirements of the role. In short, the company says Mr Singh’s
communication skills were inadequate to satisfactorily perform the role and he was the subject
of numerous poor customer satisfaction scores and complaints. Key deficiencies were his
speed of speech, his ability to communicate clearly with customers and his ability to
understand customers. It is also uncontested that on 11 January 2019 Mr Singh took a call in
which he breached a customer’s privacy and disclosed information contrary to instructions
detailed on the customer’s account. The company also says that in that call Mr Singh failed to
adhere to the escalation process. Mr Singh denies this.
[21] As to Mr Singh’s claim that his termination was in breach of section 351, speaking
ability or speaking too fast are not protected attributes under section 351. Further, as already
set out, Mr Singh was unable to address me as to how he says section 344 is engaged.
Accordingly, on the basis of the material before me Mr Singh’s claim appears to be weak.
This weighs against the granting of an extension of time.
Fairness as between the person and another person in a like position
[22] Applications to extend time generally turn on their own facts. The parties did not draw
my attention to any persons or cases that would be relevant in relation to the question of
fairness as between Mr Singh and other persons in a similar position. I consider this to be a
neutral consideration in the present matter.
Conclusion
[23] The time limit that applies to the exercise of a person’s right to bring an application
under section 365 reflects the Parliament’s intention that this right be exercised promptly. The
19 Exhibit A1 at question3.3, Exhibit A2 at question 1e and 1g
[2019] FWC 7729
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Act recognises that there are some cases where a late application should be accepted, namely
where there are exceptional circumstances.
[24] Having regard to all of the factors which I am required to take into account under
section 366(2), I am not satisfied that the requisite exceptional circumstances exist.
[25] Accordingly, I decline to grant an extension of time under section 366(2). Mr Singh’s
application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
H Singh on his own behalf.
Z Peggs for the Respondent.
Hearing details:
2019.
Melbourne and Perth (by video):
October 28.
Final written submissions:
Applicant, 23 September 2019
Respondent, 14 October 2019
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R WORK COMMISSION AUSTRALIA THE SEAL OF THE
