Antonio Le Conte v Salubrious Enterprises Pty Ltd (ATF Salubrious Family Trust and PMJ Enterprises (Aust) Pty Ltd ATF Maria Prosia Family Trust Partnership Ta Seasons Provedore)

[2015] FWC 7473

[2015] FWC 7473

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Antonio Le Conte
v
Salubrious Enterprises Pty Ltd (ATF Salubrious Family Trust & PMJ Enterprises (Aust) Pty Ltd ATF Maria Prosia Family Trust Partnership TA Seasons Provedore)
(U2015/6647)

COMMISSIONER JOHNS SYDNEY, 29 OCTOBER 2015

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Antonio Le Conte (applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 28 July 2015, that being 24 days after his employment was terminated by Salubrious Enterprises Pty Ltd (ATF Salubrious Family Trust & PMJ Enterprises (Aust) Pty Ltd ATF Maria Prosia Family Trust Partnership TA Seasons Provedore) (Seasons Provedore/respondent) on 4 July 2015 and, consequently, 3 days after the 21 day time limit provided for in the FW Act.
[3] On 5 August 2015 the respondent indicated its objection to the Commission exercising its jurisdiction to deal with the application because it was lodged later than the 21 days after the dismissal took effect.
Legislative scheme
[4] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

[5] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  4

Matters agreed between the parties
[6] The applicant commenced employment with Seasons Provedore as its Manager in around July/August of 2013. He was initially employed on a casual basis, but became a permanent employee on 5 December 2015.
[7] On 4 July 2015 Seasons Provedore terminated the applicant’s employment.
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
[8] It is undisputable that there were 24 days between when the termination of the applicant’s employment took effect and when an application was filed with the Commission.
[9] The applicant says he made application for an unfair dismissal remedy “on the 20^th day (i.e. 24 July 2015) but [he] didn’t put the Form F2 in”. 5 He says he made the payment on 24 July 2015 (i.e. within the 21 day time period) “but [he] missed the form”.6 He says he then received a phone call from the Commission and was asked to submit the form as soon as possible. He did so on 28 July 2015.
[10] A review of the Commission’s records confirms that the applicant made payment for his application on 24 July 2015. However, that does not constitute a valid application. It was only after the Form F2 had been submitted and the payment received that there was a completed application from the applicant.
[11] The applicant says that the reason why he failed to lodge the form was because of his lack of proficiency in the English language. In the hearing before me I observed that the applicant is not particularly proficient in the English language.
[12] Accordingly, the applicant says the reason for the delay was that, having not been aware that he failed to submit the Form F2, he did not know it was late until he was contacted by the Commission. He then submitted the necessary form.
[13] Essentially the reason for delay is the applicant’s lack of proficiency in the English language.
[14] While I am sympathetic to the applicant’s situation, it is not the case that a lack of proficiency in the English language is out of the ordinary, unusual or special. In fact it is something that many people regularly and routinely experience. In circumstances where the applicant was cognisant of his own lack of proficiency in the English language he could have put in place arrangements to assist himself with the application. Leaving the making of the application to the day before the 21 day time period expired was imprudent in the circumstances.
[15] Therefore this factor weighs against of granting him a further period to make his application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[16] It is uncontested that the applicant first became a where of the dismissal on 4 July 2015.
[17] Therefore this factor weighs against of granting him a further period to make his application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[18] Other than make the present application the applicant did not take any other action to dispute the dismissal.
[19] The lack of action taken by the applicant weighs against of granting him a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[20] There is nothing in the materials which have been filed in the Commission to establish that respondent will be caused any particular prejudice by reason of the delay other than the usual prejudice associated with delay.
[21] This prejudice is a neutral factor in relation to granting the applicant a further period to make his application.
Paragraph 394(3)(e) - The merits of the application
[22] In the matter of Kornicki v Telstra-Network Technology Group 7the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 8

[23] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[24] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[25] The substantive factual contest between the applicant and the respondent is whether there was a valid reason for the termination of the applicant’s employment. This is not a factual dispute that can be resolved at a jurisdictional hearing.
[26] For present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance.
[27] If the applicant can establish to the satisfaction of the Commission that there was no valid reason and he was denied procedural fairness then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the applicant’s employment was harsh, unjust or unreasonable.
[28] Because the applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[29] The parties agreed that this factor is not relevant.

Conclusion

[30] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
[31] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

A. Le Conte for himself.

F. Longo for the respondent.

Hearing details:

2015.

4 September.

Melbourne.

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement 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) FW Act.

 3 [2011] 203 IR 1

 4 Ibid [13].

 5   Transcript PN32.

 6   Ibid.

 7   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 8   Ibid.

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