Adam Badolato v AMR Motors Pty Ltd

[2015] FWC 8968

[2015] FWC 8968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Adam Badolato
v
AMR Motors Pty Ltd
(C2015/7076)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 24 DECEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 26 October 2015 Mr Adam Badolato (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by AMR Motors Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 22 April 2013. He was employed within the service department of the Respondent’s dealership in Petersham, Sydney. He says that he received an email demoting him on 28 September. He saw it on 29 September and resigned on that day. The alleged dismissal took effect on that day.

Alleged Contravention

[3] The Applicant says that he had no choice but to resign because he had been demoted from Assistant Service Manager to Service Consultant.

The Applicant had medical problems during August 2015 which meant some absences from work. There were also a couple of counselling sessions about his work performance during that time. Nevertheless, the Respondent’s email of 28 September came as a surprise to the Applicant. He was in hospital from 30 September to 13 October because of pancolitis.

[4] A breach of s.352 of the Act is alleged. The Applicant submits that his demotion was a result of his absence on sick leave. The demotion then forced him to resign.

Respondent’s Submissions

[5] The Respondent denies that it forced the Applicant to resign. It submits that the demotion was necessary because of the issues with the Applicant’s performance. It outlined these in some detail together with the counselling sessions with the Applicant in which his failure to deliver on key aspects of his role was dealt with.

[6] The Respondent submits that the Applicant resigned entirely voluntarily. Indeed, it provided a chain of emails in response to his resignation email, in which senior management sought to get him to change his mind.

[7] The Respondent denies that its action to demote the Applicant had anything to do with his medical condition.

Relevant Legislation

[8] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

Approach of the Commission

[9] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[10] On 6 November 2015, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 4 December 2015.

[11] The Applicant was self-represented. The Respondent was represented by Mr L. Bonnano and Mr P. Donato.

Matters to be taken into account pursuant to s.366(2)

[12] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[13] The Applicant’s explanation for lodging the application seven days out of time was ill-health. However, he was discharged from hospital on 13 October, based on his own evidence. There was ample time for him to file the application in time. There is no evidence that his medical condition prevented him from attending to such matters after his discharge from hospital.

[14] The reasons for delay cited by the Applicant fall well short of establishing exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[15] There is no evidence of the Applicant taking action following his resignation to assert that it was a dismissal until the application was filed. The Respondent’s representatives made an effort to persuade him to change his mind. A finding of exceptional circumstances is therefore not supported on this ground.

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

[16] Given the overall facts, the Respondent would be prejudiced by the time and cost involved in further litigation.

(d) The merits of the application

[17] The Applicant would need to establish, as a first step, that his resignation was a constructive dismissal. It is not clear that the employer’s action in demoting him gave him no option but to resign, especially given the attempts to get him to reconsider. In any event the Respondent has documented the reasons for the demotion based on the Applicant’s performance.

[18] I do not consider the merits of the application give weight to the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[19] This factor was not addressed and has not been taken into account.

Conclusion and Order

[20] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Adam Badalato under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

A. Badolato, self-applicant;

L. Bonnano and P. Donato for the Respondent.

Hearing details:

2015

Telephone Hearing:

December 4.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR575493>