Charles Gosselin v 611 Pty Ltd T/A Adriano Zumbo Pattissier

[2012] FWA 7320

[2012] FWA 7320

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Charles Gosselin
v
611 Pty Ltd T/A Adriano Zumbo Pattissier
(U2012/11090)

COMMISSIONER MCKENNA SYDNEY, 30 AUGUST 2012

Application for unfair dismissal remedy - late application - application dismissed.

[1] Charles Gosselin (“the applicant”) has made application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy. The applicant was dismissed by 611 Pty Ltd T/A Adriano Zumbo Pattissier (“the respondent”) on 28 September 2011. As the application was lodged beyond the timeframe of 14 days from the date the dismissal took effect, it is necessary to determine whether a further period should be granted to extend the time for making the application.

[2] As to extensions of time, the relevant provisions of the Act read as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

...

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[3] The proceedings concerning the late application were listed on 24 August 2012. The applicant did not attend as he was unwell; a certificate confirming his inability to attend was tendered by the applicant’s father and representative, Mr C Gosselin (Snr). The respondent was represented by Mr J Vizzone, solicitor. Notwithstanding the applicant’s inability to attend the proceedings on 24 August 2012, it was the consent position of the parties that the hearing should proceed that day.

[4] By way of short chronological background, the applicant commenced employment with the respondent on 27 March 2007. The dismissal arose against the background of concern about approximately $19,000 in missing takings. Following police investigations, the applicant was charged on 31 August 2011 in relation to the missing money. The respondent dismissed the applicant on 28 September 2011. On 16 March 2012, Magistrate O’Shane dismissed the charges against the applicant. On 3 July 2012, the applicant lodged this application for an unfair dismissal remedy.

The reason for the delay

[5] The “overriding explanation” relied on by the applicant as to the reason for the delay was the fact criminal charges had been laid in 2011. In this respect, the applicant’s materials noted the dismissal had been effected “ahead of the hearing” of the charges, in circumstances that were not, the applicant contended, consistent with tenets of substantive and procedural fairness.

[6] Apart from the charges-related explanation for the delay provided by the applicant, reliance was also placed on the fact that, from around the time of the commencement of the criminal proceedings, proposals were being put to avert the making of an application for an unfair dismissal remedy and/or other actions. In this respect, the applicant instructed solicitors concerning such matters. The applicant submitted that after incurring his initial legal costs in seeking through his solicitors a settlement in relation to the dismissal, he was unable to afford further legal representation from about 12 April 2012.

[7] Thereafter, the applicant personally communicated with the principal of the respondent concerning settlement, indicating that his proposals would remain open until 22 June 2012. By letter dated 25 June 2012, the respondent’s solicitors relevantly advised their client would vigorously defend any late application for an unfair dismissal remedy and would also dispute the contention the dismissal was unfair.

[8] As to the delay occasioned through exploring settlement proposals following the Local Court proceedings, further reliance was placed by the applicant on the friendship and association that formerly existed between the applicant and the principal of the respondent.

Whether the person first became aware of the dismissal after it had taken effect

[9] It was common ground the applicant was aware of the dismissal on the day it took effect.

Any action taken by the person to dispute the dismissal

[10] Following the dismissal of the criminal charges, the applicant initially instructed solicitors as to settlement-related matters. Among other matters, the applicant’s solicitors wrote to the respondent’s solicitors on 5 April 2012 to advise the applicant had been informed: “... of his rights under the Fair Work Act 2009 including but not limited to making claims for Unfair Dismissal and Adverse Action.” The applicant’s solicitors also advised that if a response was not provided by the respondent to the applicant’s settlement proposals by 12 April 2012, they had instructions to commence proceedings without further notice.

[11] There was no other relevant evidence as to any action taken to dispute the dismissal prior to the lodging of the application on 3 July 2012, apart from the applicant’s own letter of 20 June 2012 to the principal of the respondent which also directly or indirectly threatened the commencement of proceedings if settlement was not reached.

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

[12] The respondent’s case contended that the delay by the applicant in lodging his application for an unfair dismissal remedy would result in prejudice to it, given the applicant’s position had been filled and its key witness no longer resides in Australia. It was submitted that if the application had been filed in time, that person would otherwise have been called as a witness for the respondent. Moreover, any other evidence would no longer be “fresh”.

