David Denver v Di Placido Group Pty Ltd t/a Perth Motorsport
[2018] FWC 5510
•4 SEPTEMBER 2018
| [2018] FWC 5510 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for an unfair dismissal remedy
David Denver
v
Di Placido Group Pty Ltd t/a Perth Motorsport
(U2018/6690)
DEPUTY PRESIDENT COLMAN | MELBOURNE, 4 SEPTEMBER 2018 |
Application for an unfair dismissal remedy – application lodged out of time – no exceptional circumstances – application for further period declined – application dismissed
Introduction
[1] This decision concerns a jurisdictional objection raised by Di Placido Group Pty Ltd (Di Placido) to an application by Mr David Denver for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Mr Denver was employed by Di Placido as a business manager from 12 April 2018 until his dismissal on 7 June 2018. He claims that his dismissal was unfair and seeks an order for compensation.
[2] Di Placido objects to the application on jurisdictional grounds. It contends that the application was lodged outside the 21 day period prescribed by s 394 of the Act, and that Mr Denver had not completed the six month minimum employment period required by s 382.
[3] Mr Denver acknowledges that his unfair dismissal application was lodged one day after the 21 day period ended, and asks the Commission to allow a further period pursuant to s 394(3). As to the minimum employment period, Mr Denver contends that, from November 2017 to April 2018, he was employed on a regular and systematic casual basis by Fastlane Finance Pty Ltd (Fastlane), which he says is an associated entity of Di Placido, and that accordingly his service with Fastlane counts towards the 6 month minimum period of employment with Di Placido.
[4] The company’s jurisdictional objections were listed before me on 31 August 2018. I conducted the proceeding by way of determinative conference by telephone link to Perth. Mr Denver appeared for himself, and Mr Lucas Di Placido appeared for the company. Both gave sworn evidence and made submissions.
Extension of Time
[5] It was common ground that Mr Denver was dismissed from his employment with Di Placido on 7 June 2018. His unfair dismissal application was lodged on 29 June 2018. Section 394(2) of the Act states that an application for an unfair dismissal remedy 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 period of 21 days ended at midnight on 28 June 2018. Mr Denver’s application was lodged one day out of time.
[6] Before I deal with the specific matters that the Act requires me to take into account, I will make some brief observations about the principles that are to be applied in considering whether I should exercise my discretion to extend time. The Act allows me to extend the period within which an unfair dismissal application must be made only if I am satisfied that there are ‘exceptional circumstances’.
[7] The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),2 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.3 Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s 365 of the Act, its reasoning is applicable also to s 394(3).
[8] In order for Mr Denver’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time to make the application, under s 394(3). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[9] As the parties were unrepresented, I read out these considerations during the hearing, and invited them to make any further submissions in relation to them and the question of whether there were exceptional circumstances. I will deal with the above matters in turn.
Reasons for the delay
[10] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable 4 or a reasonable explanation.5
[11] In respect of the reason for delay in lodging his application, Mr Denver submitted that he sought to lodge his application on 28 June 2018, but could not do so without certain information from the company, which he needed in order to particularise his claim. Mr Denver said that he was not able to access this data as his remote work logins were no longer active, and therefore he attended his former workplace the following morning, obtained the information, and filed his unfair dismissal application later that day.
[12] I do not consider this to be an acceptable or reasonable explanation for Mr Denver’s delay in lodging his application. Mr Denver was attending to the completion of his unfair dismissal application at the end of the 21 day period. He said that he had been very busy. But this is hardly an exceptional circumstance. Nor is leaving the application until the last minute, and finding that further information is required. In fact, there was nothing to prevent Mr Denver lodging his unfair dismissal application on time, obtaining the relevant details later, and then filing them as part of his submissions and evidence. Mr Denver evidently thought the relevant details had to be included in his application. But lack of knowledge about the legal or procedural requirements is not an exceptional circumstance or a good reason for delay. He could have easily checked the relevant requirements by calling the Commission or consulting the information on the Commission’s website.
