Adrian Turano v Glenvill Pty Ltd

[2020] FWC 5146

[2020] FWC 5146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Turano
v
Glenvill Pty Ltd
(U2020/11909)

DEPUTY PRESIDENT YOUNG MELBOURNE, 24 SEPTEMBER 2020

Application for an unfair dismissal remedy – application filed out of time – application dismissed.

[1] This decision concerns an application by Mr Adrian Turano for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act).

[2] Mr Turano’s employment with Glenvill Pty Ltd (Respondent) was terminated with effect from 13 July 2020. The unfair dismissal application was lodged on 3 September 2020.

[3] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to section 394(3). The period of 21 days ended at midnight on 3 August 2020. The application was therefore filed 31 days outside the 21 day period. Mr Turano seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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.2

[5] The requirement that there be exceptional circumstances before time can be extended under section 394(3) contrasts with the broad discretion conferred on the Commission under section 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.

Reason for the delay

[8] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any 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 of the circumstances must be considered. 3

[9] Mr Turano’s employment was terminated on the ground of redundancy in a telephone call on 13 July 2020. His termination was confirmed in an email later that morning, which also confirmed that a termination letter would be sent shortly with his final termination pay. A redundancy letter was subsequently sent to Mr Turano by email on 15 July 2020. 4

[10] Mr Turano says that following his dismissal his mental health “took a dip” and he was extremely stressed, not thinking clearly and his sleep patterns were “all over the place”. 5 He says that due to the economic climate and effects of COVID-19, finding another job has been extremely difficult. He says that as a result of this, as well as losing his job and income, he has been suffering from anxiety which has impacted his quality of life and day-to-day functioning. He says that he has suffered a number of symptoms as a result of this anxiety including “physical, psychological, and behavioural symptoms.”6 Mr Turano says that these symptoms led to him being “completely shut down” and unable to seek help in relation to his dismissal.7 Mr Turano says that he now feels as though his psychological symptoms have subsided such that he is able to consider the termination of his employment.8

[11] At hearing, under cross examination, Mr Turano said that since his employment was terminated, he has applied for approximately 20 jobs, five to 10 in the month immediately following his dismissal and five to 10 in the month after that. Mr Turano conceded that he had no difficulty in applying for jobs or attending job interviews. In response to a question from the Bench, Mr Turano said that he attended a job interview and spoke to two recruitment agencies around the end of July and beginning of August. When asked in cross examination why he was able to apply for jobs and attend interviews, however not able to lodge an unfair dismissal application, Mr Turano said that he had a need to meet financial commitments such as bills and a mortgage. Further, he said that he had no sense of self-worth and accordingly, did not feel that he could or should be questioning a large company over his redundancy.

[12] Mr Turano also says that he was unaware of the redundancy process. 9 He says that after speaking to friends, family and seeking legal advice he came to the view that his redundancy was not genuine. He says that he sought legal advice regarding his dismissal and also contacted JobWatch for advice on the matter.10 At hearing, Mr Turano said that he sought legal advice toward the end of July/beginning of August and contacted JobWatch around the second week of August. Mr Turano also says that he used the Commission’s website “vigorously” to build his case.11 At hearing, Mr Turano said he conducted this research at approximately the same time that he contacted JobWatch.

[13] Ido not consider Mr Turano has provided an acceptable or reasonable explanation for the delay. Firstly, whilst I accept that Mr Turano was anxious and stressed following his dismissal, this is a common reaction to the loss of one’s employment and income, and even more so given the particular circumstances currently being experienced in Victoria. It is not unusual, special or uncommon. Secondly, Mr Turano filed no medical evidence to support his asserted mental health conditions and indeed, his evidence was that he did not consult a doctor in relation to his anxiety or its asserted symptoms. 12 Accordingly, there is no probative evidence before the Commission that Mr Turano suffered from any of the mental health conditions asserted by him, nor that those conditions in any way precluded him from lodging the application in time or at any time prior to 3 September 2020. Thirdly, on Mr Turano’s own evidence he was able to apply for jobs in the months following his termination, attend job interviews, seek legal advice from two sources and “vigorously” use the Commission’s website to build his case. It is difficult to see how Mr Turano had sufficient capacity to undertake these tasks but not to lodge the application in time or at any time before 3 September 2020. It is also difficult to reconcile Mr Turano’s ability to undertake these tasks with his evidence that he completely shut down and was unable to seek help in relation to his dismissal. Further, I note that notwithstanding seeking legal advice in late July/early August and contacting JobWatch in mid August Mr Turano did not lodge the application until 3 September 2020. Finally, as to Mr Turano contention that he was unaware of the redundancy process, it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement.13

[14] In these circumstances, I do not consider that Mr Turano has provided an acceptable or reasonable explanation for the delay in lodgement of the application. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

[15] Mr Turano was notified of the dismissal on the same day that it took effect via telephone and email and therefore had the full period of 21 days to lodge the unfair dismissal application. This weighs against a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

[16] Mr Turano’s evidence at hearing was that he did not take any action to dispute the dismissal. This weighs against a conclusion that there are exceptional circumstances.

Prejudice to the employer

[17] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would weigh in favour of the grant of extension of time. I consider this to be a neutral consideration in the present case.

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 Act nonetheless requires me to take into account the merits of the application in considering whether there are exceptional circumstances. At hearing Mr Turano submitted that the application has “serious merit”. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed. I do not repeat them here save to say that Mr Turano contends that his redundancy was not genuine, in response to which the Respondent says that Mr Turano’s employment ended due to redundancy as a consequence of operational changes required due to COVID-19 and that his duties have been distributed amongst other employees. Having examined the materials filed, it is evident to me that the merits of the application turn on contested points of fact which would need to be fully tested under oath. In these circumstances it is not currently possible to make any firm or detailed assessment of the merits. Mr Turano has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the application to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[19] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[20] Having regard to the matters I am required to take into account under section 394(3), and all of the matters raised by Mr Turano, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. As I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under section 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

A Turano on his own behalf.

M Caldwell for the Respondent.

Hearing details:

2020.
Melbourne (by telephone):
September 23.

Printed by authority of the Commonwealth Government Printer

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 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 4   Statutory declaration of Adrian Turano at [5-6]; Email chain dated 13 – 15 July 2020 filed by Adrian Turano

 5   Form F2 Application, q.1.5

 6   Statutory declaration of Adrian Turano at [11-14]

 7   Ibid at [15]

 8   Ibid at [17]

 9   Form F2 Application, q.1.5

 10   Ibid

 11   Ibid

 12   Statutory declaration of Adrian Turano at [16]

 13   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975