Carl Giacchi v Foxtel Customer Services Pty Ltd

[2016] FWC 2762

[2016] FWC 2762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carl Giacchi
v
Foxtel Customer Services Pty Ltd
(U2016/960)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 4 MAY 2016

Application for relief from unfair dismissal – extension of time not granted.

[1] Mr Carl Giacchi made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). At the time of his dismissal, Mr Giacchi was employed as a Representative in the ‘Winback’ team by Foxtel Customer Services Pty Ltd (Foxtel), based at the call centre in Moonee Ponds.

[2] This decision is about whether the Commission should allow Mr Giacchi a further period for lodgement of his application for an unfair dismissal remedy.

[3] Mr Giacchi lodged his unfair dismissal application on 4 March 2016. Mr Giacchi’s application was not made within 21 days of the date of the dismissal as required by s.394(2)(a) of the Act. 1

[4] Foxtel objected to the application on the basis the termination of Mr Giacchi’s employment was by reason of genuine redundancy and the application was lodged out of time. 2

[5] Mr Giacchi alleges the termination of his employment by Foxtel was not a case of genuine redundancy.

Background

[6] Mr Giacchi commenced employment with Foxtel on 3 November 2010 in the position of Retention Representative. He says he was seconded to the ‘Winback’ team on 24 February 2014. 3 Foxtel submit that Mr Giacchi’s move was not a secondment, it was a permanent change of teams.4

[7] Foxtel submits in early January 2016, due to the competitive landscape of the subscription television industry, they conducted a review of its existing operations. Mr Angelo Nardozza, Foxtel’s National Retention Manager, says as a result of the restructure, approximately 90 roles would become redundant, including Mr Giacchi’s. 5

[8] It is not in contention that Mr Giacchi attended a consultation meeting with Mr Nardozza on 19 January 2016 regarding the proposed restructure and potential redundancy of his role. Mr Giacchi was provided with a letter summarising the details of the discussion held during the meeting 6 and a copy of existing job vacancies.7

[9] Mr Giacchi submits on 29 January 2016 during a meeting with Mr Nardozza he received a letter informing him his employment would cease by reason of redundancy on 26 February 2016. 8

[10] Mr Giacchi submits although his employment ceased at his own initiative on 4 February 2016, his application was not made out of time because the formal documentation provided by Foxtel states his employment was to end on 26 February 2016. 9

[11] Mr Giacchi submits should the first proposition not be accepted by the Commission, and the Commission decides that the date of dismissal was 4 February 2016, the reason for the delay was caused by a job advertisement being posted following what appeared to be a genuine redundancy. 10

[12] In his witness statement Mr Giacchi says:

“On 4 February 2016, I attended work. I told Mr Daher that I was going to leave the company effective immediately in order to seek alternative employment. I felt this was my only real option”. 11

[13] I note that Mr Giacchi secured alternative employment which he commenced on 15 February 2016. 12

[14] The question of when an employment relationship ends has been the subject of consideration of this Commission on a number of occasions, including the Full Bench decision Mihajlovic v Lifeline Macarthur. 13 Whilst I am not determining if Mr Giacchi’s employment relationship ended within the meaning of s.394(1) of the Act, I will consider the question of when the relationship ended in light of some of the principles that have previously been applied.

[15] In Varcoe v Ace Insurance Limited, 14 Deputy President Booth considered the question of when an employment relationship ends, adopting the approach taken by the Full Bench in Mihajlovic v Lifeline Macarthur,15 and found the following:

“Where payment in lieu of notice is made the dismissal usually takes effect immediately. Where the notice period is worked the dismissal usually takes effect at the expiry of the notice period. This is because the date of effect of the dismissal is the date the employment relationship comes to an end.”(end notes omitted)

[16] It is not in contention Mr Giacchi sought to end his own employment by agreement on 4 February 2016. It is also not in contention that Foxtel agreed to the request and Mr Giacchi subsequently received four weeks payment in lieu of notice in accordance with his employment contract. 16 In effect, Foxtel and Mr Giacchi agreed that the termination would have effect from 4 February 2016 with payment in lieu of notice, rather than have effect on 26 February 2016 with Mr Giacchi being required to work out the notice period.

[17] Applying the approach in Mihajlovic v Lifeline Macarthur, 17 I find the dismissal occurred on 4 February 2016, and therefore Mr Giacchi’s application was filed 29 days after the dismissal took effect.

[18] Accordingly, it is necessary to determine whether the time for the making of Mr Giacchi’s application should be extended to 4 March 2016 under s.394(2)(b) of the Act, taking into account the matters in s.394(3).

[19] Section 394(3) is as follows:

“394 Application for unfair dismissal remedy

…

(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.”

Procedural History

[20] A submission 18 and a witness statement19 were filed on 18 March 2016 on behalf of Mr Giacchi.

