Albert Marcelletti v Australian Laboratory Services Pty Ltd
[2022] FWC 620
| [2022] FWC 620 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Albert Marcelletti
v
Australian Laboratory Services Pty Ltd
(C2021/8559)
| DEPUTY PRESIDENT MANSINI | MELBOURNE, 21 MARCH 2022 |
Application to deal with contraventions involving dismissal.
This decision concerns an application by Mr Albert Marcelletti (Applicant) for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Cth) (Act).
I have determined that the application was not filed within the statutory timeframe and, not being satisfied there are exceptional circumstances, the application is dismissed. The reasons for this decision follow.
Was the application made out of time?
Section 366(1) of the Act provides that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows having regard to the factors set out in s.366(2). It is not contentious that:
· The Applicant’s dismissal took effect on 15 November 2021; and
· This application was made on 14 December 2021.
Accordingly, the period of 21 days ended at midnight on 6 December 2021 and this application was lodged 8 days out of time. The Applicant asked the Commission to grant a further period for the application to be made under s.366(2). The Respondent opposed.
Are there “exceptional circumstances” having regard to the factors at s.366(2)?
Having concluded that this application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters of which I must be satisfied are set out at s.366(2) of the Act.
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. 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.[1]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.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.
Before turning to consider each of the matters set out at s.366(2), some important context about the materials before the Commission.
As Australian Laboratory Services Pty Ltd (Respondent) did not consent to an attempt at conciliation, a mention was convened and a program set for the filing of materials in advance of the hearing. The Commission’s directions: required the Applicant to file a witness statement and outline of submissions and any other documents on which he sought to rely by 4pm on 27 January 2022; and invited the Respondent (but not required) to file materials in response by 4pm on 3 February 2022. The parties were given guidance as to the task of preparing a witness statement and links to sources of information .[2] Prior to the hearing, the following materials had been filed:
a) By the Applicant:
· Email of 14 December 2021 attaching the original application, a termination letter dated 15 November 2021 and three photographs (.JPG files);
· Amended application filed 16 January 2022; and
· Response to late form F8 submission filed 27 January 2022.
b) By the Respondent:
· Submissions filed 18 January 2022; and
· Submissions filed 1 February 2022.
No witness statement was filed by either party.
At the hearing on 7 February 2021, the Respondent confirmed it was content for the Commission to receive the Applicant’s materials as the Applicant’s evidence in this matter. The Respondent elected to file submissions but no evidence in response.
Also at the hearing, the Commission queried whether the Respondent had filed an F8A Response which was “belated(ly)” filed later that day after conclusion of the proceedings.
On 14 February 2021, the Applicant sought to file further materials purportedly in response to the Respondent’s “belated” F8A Response in the form of an email submission and 5 attachments. The Respondent was afforded an opportunity to test this new material but opposed the Commission’s receipt of any new material. In all of the circumstances, I have decided to receive the further materials filed after the hearing with some caution (as indicated below).
Reason for the delay – s.366(2)(a)
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 an applicant’s favour, however all of the circumstances must be considered.[3]
The Applicant’s primary reason for his delay was that he filed the wrong application, on “incorrect” advice from the Commission but within the statutory timeframe. In this respect, the following facts are not contentious:
a) At 11.56pm on 6 December 2021, the Applicant filed an application for the Commission to deal with a general protections dispute not involving dismissal (a Form F8C).
b) At 9.58am on 7 December 2021, the Commission contacted the Applicant on his nominated telephone number but he could not be reached and a voice message was left.
c) At around 9.25am on 8 December 2021, the Applicant contacted the Commission by telephone and in discussion with a Commission staff member it was identified that he had completed an incorrect application form because he was no longer employed. During that phone call, the Applicant withdrew his F8C (non-dismissal dispute) application.
d) At 1.18am on 14 December 2021, the Applicant filed this application for the Commission to deal with a general protections dispute involving dismissal (a Form F8A).
The Applicant offered additional reason(s) for the delay which, as at the time of the hearing, may be summarised as:
a) Incorrect advice provided by the Commission, to the effect that the Applicant should file an F8C (non-dismissal dispute) application (times and dates not specified) and subsequently in the telephone conversation with a Commission staff member on 8 December 2021 “was now advised to fill in an F8 form and … to put in a notice of discontinuance”.
b) Circumstances of the COVID-19 pandemic, specifically that this caused delays in “every aspect of work and life style” but relevantly to accessing advice (times and dates not specified).
c) Tried to seek free legal advice to no avail (he had an appointment scheduled for 30 November 2021 which was delayed until 4 December 2021).
d) Tried to call his union delegate and was told that he basically had no case, because he had not completed the 6-month probation period, and there was nothing much that could be done (times and dates not specified).
e) Found some casual work around 2 December 2021 and job searches took up plenty of his day time given his age (54 years) and shortage of available sampling work.
f) Found it time consuming and complicated to navigate the Commission website and find out whether there was any possible cause of action.
In response to a question at the hearing, the Applicant said that the reason for his delay in the 6-day period after the withdrawal of his original application on 8 December 2021 and prior to filing this application on 14 December 2021 was: he wanted to make sure everything was right and had phoned around some community and legal services, phoned the Commission, had to check some facts and was also doing some casual work which he did not want to miss out on.