[13] The lack of an acceptable or reasonable explanation for the delay in Mr Denver lodging his unfair dismissal application weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[14] Mr Denver’s application states that he was notified of his dismissal on the same day that it took effect. The company agrees. As a consequence, Mr Denver had the full period of 21 days to lodge an unfair dismissal application. This is not a case where the person became aware of the dismissal after the date on which it took effect, and therefore did not have the full benefit of the 21 day period for lodging an unfair dismissal claim. This consideration therefore does not weigh in favour of an extension of time.
Action taken to dispute the dismissal
[15] Mr Denver contended that he asked Mr Di Placido why he was being dismissed, and that he also requested mediation of the matter. However I do not consider these requests to constitute or point to action taken by Mr Denver to dispute the dismissal. No other relevant action was referred to by the parties. This consideration therefore does not weigh in favour of an extension of time.
Prejudice to the employer
[16] Di Placido did not present any convincing reason why it would suffer prejudice if the Commission were to extend the 21 day period. I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. However, the mere absence of prejudice is not itself a factor that would warrant or point in favour of the grant of extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
[17] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. There is insufficient material before me to make any detailed assessment of the merits. However, a preliminary assessment is possible, based on the materials filed and contentions of the parties.
[18] Mr Denver contends on 21 May 2018, he was advised that a new commission structure would be introduced retrospectively from the start of May. On 25 May 2018, Mr Denver told Mr Di Placido that he was not happy with the changes. He was told that they were not up for negotiation. On 6 June 2018, Mr Denver advised the company that he rejected the proposed retrospective changes, but was willing to accept them as of 1 June 2018, rather than as of 1 May 2018. The next day, Mr Di Placido told Mr Denver that they were not ‘on the same page’, and that he was no longer employed in the role of business manager.
[19] The company’s position was that it did not need to provide a reason for dismissing Mr Denver. Mr Di Placido considered that the working relationship between Mr Denver and the company was not working out well, and that, as Mr Denver had not yet served the six month minimum employment period, the company could dismiss him without specifying a reason or going through any particular process.
[20] The merits of the application would need to be fully examined if an extension of time were granted and the matter proceeded. However, leaving jurisdictional issues to one side and focusing on merit, Mr Denver appears to me to have a reasonable prima facie case that he was unfairly dismissed. No reason was offered for the dismissal, nor was there an opportunity to respond to any reasons. Mr Denver was dismissed without notice. Of course, the company proceeded on the basis that Mr Denver was still serving a probation period (in effect, the minimum employment period), and that it was not required to do any of these things. However that position goes to jurisdiction, not the merits of the application.
[21] I consider that the merits of the case, which s 394(3)(e) requires me to take into account, weigh in favour of an extension of time.
Fairness as between the person and other persons in a similar position
[22] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Mr Denver and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion in relation to extension of time
[23] The time limit that applies to the exercise of a person’s right to bring an unfair dismissal application reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there will be some cases where a late application should be accepted, namely where there are exceptional circumstances.
[24] Having regard to all of the matters that I am required to take into account under s 394(3), I am not satisfied that exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. The merits of the application weigh in favour of an extension of time, but none of the other considerations do so. In my view, the circumstances of this case are not exceptional, either individually or when considered together.
[25] I decline to grant an extension of time under s 394(3). It is therefore not necessary for me to determine the company’s second jurisdictional objection.
Conclusion
[26] Mr Denver’s unfair dismissal application is dismissed for want of jurisdiction.
DEPUTY PRESIDENT
Appearances:
Mr D. Denver for himself
Mr L. Di Placido for Di Placido Group Pty Ltd
Hearing details:
2018
Melbourne with telephone link to Perth
31 August
Printed by authority of the Commonwealth Government Printer
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1 Stogiannidis v Victorian Frozen Foods DistributorsPty Ltd[2018] FWCFB 901 at [14]
2 [2011] FWAFB 975
3 At [13]
4 Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
5 Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP, at [16]
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