David Peter Minutolo v Astern Group Pty Ltd - [2022] FWC 3295

[2022] FWC 3295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Peter Minutolo

Astern Group Pty Ltd

(U2022/11054)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 14 DECEMBER 2022

Application for an unfair dismissal remedy– extension of time – circumstances not exceptional – application dismissed

This decision concerns an application by Mr David Peter Minutolo (Applicant) for an unfair dismissal remedy (Application) pursuant to section 394 of the Fair Work Act 2009 (Act). Section 394(2) of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 394(3).

It is uncontested that Mr Minutolo’s employment with Astern Group Pty Ltd (Respondent) ended on 26 October 2022. The Application was lodged on 18 November 2022. The period of 21 days ended at midnight on 16 November 2022 and the Application was therefore lodged 2 days out of time. Mr Minutolo seeks that the Commission allow a further period of time for the Application to be made. The Respondent opposes the grant of an extension of time.

The matter was listed for hearing before me on 14 December 2022 and was conducted by way of determinative conference (Determinative Conference). The Applicant appeared on his own behalf and Mr Peter Curran appeared on behalf of the Respondent. Ms Olivia Ellis, the Applicant’s partner, filed a witness statement on behalf of the Applicant and was not required for cross-examination by the Respondent. As such her witness statement is taken as the entirety of her evidence and she was not required to appear at the Determinative Conference.

Background and factual findings

Mr Minutolo commenced employment with the Respondent on 11 September 2021 in the role of a Plant Operator and most recently held the role of Leading Hand. It is uncontested that on 19 October 2022 the Respondent contacted Mr Minutolo and advised him that due to a reduction in work, his employment may be terminated in the next few weeks. The following day, on 20 October 2022, by letter of the same date, the Respondent terminated Mr Minutolo’s employment, effective 26 October 2022.

It is uncontested that Mr Minutolo’s employment with the Respondent terminated on 26 October 2022.

Consideration

The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2]

Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of…

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.

Keep reading for free

Create a free CaseChat account to read David Peter Minutolo v Astern Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 3295
Decision Date: 14 DECEMBER 2022

CaseChat Overview and Summary

This case involved an application by Mr David Peter Minutolo for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The application was lodged two days beyond the statutory deadline of 21 days. Mr Minutolo sought an extension of time to lodge the application, which the employer opposed. The key legal issue was whether there were exceptional circumstances that warranted the extension of time. The Fair Work Commission examined several factors, including the reason for the delay, whether the applicant became aware of the dismissal after it had taken effect, any action taken by the applicant to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the applicant and other persons in a similar position.

The Commission concluded that Mr Minutolo had not provided a reasonable or acceptable explanation for the delay, as stress and anxiety following the loss of employment were common and not exceptional. Additionally, the other factors considered did not support the grant of an extension of time. The reason for the delay, the absence of prejudice to the employer, and the neutral considerations of the merits of the application and fairness to other employees did not establish exceptional circumstances. Consequently, the application for an extension of time was dismissed.

In summary, the Fair Work Commission found that the exceptional circumstances required for an extension of time under section 394(3) of the Fair Work Act were not present in this case. The application for an extension of time was therefore dismissed, and the unfair dismissal application was not accepted due to the late filing.

Orders