Carlos Dionisio v C.A.R. Automotive & Marine Pty Ltd

[2022] FWC 381

[2022] FWC 381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Carlos Dionisio
v

C.A.R. Automotive & Marine Pty Ltd

(U2022/1372)

DEPUTY PRESIDENT COLMAN MELBOURNE, 23 FEBRUARY 2022

Extension of time (s 394(3)) – no exceptional circumstances – application dismissed

1. Mr Carlos Dionisio has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). His employment with C.A.R. Automotive & Marine Pty Ltd (company) was terminated on 21 December 2021. Section 394(2) states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The 21-day period ended at midnight on 11 January 2022. The application was lodged on 1 February 2022, 21 days out of time. In order for Mr Dionisio’s application to proceed, he requires an extension of time.

1. Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are ‘exceptional circumstances.’ I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness as between the person and other persons in a similar position.

1. The Act does not indicate the reasons for delay that might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an acceptable or reasonable explanation. Mr Dionisio submitted that he is a new resident in Australia and is only 19 years old, and that he was unaware of the unfair dismissal laws. It was only on 28 January 2022, after he spoke with his former training supervisor, that he discovered that he could contact the Fair Work Commission about his dismissal. Mr Dionisio said that he had been unable to speak with his supervisor earlier due to the Christmas period and the effects of the COVID-19 pandemic. Mr Dionisio’s unawareness of the requirement to lodge an unfair dismissal application within 21 days of dismissal is not an acceptable reason for delay. Although Mr Dionisio is young and has been in Australia for only a year, there is no reason why he could not have made inquiries about how to challenge his dismissal. Many young people and newly arrived residents make unfair dismissal claims. Information is readily available on the internet, including on the Commission’s website. Mr Dionisio did not need to speak to his supervisor about how to challenge his unfair dismissal. I am not satisfied that Mr Dionisio has an acceptable or reasonable explanation for the delay. The matters he refers to are not exceptional. The reason for the delay weighs against an extension of time.

1. I consider the following matters to be neutral considerations. First, Mr Dionisio was notified of his dismissal on the same day that it took effect (s 394(3)(b)). Secondly, Mr Dionisio took no action to dispute his dismissal apart from filing his application (s 394(3)(c)). Thirdly, there is no prejudice to the employer (s 394(3)(d)). Finally, I am not aware of any matters that are relevant to the question of fairness as between Mr Dionisio and other persons (s 394(3)(f)).

1. As to the merits (s 394(3)(e)), Mr Dionisio said that his summary dismissal for having undertaken faulty car repairs was unfair. He said that the damage was not his fault because he was working unsupervised as an apprentice, and that the company had not inspected his work but still approved the car’s release to the customer. The company denied that Mr Dionisio had been working unsupervised. It submitted that Mr Dionisio had been shown how to perform the repairs and was warned that he may be dismissed if he continued to make mistakes. An application to extend time is in the nature of an interlocutory application (see s 396). It is neither possible nor appropriate for the Commission to form any concluded view about the merits. In this case, the merits turn on disputed points of evidence that would need to be tested if an extension of time were granted. Much would depend on factual findings. I consider the merits of the application to be a neutral factor in considering whether to extend time.

1. Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Mr Dionisio has not established an acceptable or reasonable explanation for the delay. None of the considerations in s 394(3) weighs in favour of an extension. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Mr Dionisio’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

G. Persini for the applicant
D. Farrugia for the respondent

Hearing details:

2022
Melbourne
23 February

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