The merits of the application

[13] The respondent’s evidence was that, to the date of the proceedings, the applicant had not provided an explanation to the respondent regarding the money.

[14] The criminal charges were dismissed by Magistrate O’Shane. The evidence as to the dismissal of the charges in the respondent’s case was follows:

“To the best of my knowledge, Her Honour dismissed the charges because our key witness, [name of individual], had left the country and Her Honour did not allow her statement to be tendered. [The named individual] was the Zumbo employee who had handed the Applicant the money on the evening that the money went missing. The police had also not been allowed to show CCTV footage of the Applicant gambling at the casino which I was told by the police was crucial to the case.”

[15] As to the dismissal of the criminal charges, the applicant’s evidence was:

“The charges against me were dismissed in their entirety. Full costs were award [sic], which I am advised occurs in less that 1-2% of criminal cases. The presiding Magistrate made a further order that the Police were to pay my legal costs of [amount] on account of pursuing a baseless claim. ...”

[16] While it is the case that the criminal charges against the applicant were dismissed by Magistrate O’Shane, an application for an unfair dismissal remedy would proceed, if an extension of time were granted, according to different standards and principles from those concerning criminal charges. For instance, the dismissal did not necessarily proceed only against the allegation of alleged theft, but for other reasons such as allegedly failing to account for the missing takings and for allegedly being dishonest about making a bank deposit.

[17] The merits of the application, within the meaning of s.394(3)(e) of the Act, are indeterminate on what is presently before me.

Fairness as between the person and other persons in a similar position

[18] Neither party advance anything of relevance to the question of fairness as between the applicant and other persons in a similar position.

CONSIDERATION

[19] The applicant was dismissed on 28 September 2011. For the reasons described in the applicant’s case, he determined not to lodge the application until approximately 280 days after the dismissal took effect. Those reasons related principally to the criminal charges, coupled with the applicant’s desire, following the dismissal of the criminal charges by Magistrate O’Shane, to explore settlement with the respondent rather than to commence proceedings.

[20] I take notice of the fact that it is not out of the ordinary for there to be police involvement in connection with the circumstances where dismissals have been effected, for example, where there are allegations of assault, theft and the like. There is nothing to prevent an applicant from making an application for an unfair dismissal remedy under the Act at a time when he or she is under police investigation or charged with an offence. Indeed, I take further notice of the fact that applications in such circumstances have been made, and typically made within time, by numerous unfair dismissal applicants.

[21] Here, the applicant determined, for his own reasons which were principally attributed to the criminal charges, not to make an application for an unfair dismissal remedy within the statutory timeframe. I am not satisfied that the laying of criminal charges against the applicant would constitute exceptional circumstances for the purposes of an extension of time - more particularly given the lengthy time-lag in making this application. These types of circumstances are far from exceptional in relation to applications for unfair dismissal remedies.

[22] Further, following the dismissal of the criminal charges, the applicant had the benefit of legal advice by at least 5 April 2012, if not before, concerning unfair dismissal remedies. The applicant determined not to lodge an application, even at this late stage, because he was seeking a settlement with the respondent - even further delaying the making of the application. Despite the matters advanced in the applicant’s case, the applicant’s decision to pursue a settlement rather than to make an application could not be considered to constitute exceptional circumstances such as to justify an extension of time, even noting the prior friendship between the applicant and the principal of the respondent and the applicant’s concerns about further legal expenses as reasons for his decision not to lodge an application during the post-trial period.

[23] Having considered the matters raised by the parties, I am not satisfied, taking into account the matters relevant to all the statutory criteria, that exceptional circumstances exist such as to justify an extension of time.

[24] The application is dismissed. An order dismissing the application has been issued in conjunction with these reasons.

COMMISSIONER

Appearances:

C Gosselin (Snr) for the applicant.

J Vizzone, solicitor, for 611 Pty Ltd T/A Adriano Zumbo Pattissier.

Hearing details:

2012.
Sydney:
August, 24.

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<Price code C, PR528364>