Andrea Leggenda v Giorgio Group Holdings Pty Ltd T/A Giorgio Dental Laboratory

[2017] FWC 6779

[2017] FWC 6779

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Andrea Leggenda
v
Giorgio Group Holdings Pty Ltd T/A Giorgio Dental Laboratory
(C2017/6486)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 15 DECEMBER 2017

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] This matter was listed for hearing before me on 15 December 2017. At the conclusion of the hearing, I dismissed the application as I was not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Fair Work Act 2009 (the Act) and advised the parties that I would issue written reasons for the making of my decision.

[2] On 23 November 2017 Mr Andrea Leggenda (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Act. The Respondent to the application is Giorgio Group Holdings Pty Ltd T/A Giorgio Dental Laboratory (Respondent)(GDL).

[3] Mr Leggenda commenced employment with GDL on 21 September 2017. He says that he was dismissed on 25 October 2017 and the dismissal took effect on 1 November 2017, therefore the application was lodged one day out of time. 1

[4] GDL submitted that, as Mr Leggenda was advised of his dismissal on 25 October 2017, the application was instead lodged 8 days out of time. 2 GDL did not dispute that Mr Leggenda worked out his notice period and confirmed that Mr Leggenda’s last day of work was 1 November 2017.3

[5] Section 366(1)(a) of the Act provides that an application must be made within 21 days after the dismissal took effect. As Mr Leggenda’s dismissal did not take effect until 1 November 2017, the application therefore was lodged 1 day out of time.

Alleged Contravention

[6] Mr Leggenda submits that he was dismissed because of discrimination on the basis of race. 4 A breach of s. 351 is alleged.

Legislative scheme

[7] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) The application 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).

[8] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 5where the Full Bench said:

[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.

[Endnotes not reproduced]

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[11] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 6

[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 7 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

“[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …”

[30] This extract must be read in its entirety. The decision goes on to state:

“[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

Background

[13] On 28 November 2017, the parties were advised by 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 listed for hearing on 15 December 2017.

[14] Mr Leggenda did not file written submissions in accordance with the Directions of the Commission. Correspondence was sent from my chambers on numerous occasions requiring the filing of materials and explaining the importance of written submissions. Despite this, no documentation was filed.

[15] Further, Mr Leggenda did not appear at the hearing and was instead represented by his partner, Ms Sonia Dal. Ms Dal, whilst not a paid agent, advised that she was a HR representative with over 20 years of experience. GDL was represented by Ms Cassandra Eastham of HRM Direct. Mr George Thalassinos, owner/operator of GDL, also appeared at the hearing and gave evidence.

[16] In the interests of fairness between the parties, and to assist the Commission in dealing with the matter more efficiently, GDL was granted permission to be represented by a paid agent.

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

[17] 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

[18] Mr Leggenda’s application states that it was lodged one day late due to his confusion over the notice period he was provided. 8 As Mr Leggenda did not attend the telephone hearing he was unable to give any sworn evidence as to this confusion.

[19] His representative, Ms Dal, gave submissions on Mr Leggenda’s behalf. She submitted that the termination letter received by Mr Leggenda had caused confusion, as it referred to Mr Leggenda’s last day of work being 1 November 2017 along with the payment of one week’s pay in lieu of notice. Ms Dal therefore submitted that they considered Mr Leggenda’s dismissal would have taken effect from 8 November 2017.

[20] Mr Leggenda’s termination letter, dated 25 October 2017, provides as follows:

“We confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end on 1st November 2017.

The following entitlements will be paid to you on 10 November 2017.

• One week’s payment in lieu of today’s notice;

• Untaken annual leave” 9

[21] Ms Dal submitted that she was aware of Mr Leggenda’s dismissal from either 26 or 27 October 2017, and that she was able to view the termination letter on either 27 or 28 October 2017. She submitted that she and Mr Leggenda were waiting to see Mr Leggenda’s final pay and were then awaiting a response from the employer regarding their concerns with this payment, raised on 23 November 2017. 10

[22] Ms Dal was unable to provide a submission as to why the application was not lodged before this date. Despite having over 20 years’ experience in human resources, and being aware of the 21 day time limit for lodgement, Ms Dal was unable to provide any reasonable explanation for the whole of the delay. As Mr Leggenda did not attend the hearing he was unable to provide any evidence.

