Ciprian Aconi v Helix Group

[2015] FWC 3696

[2015] FWC 3696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ciprian Aconi
v
Helix Group
(C2014/8062)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 3 JUNE 2015

Application to deal with contraventions involving dismissal.

[1] Mr Ciprian Aconi (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 3 December 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by the Helix Group (Helix) in contravention of the general protections provisions in the Act. In his application, Mr Aconi contends that Helix contravened s.340 of the Act which deals with protection for individuals that purport to exercise or not exercise a workplace right.

[2] As Mr Aconi’s application appeared to have been lodged outside the statutory timeframe for lodgement, the Commission issued Directions on 16 December 2014 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Statutory declarations were filed by Mr Doug Harvey, a Director of Helix; Mr Darren Arnold, Helix’s Operations Manager; and Ms Gayl Summers, Helix’s accountant, on behalf of Helix.

[3] The matter was listed for video hearing on 9 February 2015 to deal with the issue of whether there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2) of the Act.

[4] For the reasons set out below I am not satisfied that there are exceptional circumstances warranting the granting of a further period of time for the making of an application under s.366(2) of the Act. Accordingly, the application is dismissed.

Background

[5] Mr Aconi commenced employment with Helix on 14 July 2014 as Site Supervisor. On 29 October 2014 Mr Aconi contacted Mr Harvey to advise that he had been declared unfit for work for a month by his doctor and to make arrangements to provide Mr Harvey with his medical certificate. Mr Harvey submitted that he later rang Mr Aconi to see how he was. It is not disputed that in that conversation Mr Aconi indicated that his recovery may take longer than a month, that if Helix needed to replace him he agreed to Helix terminating his contract of employment, and that Mr Aconi asked if he could rejoin Helix if he recovered. The two then discussed Mr Aconi returning company “assets”, i.e. mobile phone, lap top and motor vehicle among other items, which Mr Aconi did on 31 October 2014. Mr Harvey interpreted the conversation as Mr Aconi resigning from his position without notice.

[6] Mr Aconi was paid on 14 November 2014. He submitted that he believed that he had been overpaid and contacted Ms Summers who advised Mr Aconi that Helix had considered that he had resigned without notice on 29 October 2014 and that his pay included his outstanding entitlements less one week’s pay which had been withheld because Mr Aconi had not provided the required period of notice. Ms Summers later emailed Mr Aconi in the following terms:

“I have spoken with Doug ... He has stated that on Wednesday night 29 October 2014, you and he spoke over the phone. In that conversation you said that what you had was not good and despite what the doctor had put in the certificate you did not believe that you would be back at work for some time, if ever. You then offered to return all Helix property to the office. You also said that should you get better, then you would call him to see if there was an opening for you to work with us again. You also informed Doug during that conversation that your insurance “kicked in tomorrow” being Thursday 30 October 2014. You dropped off all Helix issued equipment, that you would have required to undertake your contracted position on Friday 31 October 2014. We believe all parties have acted consistent with the notion that you had resigned from the Helix Group.”

[7] Mr Aconi responded about half an hour later stating among other things:

“Now I Did not resign without notice witch [sic which] the COMPANY CLAIMS ... I have spoke with Doug and explain that he needs to employ somebody in my place needs to formally terminate my contract. Actually he ask my to do something formal. iT IS NOT UP TO ME ... And am I to be paid all my entitlements ...”

[8] Mr Aconi sent a further email to Ms Summers later that afternoon in which he indicated that if Helix did not pay him his entitlements “... Then I will be left to seek legal advise. I have been in touch with fair work commission ...” Ms Summers responded just over ten minutes later in the following terms “Before taking any further action, can you please wait until Monday week when Doug returns from leave so that I can advise him what you said.” Mr Aconi agreed.

[9] Mr Aconi sought to contact Mr Harvey on 21 and 22 November 2014 without success. On 27 November 2014, Ms Summers sent Mr Aconi an email which stated:

“On Wednesday 29 October 2014 you resigned without notice to the Helix Group effective immediately. Accordingly, one week’s salary has been withheld to cover the required contractual notice period that you elected not to work out.”

[10] Mr Aconi finalised his general protections application on 1 December 2014 and posted it to the Commission. The application was received by the Commission on 3 December 2014. This is thirty five days after 29 October 2014, and would be fourteen days outside the 21 day statutory timeframe for making a general protections application if that date is relied upon as the date that Mr Aconi’s employment with Helix ceased. Relying on 29 October 2014 as the date on which Mr Aconi’s employment ceased would mean that the 21 day statutory timeframe would have expired on 19 November 2014.