[21] Foxtel filed their submission 20 and the witness statement of Mr Nardozza21 on 24 March 2016.

[22] On 30 March 2016 submissions were made on behalf of Mr Giacchi requesting the matter be dealt with by the Commission based on the submissions already provided by the parties.

[23] Section 397 of the Act states:

“397 Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”

[24] In this case, I consider that there were contested facts within the materials submitted. Accordingly, on 31 March 2016 I instructed my associate to write to the parties advising the matter would be dealt with at a jurisdictional hearing on 1 April 2016. I advised Mr Giacchi should he or his representative choose not to attend, in the absence of any objections, the Commission would have regard to the materials filed on his behalf. The Commission received no such objections.

[25] The matter proceeded to a jurisdictional hearing on 1 April 2016. Ms Dearing represented Foxtel, and Mr Nardozza gave oral evidence to support his written submission. Neither Mr Giacchi nor his representative attended the hearing.

Consideration

[26] Without objection, Mr Giacchi’s submission and witness statement were entered into evidence.

[27] The Commission can extend time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[28] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 22where 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]

[29] I have considered each of the matters outlined in s.394(3) of the Act and for the reasons given below I am not satisfied that Mr Giacchi has provided that there are exceptional circumstances for the whole of the delay.

s.394(3)(a) the reason for the delay

[30] MrGiacchi’s application was filed twenty nine days (29 days) after the date of his dismissal. Mr Giacchi must provide reasons for the delay in making the unfair dismissal application. 23

[31] Mr Giacchi must provide reasons for the whole of the period that the application was delayed. 24 The Commission is required to consider the explanation of the total period of the delay, not only part of it.25 The delay for the purposes of s.394(3) of the Act, is the delay from the expiry of the 21 day period in s.394(2)(a) after the termination date until lodgement of the application.²⁶ The reasons provided must be considered in order to determine whether those reasons constitute exceptional circumstances.

[32] Mr Giacchi submits that on 19 January 2016 he was advised that “the Winback Team, was being outsourced to South Africa and that all members of that team were to be made redundant”. 27

[33] On 23 February 2016 Mr Giacchi became aware that Foxtel were hiring Retention Representatives at the Moonee Ponds Office, a position Mr Giacchi submits he held prior to joining the Winback team. 28

[34] Mr Giacchi submits it was only upon seeing the advertised role on Seek that he then became aware the termination of his employment may not have been by reason of genuine redundancy within the meaning of s.389 of the Act. Mr Giacchi submits for 17 of the 21 days within which he had time to file his application, he was not aware of any grounds that would warrant him making an application for unfair dismissal remedy. 29

[35] Mr Giacchi relies on the decision of Byrnes v Rexel Electrical Supplies 30 in that a delay in filing an application caused by a job advertisement being posted following what appeared to be a genuine redundancy constitutes a satisfactory explanation for that delay.

[36] I draw the following distinctions between the current matter under consideration and the matter of Byrnes v Rexel Electrical Supplies: 31

a) Mr Byrnes had no cause to question the validity of his dismissal until he became aware of a role similar to the role he previously occupied advertised on 30 June 2015, he then lodged his application on 1 July 2015, as soon as possible after seeing the advertisement being the very next day.

b) Mr Giacchi became aware of the advertised position on 23 February 2016, he then lodged his application on 4 March 2016, 10 days after seeing the advertisement.

[37] In her decision, 32 Commissioner Bissett says:

“[26] I am satisfied that Mr Byrnes has provided a satisfactory explanation for the delay in making his application. When he saw a position similar to that he had occupied advertised he immediately took steps to make his application to the Commission.…” [emphasis added]

[38] Mr Giacchi did not take immediate steps to make his application after becoming aware of the job advertisement, nor did he provide reasons for the delay of 10 days from becoming aware of the role advertised on Seek on 23 February 2016 until the date his application was made.

[39] In accordance with the principles summarised in paragraph [31] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 26 February 2016 to 4 March 2016. However, 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 whether that reason constitutes exceptional circumstances.

[40] The relevant time period is particularly important when giving consideration to the exceptional circumstances in this case. Mr Giacchi relies upon the reason he did not become aware of the role being advertised until 23 February 2016 at which point Mr Giacchi still had two days remaining in which he could make his application. Mr Giacchi provided no reasonable explanation for the delay beyond 23 February 2016.

[41] Therefore I am not satisfied that Mr Giacchi has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[42] It is not disputed that on 29 January 2016 Mr Giacchi received a letter from Foxtel informing him his position had been made redundant and his employment would cease from 26 February 2016.

