Albino Pagnozzi v Lares Homes Pty Ltd

[2023] FWC 3358

[2023] FWC 3358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Albino Pagnozzi
v

Lares Homes Pty Ltd

(U2023/10976)

COMMISSIONER PLATT ADELAIDE, 21 DECEMBER 2023

Application for an unfair dismissal remedy – request for an extension of time – application filed within time – no extension required

1. On 9 November 2023, Mr Albino Pagnozzi (the Applicant) lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Lares Homes Pty Ltd (the Respondent) which the Applicant suggested occurred on 9 October 2023.

1. The Act provides that an Applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect[1] However, the Fair Work Commission may allow a further period for the application to be made in exceptional circumstances.[2]

1. The application appeared to have been lodged 10 days beyond the time permitted.

1. In his Form F2, the Applicant identified the Application was made beyond the 21 days from the date of dismissal. The Applicant explained the reason for delay as follows:

   “Not sure but when I had been given a verbal notice of redundancy on 9/10/23 I was told that I had 2 weeks notice. I also found out that I should have been given 5 weeks notice so I thought I had enough time once Lares Homes i had resolved how much of a pay out I was going to get. I was not until I gave them written notice that they owed me some redundancy pay, of which they replied they omitted to include my redundancy payment, see email. Therefore my late application to FWC. I had begun this process and had saved this in Drafts Ref. No. QQQFZ3”

1. On 24 November 2023 my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on Tuesday, 19 December 2023 in respect of the extension of time issue and provided directions for the filing of material.

1. On 29 November 2023 the Respondent filed a Form F3 Employer Response.  The Respondent raised two jurisdictional objections, the first being that the Application was made out of time, the second being the dismissal was a case of genuine redundancy.

1. This Decision only deals with the extension of time objection.

1. The Applicant filed submissions, supporting documents and a witness statement in respect of the extension of time jurisdictional objection made by the Respondent.

1. The Respondent filed submissions by way of a Form F4 objection to unfair dismissal application and copies of some Payslips. No witness statements were filed by the Respondent.

1. A copy of the material filed (other than the Payslips which were filed the day before the Hearing) was collated into a Digital Court Book and distributed to the parties prior to the Hearing. The entirety of the Court Book and the Payslips were received into evidence with due weight being accorded to the material based in its admissibility.

1. The Hearing was conducted at 10:00am (SA) Tuesday, 19 December 2023 by teleconference. The teleconference was recorded.  The Applicant was self-represented and gave evidence. The Respondent was represented by Ms Emma Campbell of counsel, permission was granted pursuant to s.596(2)(a). In order to ameliorate the impact of the grant of permission, the hearing was conducted as a Determinative Conference. No witnesses were called by the Respondent.

1. The relevant evidence is summarised as follows:

·  Mr Pagnozzi was verbally notified on his redundancy on 9 October 2023 and advised he was to work out his (then) two weeks’ notice. The Respondent submitted that Mr Pagnozzi was advised at the time that his notice would be paid in lieu (which would result in the dismissal occurring on 9 October 2023.  Mr Pagnozzi denied being advised his notice was paid in lieu.

·  Mr Pagnozzi’s mother was unexpectedly admitted to palliative care from 2 October 2023 and unfortunately passed away on 18 October 2023. Mr Pagnozzi advised his motivation and capacity to work was adversely impacted by his mother’s medical condition and subsequent death.

·  On 11 October 2023, Mr Pagnozzi notified the Respondent that he ‘won’t be in today’ and provided the Respondent with a medical certificate from Dr Flavio Gianotto which certified the Applicant was unfit to work from 10 October 2023 to 24 October 2023 inclusive.

·  On 13 October 2023, Mr Pagnozzi was paid a weeks pay by EFT. The corresponding payslip identified this amount as sick leave.

·  On 20 October 2023, Mr Pagnozzi was paid a further weeks pay by EFT.  The corresponding payslip also identified this amount as sick leave.

·  On 20 October 2023, Mr Zuliamis and Mr Pagnozzi corresponded. The email exchange suggests the Applicant was provided with and paid sick leave (personal leave) for the week commencing 16 October 2023 and that a ‘final payment’ would be paid on the week commencing 23 October 2023.

·  On 23 October 2023, Mr Pagnozzi sent an email to the Respondent requesting written confirmation of the redundancy and copies of the last two pay slips, employment agreement and a resume (referral). The Applicant asserted his redundancy pay was incorrect and that he was entitled to 13 weeks severance pay.

·  The Respondent provided an amended summary of entitlements on 27 October 2023 including calculations for annual leave, long service leave, redundancy at 13 weeks and a notice period of 5 weeks, less the 2 weeks from 9 October 2023 to 20 October 2023.

·  Mr Pagnozzi contends he was unable to operate his computer during the period of 30 October 2023 to 8 November 2023. Mr Pagnozzi provided a supporting communication with Lenovo dated 8 November 2023.

·  On 3 November 2023, Mr Pagnozzi was paid his leave, notice and severance pay entitlements totalling $38,213.62.

·  On 9 November 2023, the Respondent provided Mr Pagnozzi with a letter confirming the redundancy occurred on 9 October 2023 and payment of entitlements which included ‘5 week notice period in lieu of working’.

·  On 29 November 2023 Mr Pagnozzi followed up his request for payslips for the weeks commencing 9 & 16 October 2023, as well as an ‘employment agreement’ and ‘referral’.

·  Mr Pagnozzi contends that the Respondent has not suffered prejudice.

·  Mr Pagnozzi contends that the merits is a factor in his favour.

1. The Respondent largely restated its written submission.

Applicable Law

1. Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

1. The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]

1. I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

…

[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.”

Consideration

1. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] A dismissal can be communicated orally.[6]

1. There is no dispute that on 9 October 2023 the Applicant was advised that his employment would end by way of redundancy.  There is a dispute as to whether the Applicant was advised when his employment would cease.  The Applicant gave evidence that on 9 October 2023 he was advised that he was entitled to 2 weeks notice and that would be worked out.  The Respondent did not present any evidence as to the content of this conversation. I prefer the evidence of Mr Pagnozzi and find that he was advised that the dismissal would take effect two weeks from 9 October 2023 (23 October 2023).

1. The Respondent’s submission that Mr Pagnozzi was paid his notice in lieu (and thus the employment ended on 9 October 2023) is not supported by the documentary evidence, particularly the Payslips on 13, 20 October and 3 November 2023.  In addition, it is difficult to reconcile how Mr Pagnozzi could have been dismissed on 9 October and also be paid sick leave (personal leave) for the two weeks following.

1. I find that the Respondent did not pay out Mr Pagnozzi’s notice in lieu as represented in its letter dated 9 November 2023 and that the date of dismissal was not earlier than 20 October 2023, in which the case the Application was made within the time specified under the Act and no extension of time is required.

1. In the event that I was not persuaded that the Application was made within the time allowed, I would have extended the time for lodgement of the Application as a result of the exceptional circumstances revealed by the facts, including (but not limited to):

   ·  The Applicant was not advised when the termination took effect until 9 November 2023.

·  The Applicant was adversely affected by his mother’s medical condition.

·  The Applicant’s case is not without merit.

·  I was not persuaded that the Respondent is prejudiced.

COMMISSIONER

[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

[2] Section 394(3) of the Act

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

[4] [2011] FWAFB 975

[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

[6] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

C Printed by authority of the Commonwealth Government Printer

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entra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605