[23] GDL submits that Mr Leggenda was advised at a meeting on 25 October that he was being dismissed and was given the opportunity to work out his notice period or be paid out the week. 11

[24] GDL submits that they had the assistance of another employee in this meeting to interpret for Mr Leggenda due to his language skills 12 and that Mr Leggenda was very clear about working out his notice period.13

[25] For this consideration there must be an acceptable reason for the delay 14 and this must be for the whole period that the application was delayed.15 I am not satisfied that Mr Leggenda has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

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

[26] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 16

[27] Ms Dal submitted that Mr Leggenda was not in a position to dispute his dismissal due to his lack of English language skills and due to GDL’s workplace culture.

[28] GDL submitted that Mr Leggenda did not take any steps to dispute the dismissal with them. 17 They disputed Ms Dal’s submissions regarding workplace culture and reiterated that Mr Leggenda was provided with an interpreter during his termination meeting.

[29] I am not satisfied that Mr Leggenda made any attempt to dispute his dismissal with GDL. This weighs against granting a further period for Mr Leggenda to lodge his application.

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

[30] Prejudice to the employer will go against the granting of an extension of time. 18

[31] Ms Dal submitted that there would be no prejudice to the employer if an extension of time was granted.

[32] GDL submitted that they had already had to pay for extra services and professional service fees for an external HR consultant to respond to the matter. 19 They submitted that having to defend this claim would put additional pressures on the company.

[33] While I note GDL’s submission, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) Merits of the application

[34] Mr Leggenda submitted that he had been dismissed due to discrimination on the basis of race. 20 He submitted that he had experienced differential treatment from his Team Leader with respect to work allocation, instruction, training and induction.21

[35] He submitted that this Team Leader gave more attention and easier jobs to his Korean colleagues and alleged that there was a perception by staff that such employees were treated favourably by the Respondent as they did not exercise their workplace rights. 22

[36] GDL denied these allegations and submitted that Mr Leggenda was terminated in his probationary period as they felt he was not suitable for the role. 23

[37] They submit that Mr Leggenda had misrepresented his skills and abilities to them and did not have the basic skill level required to fulfil his position. 24

[38] GDL provided a Job Task Performance Table dated 20 October 2017 which described Mr Leggenda as having consistently performed less than effectively in most requirements and stating that five of his “jobs” have required ‘remakes’.  25 GDL also submitted photographs of these jobs, advising that they had been returned as requiring reworking. 26

[39] Further, Mr Thalassinos gave evidence that GDL became aware that Mr Leggenda had misrepresented his skills and had not actually worked with dental tools in approximately ten years.

[40] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 27 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.28 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[41] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 29

[42] Ms Dal submitted that she was aware of a matter in which the employer allowed an applicant to make an unfair dismissal application despite being lodged out of time as the employer didn’t have anything to hide. Ms Dal was unable to provide any further details in relation to this application.

[43] GDL submitted that it was not aware of any person in a similar position to Mr Leggenda.

[44] In the absence of any compelling submissions on this criterion, I find this criterion neutral.

Conclusion

[45] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[46] A conclusion that there are exceptional circumstances taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 30

[47] 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

[48] An order 31 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

S. Dal for the Applicant;

C. Eastham for the Respondent

Hearing details:

2017

15 December (telephone hearing)

 1   Exhibit A1

 2   Respondent’s Form F8A

 3   Respondent’s Form F8A

 4   Exhibit A1

 5   [2011] FWAFB 975.

 6   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 7   [2016] FWCFB 349

 8   Exhibit A1

 9   Exhibit R1

 10   Exhibit R3

 11   Respondent’s Form F8A

 12   Exhibit R2

 13   Respondent’s Form F8A

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 15   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409

 16   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 17   Exhibit R7

 18   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 19   Exhibit R7

 20   Exhibit A1

 21   Exhibit A1

 22   Exhibit A1

 23   Exhibit R7

 24   Respondent’s Form F8A

 25   Exhibit R5

 26   Exhibit R4

 27   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 28   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 29   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

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

 31   PR598792

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<Price code C, PR598791>