Mr Dhaval Brahmbhatt v Sydney Tools Pty Ltd  FWC 1874 (31 July 2023)
This case revolves around Mr. Brahmbhatt’s appeal for an extension of time to lodge a general protections application under section 365 of the Fair Work Act 2009 (Cth) FW Act (FW Act), after his unfair dismissal claim was ineligible. The delay in filing was due to the employer’s refusal to provide written termination notice and Brahmbhatt’s lack of legal expertise.
In accordance with the decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford  FCAFC 152, the Fair Work Commission (FWC) requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It was therefore necessary for the FWC to determine the jurisdictional issue if Mr Brahmbhatt’s application was to proceed further.
Sydney Tools, a Sydney-based retail company, employed Mr. Brahmbhatt as a salesperson in Adelaide from 17 April 2023 until his dismissal on 25 May 2023. During his employment, Mr. Brahmbhatt alleged two key issues: denial of requested work tools, and non-compliance with the General Retail Industry Award 2020 break requirements, both of which Sydney Tools disputed.
On 25 May 2023, Mr. Brahmbhatt was dismissed for alleged poor performance. During a meeting with management, he was asked to sign a termination letter, which he refused until he had consulted with HR. This letter was never sent to him, despite his request.
Following dismissal, Mr. Brahmbhatt corresponded with HR officer Mr. El-Beainy, expressing his belief that the dismissal was unfair, and requesting a formal letter of service and separation. After several emails and a phone call, he warned of potential action against the company if he did not receive any communication.
On 15 June 2023, realising it was the final day to take action following his dismissal, Mr. Brahmbhatt filed an unfair dismissal application under section 394 of the FW Act despite not having written confirmation of his termination.
He received his Employment Separation Certificate on 16 June 2023, stating he was terminated for unsatisfactory work performance. On 19 June 2023, the Commission informed him of potential ineligibility due to the minimum employment period requirement. After learning of the General Protections provisions of the FW Act, Mr. Brahmbhatt discontinued his unfair dismissal claim and made a general protections application, alleging unlawful dismissal for exercising workplace rights.
Section 365 FW Act allows an individual or a representing industrial association to apply to the Fair Work Commission (FWC) to address a dismissal dispute if they allege the dismissal contravened Part 3-1 of the FW Act.
Section 366 specifies a 21-day time limit to file such applications after the dismissal took effect, which can only be extended if the FWC is convinced of exceptional circumstances. Factors for this consideration include the reason for the delay, any actions taken to dispute the dismissal, potential prejudice to the employer caused by the delay, the application’s merits, and fairness to the individual and others in similar situations.
Mr. Brahmbhatt’s application, stating it is not out of time, is incorrect as his dismissal took effect on 25 May 2023, and the application was made five days late. To proceed, he must demonstrate “exceptional circumstances” under section 366(2).
The burden of proof for establishing “exceptional circumstances” to grant an extension of time lies with the applicant, and the threshold for this proof is high. In accordance with the authority in Nulty v Blue Star Group Pty Ltd, the term “exceptional circumstances” pertains to situations that are unusual, special, uncommon, and outside the ordinary course. This could comprise a singular exceptional matter, a combination of exceptional factors, or an aggregate of ordinary factors that become exceptional when combined. It’s important to note that these circumstances do not necessarily have to be unique or unexpected. These principles from the Nulty case are applied when considering each factor under section 366(2) of the FW Act.
Mr. Brahmbhatt sought an extension of time for his general protections application due to several factors. He argued that he was not given a dismissal letter or written confirmation despite multiple requests. He initially filed an unfair dismissal application within 21 days, being unaware of the minimum employment obligation, or his ineligibility for this claim, due to his unfamiliarity with legal matters. Once informed of his mistake, he immediately made the current application. He emphasised that the Employment Separation Certificate was only provided on the twenty-second day after dismissal, and insisted the employer was not disadvantaged as the current claim rests on the same facts as the initial one.
Sydney Tools, on the other hand, argued that the application was out of time and there was no cause for extension since the circumstances were not exceptional. They point out that Mr. Brahmbhatt waited until the last permissible day to challenge the dismissal, thereby risking an error leading to a late application. They asserted that ignorance of the law is an unacceptable reason for delay, and that the Employment Separation Certificate, which contains no more information than Mr. Brahmbhatt received at dismissal, was not needed to apply on time.
Reason for delay (s 366(2)(a))
The delay period was the five days between 16 and 20 June 2023. Mr Brahmbhatt explained this delay by saying he wasn’t given written confirmation of the dismissal despite requests, and he was unaware of his eligibility to make an unfair dismissal application due to lack of legal expertise. He made the unfair dismissal application within the 21-day period, and as soon as he learned of his error, he lodged the current application within 24 hours.
The court finds it reasonable for an employee to wait for written confirmation of dismissal before taking action, and the lack of such written notice from the employer is viewed as unreasonable conduct. This unreasonableness and the subsequent error borne of ignorance of statutory eligibility rules, are the reasons for the delay, which the court finds as weighing materially in favour of exceptional circumstances.
Action taken to dispute dismissal (s 366(2)(b))
Mr. Brahmbhatt filed his unfair dismissal application on 15 June 2023, showing clear action to dispute his dismissal. He also gave the employer prior notice of his intent to take action. This is seen as another factor that weighs in favour of exceptional circumstances.
Prejudice to the employer (s 366(2)(c))
The court recognises that an employer is entitled to arrange its affairs without the expectation of claims after the lodgement period, unless in exceptional circumstances. Extending the time could incur time and cost for the employer, but this is not considered unique. Given that Mr Brahmbhatt was ineligible to make the unfair dismissal application and a different proceeding had to be instituted, this factor was seen as neutral.
Merits of the application (s 366(2)(d))
The hearing would consider if Mr Brahmbhatt was dismissed for an unlawful reason, requiring further evidence. It is premature to express a view on this factor, which was seen as neutral.
Fairness between persons in similar position (s 366(2)(e))
This is not considered a relevant factor in this case.
The commission held that the overall circumstances for late lodgement are exceptional. The lack of written notice of dismissal despite requests, the genuine desire to challenge the dismissal, and the swift action to file a general protections claim once advised of the unfair dismissal ineligibility, are the decisive considerations. These considerations override the error made out of ignorance. The discretion to extend time is deemed appropriate.
As time for late lodgement has been extended, the commission held that the application C2023/3585 should proceed to conciliation and the Commission will exercise its powers under s 368 of the FW Act.