The new materials filed after the hearing included an email which stated a belated recollection of two medical / dental appointments (one being a tooth removal), during this 6-day period. There was no medical or other evidence attached in support of this contention.
The new material also included an email which stated that the Applicant has had much trouble sleeping, his good mental health was slowly deteriorating as he was trying to make sense of why he was terminated from his job and was particularly affected when he saw his former role re-advertised. There was no medical or other evidence attached in support of this contention.
Even if it could be established that the Applicant received incorrect advice or did not receive the necessary information to complete the correct (F8) application form, the Form F8C document that the Applicant originally completed and lodged on 6 December 2021 on its face provided the necessary guidance. Specifically, on the first page of that document are the words “General protections application not involving dismissal” (bold and in large font) and, under the heading “Who can use this form”, an explanation that it is for a general protections dispute not involving dismissal. The first page of that document also points to the correct form (F8) if the general protections dispute relates to dismissal. The Applicant has also acknowledged in his written submissions and before the Commission that he was aware of and did access the Commission and Fair Work Ombudsman websites which contain a range of publicly available sources of information from which the Applicant could have obtained appropriate guidance. In any event, mere ignorance is not sufficient excuse for the delay.
It is not contentious that the error regarding the form submitted was identified and brought to the Applicant’s attention by Commission staff. The Commission’s records reflect that, during the discussion with a Commission staff member on 8 December 2021, the already expired 21-day timeframe was discussed; the Applicant was informed that he would need to explain why the application was late if he decided to lodge a dismissal related application (F8) instead and of the process that would follow; he was directed to the Commission’s benchbook for examples; and after the call was sent a text regarding the Commission’s no cost workplace advisory service and numbers for legal advice. In any event, after discontinuing the earlier claim, a further 6 days passed before this application was filed.
The Applicant was afforded substantial opportunity but did not detail or seek to rely on medical or other objective evidence in support of his additional reason(s). I accept that the Applicant was busy with work and this was a priority for him at the relevant times. I also accept that he experienced a difficult time after his dismissal. But, on the limited materials before the Commission, I do not consider the matters put forward by the Applicant (individually or together) to be uncommon or unusual and am not satisfied that there is an acceptable or reasonable explanation for the delay. Rather, the Applicant has demonstrated that he was capable of identifying the jurisdiction and even after he was clearly (and without doubt) made aware of the correct application to pursue he simply did not do so for a further 6 days.
In the circumstances, the absence of an acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances.
Action taken to dispute the dismissal – s.366(2)(b)
In respect of s.366(2)(b), I am required to take into account any action taken by the Applicant to dispute the dismissal or to place the employer on notice of his intention to dispute the dismissal.
There is no record of service of the original (F8C) application on the Respondent on 6 December 2021. But the Commission’s records reflect that correspondence was sent to the Respondent such that it was on notice of the Applicant’s intention to dispute the circumstances of his dismissal by 7 December 2021, the day after the statutory timeframe for lodging this claim had expired.
This circumstance weighs only slightly in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
The Respondent properly did not contend there to be, and I cannot identify, any particular prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.
I consider this to be a neutral factor in this case.
Merits of the application – s.366(2)(d)
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials and not detailed again here.
There is no dispute that there was an “adverse action” in this case in that the Applicant was dismissed.
The termination letter is in the materials before the Commission and expresses the reason for termination of the Applicant’s employment as: “the employment relationship is not working due to your work performance”. The Respondent maintained that the reason for dismissal was performance-related and that there was no other reason.
The basis for the Applicant’s claim that adverse action was taken in contravention of the general protections provision(s) in the Act was not initially apparent on the face of the application. The application included allegations that the dismissal was “unfair” albeit upon filing the Applicant acknowledged his awareness that he was not entitled to bring an unfair dismissal claim having completed less than 6 months’ continuous service.
The Applicant’s contentions evolved during the course of these proceedings. At the hearing of this matter, the Applicant sought to articulate complaints made during employment as a possible reason for his dismissal.[4] The new materials filed after the hearing continued to insist the dismissal was “unfair” but also included claims of being treated differently because he had a workplace right under a workplace law which related to unreasonable overtime he was required to work beyond that in the contract of employment.[5]
I understood the Respondent to strongly deny there being any merit to these allegations.
Having examined the materials and considered the evidence before the Commission, it is evident that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. Whilst some elements of the claim appear baseless, with the benefit of counsel I consider the Applicant may have been able to make out at least a prima facie case.
I do not consider the merits of the present case 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 – s.366(2)(e)
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
For the above reasons, the Applicant did not file this application within the statutory timeframe.
Having regard to the matters I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. The absence of a reasonable and acceptable explanation for the delay in filing the application weighs strongly against a finding of exceptional circumstances and the Applicant’s attempt to dispute the dismissal weighs only slightly in favour. The other factors are considered neutral. In my view, and on balance taking into account all the matters at s.366(2), the circumstances of this case are not exceptional.
For the above reasons, I have determined to not grant extension of time under s.366(2). Accordingly, the application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A Marcelletti on his own behalf.
Mr D Van de Hoef of the Respondent.
Hearing details:
2022.
Melbourne (By Video).
7 February.
[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
[2] Directions and correspondence of 19 January 2022.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[4] Applicant on Transcript of Hearing.
[5] Applicant’s final submissions of 14 February 2022.
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