When Mr Giacchi sought an agreed separation with his team leader with effect from 4 February 2016 he was aware his employment would cease on that day.

s.394(3)(c) any action taken by the person to dispute the dismissal

[43] Action taken by an employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting and extension of time. 33

[44] MrGiacchi submits that “he did not dispute the dismissal as he had no reason to believe that the dismissal was not a genuine redundancy until after the dismissal took effect”. 34

[45] Foxtel submits Mr Giacchi made no attempts to dispute his dismissal on or after the termination date. 35

[46] Mr Giacchi submits after he saw the job advertisement, he acted promptly to lodge his application. There was no evidence submitted by Mr Giacchi that he had taken any other action to dispute his dismissal beyond lodging his application. This weighs against a finding that there are exceptional circumstances.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[47] Prejudice to the employer will go against the granting of an extension of time. Mr Giacchi submits that a delay of only eight days outside of the timeframe for lodgement of his application poses no unfair disadvantage to Foxtel. 36

[48] During the hearing Ms Dearing submitted granting the extension of time beyond that stipulated in s.394(2)(a) of the Act would cause prejudice to Foxtel in that it would incur considerable expense both in legal fees and the additional resources required to defend an unfair dismissal claim.

[49] The prejudice asserted by Ms Dearing extends no further than the normal prejudice to a respondent in having to defend an application. It carries limited weight against granting Mr Giacchi a further period for making his application.

s.394(3)(e) the merits of the application

[50] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 37 it said:

“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.”

[51] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. In this case there is a contest of the merits. However, the Commission cannot make any findings on contested matters without hearing evidence. Full evidence as to the merits was not put to me or fully tested. It was unnecessary to hear the full evidence for the purpose of the extension of time application. Indeed evidence on the merits is rarely called for the purposes of determining an extension of time application and the Commission should not embark on a detailed consideration of the substantive application. On the evidence before me, 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.

s.394(3)(f) fairness as between the person and other persons in a similar position.

[52] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 38 as follows:

“[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”

[53] In his submission Mr Giacchi submits that it would be unfair not to grant him an extension of time in which to lodge his application. In particular he relies on the decisions of Byrnes v Rexel Electrical Supplies 39 and Sinclair v BlueScope Distribution Pty Ltd.40

[54] As submitted by Mr Giacchi, in both decisions the reasons for the delay were found to be reasonable. The reasons provided for the delay were that the applicants were not aware their dismissals may not have been by reason of genuine redundancy until they became aware of the advertised positions. Both applicants submitted their applications the day after they became aware of the advertisements that alerted them to this factor.

[55] Consideration of fairness relative to other persons in similar positions provide for different conclusions about an extension of time. However, I am satisfied that the conclusion here reflects a common recognition that the onus is on an applicant to take timely action to challenge a disputed employment termination. Mr Giacchi did not submit evidence as to why there was a delay from the time he became aware of the job advertisement to the time he submitted his application, a delay of 10 days. I find this weighs against granting Mr Giacchi an extension of time.

Conclusion

[56] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Mr Giacchi’s application to be made. Mr Giacchi has not provided a reasonable explanation for the whole of the delay. Mr Giacchi’s application for an extension of time is dismissed and his unfair dismissal application is therefore dismissed.

[57] An order dismissing Mr Giacchi’s application will accompany this decision.

COMMISSIONER

Appearances:

There was no appearance by Mr Giacci.

B Dearing for Foxtel Customer Services Pty Ltd.

Hearing details:

2016.

Melbourne and Sydney (video hearing):

April 1.

 1 F2 –Unfair Dismissal Application.

 2   Employer F3, 15 March 2016.

 3   Exhibit A1, para 5.

 4   Exhibit R2, para 7(c).

 5   Exhibit R2, para 13.

 6   Exhibit R2, Annexure 1.

 7   Exhibit R2, Annexure 2.

 8   Exhibit A2, para 17.

 9   Exhibit A1, para 13.

 10   Exhibit A1, para 14.

 11   Exhibit A2, para18.

 12   Exhibit A2, para 19.

 13   [2014] FWCFB 1070.

 14   [2015] FWC 2805.

 15   [2014] FWCFB 1070.

 16   Exhibit A1, para 8.

 17   [2014] FWCFB 1070.

 18   Exhibit A1.

 19   Exhibit A2.

 20   Exhibit R1.

 21   Exhibit R2.

 22   [2011] FWAFB 975.

 23   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 24   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010)197 IR 403 at 408-9.

 25   Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37].

26 Ibid.

 27   Exhibit A1, para 6

 28   Exhibit A1.

 29   Exhibit A1, para 16

 30   [2015] FWC 5776.

 31   Ibid.

 32   Ibid.

 33   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 34   Exhibit A1, para 19.

 35   Exhibit R1, para 16.

 36   Exhibit A1, para 22.

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

 38   [2015] FWC 8885 at [29].

 39   [2015] FWC 5776.

 40   [2015] FWC 5849.

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