The Relevant Legislation

[11] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Whether to allow a further period for the application to be made

[12] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[13] Mr Aconi’s submissions at the hearing on the issue of when he contacted the Commission to discuss his situation were inconsistent. He initially indicated that he had contacted the Commission on 14 November 2014 and that he was made aware of the 21 day statutory timeframe at that time, but later submitted that he had not contacted the Commission until around 21 November 2014. As to the reason for the delay in lodging is application, Mr Aconi cited two key reasons. First, he was not aware that Helix considered that he had resigned on 29 October 2014 until 14 November 2014 and second, Ms Summers asked him to hold off taking any further action until Mr Harvey returned from leave on 24 November 2014.

[14] Helix submitted that from 14 November 2014 Mr Aconi knew that Helix considered that he had resigned without notice on 29 October 2014 and the statutory timeframe for lodging his general protections application was 21 days, adding that Mr Aconi could have lodged his application within time had he wished to do so. Helix further submitted that Mr Aconi had not explained the delay from receiving the email from Ms Summers on 27 November 2014 and finalising his application on 1 December 2014.

[15] The material before the Commission supports a finding that Mr Aconi had been in contact with the Commission by 14 November 2014 and that he was aware that Helix considered that he had resigned without notice on 29 October 2014 and of the 21 day statutory timeframe by 14 November 2014. While I note Ms Summers’ request of 14 November 2014 that Mr Aconi take no further action until Mr Harvey had returned from leave, this of itself would not have precluded Mr Aconi from lodging his application in circumstances where he was aware of the 21 day statutory timeframe for lodgement.

[16] Taken together, these factors do not favour a finding that there were exceptional circumstances in this case.

(b) Any action taken by the person to dispute the dismissal

[17] While neither party made a submission on this factor, it is clear from the material before the Commission that from 14 November 2014 when he became aware of Helix’s view that he had resigned without notice on 29 October 2014 that Mr Aconi disputed that view. On balance, I consider this factor to be a neutral consideration.

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

[18] Mr Aconi made no submission on this point.

[19] Helix pointed to the significant costs it had incurred in replacing Mr Aconi (estimated at $15,000) and the time, resources and costs devoted to defending the matter to date. In circumstances where it considered that the application was without merit, Helix submitted that it would be further prejudiced were an extension of time granted to Mr Aconi.

[20] While I note Helix’ concern regarding the costs it has incurred to date, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[21] At the hearing, Mr Aconi maintained that he had not resigned his employment but also conceded that he had not been dismissed by Helix. Mr Aconi submitted that he considered himself to be on sick leave from 29 October 2014 and that he would not have provided a medical certificate to Helix if he had intended to resign. During the course of the hearing it became apparent that Mr Aconi’s primary if not sole grievance was that Helix had withheld one week’s pay on the basis that it considered that Mr Aconi had resigned without the required period of notice. To that end, Mr Aconi stated at the hearing that were Helix to pay him what he considered to be this outstanding component of his entitlements that he would discontinue his general protections application.

[22] For its part, Helix submitted that Mr Aconi’s comments and actions around 29 October 2014 were all indicative of an employee who had resigned from their employment and that it was entitled to rely on that to conclude that Mr Aconi had resigned. Further, Helix submitted that it would not have spent $15,000 recruiting a replacement for Mr Aconi had he indicated that his absence was only temporary. In his statutory declaration, Mr Arnold declared that responsibility for the termination of employees had been delegated to him and did not rest with Mr Harvey.

[23] Mr Aconi’s concession that he has not been dismissed by Helix raises doubts about the merits of his application and in particular whether Helix had taken adverse action, particularly in circumstances where his comments and actions around 29 October 2014 are open to be interpreted as a resignation. Further, as noted above, the matter appears to relate more to an alleged underpayment than it does to a contravention of the general protections provisions of the Act.

[24] Against that background, the merits of Mr Aconi’s application appear to be less than compelling.

(f) Fairness as between the person and other persons in a like position

[25] No submissions were made on this point. Accordingly, I consider this factor to be a neutral consideration.

Conclusion

[26] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.

[27] Having considered all of the factors set out in s.366(2), and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period of time for the making of an application under s.366(2). It is clear that from 14 November 2014 Mr Aconi was aware that Helix considered that he had resigned on 29 October 2014, and that he had 21 days within which to lodge his general protections application. In those circumstances, and in the absence of any compelling reason as to why he did not, there was nothing in my view which precluded Mr Aconi from lodging his application within time. Another factor weighing against finding that there are exceptional circumstances in this case is my assessment of the merits of Mr Aconi’s application as appearing to be less than compelling.

[28] Accordingly, the application is dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant on his own behalf
Mr D Harvey and Mr D Arnold for the Respondent

Hearing details:

2015.

Canberra:

February 9

 1   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code A, PR567921>