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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 2762
Decision Date: 4 MAY 2016

CaseChat Overview and Summary

Carl Giacchi, an employee, sought relief from an unfair dismissal against Foxtel Customer Services Pty Ltd, his employer. The Fair Work Commission was the tribunal hearing the case, tasked with determining whether Giacchi's dismissal was unjust and, if so, what remedies were appropriate. The central issue before the Commission was whether Giacchi could be granted an extension of time to lodge his application for unfair dismissal relief, as he had missed the statutory deadline. The Commission was required to consider the procedural requirements for such applications and whether exceptional circumstances justified extending the time limit.

The Fair Work Commission assessed Giacchi's request for an extension under the Fair Work Act, which mandates strict adherence to time limits for lodging unfair dismissal applications. The Commission examined whether there were any grounds to excuse Giacchi's delay, such as a genuine misunderstanding of the legal process, external factors beyond his control, or any other mitigating circumstances. Ultimately, the Commission concluded that while Giacchi's situation was sympathetic, there were no exceptional circumstances that warranted an extension of time. Consequently, the application for relief from unfair dismissal was dismissed due to the procedural default.

Given the Commission's findings, it ruled that Giacchi's application for unfair dismissal relief was time-barred and thus invalid. The procedural requirements for such applications are stringent, and the Commission held that Giacchi had not met the necessary criteria for an extension. As a result, Giacchi's claim for unfair dismissal was dismissed, and no further relief was granted. The Commission's decision underscored the importance of adhering to statutory timelines in employment disputes, highlighting that exceptions are rarely made without compelling justification.

Orders