David Peter Minutolo v Astern Group Pty Ltd
[2022] FWC 3295
•14 DECEMBER 2022
| [2022] FWC 3295 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Peter Minutolo
v
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 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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Consideration
Reason for the delay
The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[5] the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.[6] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[7]
As to the reason for the delay, Mr Minutolo submits that delay in lodgement was due to his mental health suffering due to “loss of job without clear understanding, loss of income which has caused a great deal of stress and anxiety”.[8] At the Determinative Conference Mr Minutolo said that following his termination of employment he was “really struggling”.
Mr Minutolo submitted a witness statement for Ms Ellis which stated Mr Minutolo “has struggled with the loss of his job which has caused a great deal of stress, anxiety and disappointment. His mental health has decreased…which unfortunately is the reason he missed the deadline of submitting the unfair dismissal form by the due date”.[9]
At the Determinative Conference Mr Minutolo further submitted that Ms Ellis was pregnant and on 30 October 2022 was admitted to hospital for an iron infusion. He said this was a day procedure and that Ms Ellis had been admitted in the morning and was discharged in the afternoon. Mr Minutolo also submitted that his father, who cared for his 2 year old son when he was at work, was admitted to hospital on 1 and 2 November 2022 for insect bites and this further contributed to the stress and reasons for the delay. At the Determinative Conference Mr Minutolo also said that he consulted a lawyer on about 3 November 2022 in relation to, amongst other things, lodging an unfair dismissal application against the Respondent.
I accept that Mr Minutolo was stressed and anxious following the termination of his employment. I also accept that the impending arrival of a new baby and the additional financial commitments that entails would likely have added to Mr Minutolo’s stress and anxiety. However, regrettably, stress and anxiety following the loss of one’s employment are a common reaction. It is not out of the ordinary, unusual, special or uncommon. Further, also regrettably, financial stress following the loss of one’s employment is also common. Most employees have financial commitments which are rendered, at the least, more difficult to meet following the loss of one’s employment. Additionally, Mr Minutolo provided no probative evidence of his asserted mental health issues and certainly no evidence that he was so incapacitated as to be unable to lodge the Application in time. Indeed, such a conclusion is contrary to Mr Minutolo’s ability to consult a lawyer on 3 November 2022. Accordingly, I do not consider Mr Minutolo’s mental health provides a reasonable or acceptable explanation for the delay.
As to Mr Minutolo’s partner being admitted for a day procedure on 30 October 2022 and the admission of his father to hospital for two days on 1 and 2 November 2022, both of these events occurred well before the expiry of the time for lodgement. They cannot, therefore, provide an explanation for the delay in lodgement. Further, given Mr Minutolo’s employment ended on 26 October 2022, I am unable to see how his father’s inability to care for his son (as he had while Mr Minutolo was at work) is relevant. Finally, Mr Minutolo was able to consult a lawyer on 3 November 2022. If Mr Minutolo was able to do so, I am unable to see why he was also not able to lodge the Application within time. Additionally, I note that Mr Minutolo consulted with his lawyer some 13 days prior to the expiry of the 21 day statutory lodgement period and was therefore well aware of his rights for a significant period of time prior to the expiry of that period.
In light of the above, I do not consider that Mr Minutolo has provided a reasonable or acceptable explanation for the delay in lodgement. This weighs against the grant of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
It is uncontested that Mr Minutolo became aware of the dismissal on 26 October 2022. I consider this weighs against granting an extension of time.
Action taken to dispute the dismissal
The Applicant submits that on 21 October 2022, following receiving notice of his termination, he spoke to Mr David Testolin, Director of the Respondent, as to why his employment was to end.[10] At the Determinative Conference Mr Minutolo was somewhat unclear as to what was said to Mr Testolin in that conversation. However, as I understand his evidence, he says that in the conversation of 21 October 2022 he objected to his employment ending, raising a range of matters, including the way in which he was encouraged to initially commence employment with the Respondent.
For present purposes, I am prepared to accept that in the conversation of 21 October 2022 Mr Minutolo disputed his dismissal. This weights in favour of a grant of an extension of time.
Prejudice to the employer
The Applicant submits that there is no prejudice to the employer.[11] The Respondent concedes, properly in my view, that the lateness of the application has not caused it any disadvantage or unfairness.[12]
The delay is relatively short. I am unable to identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
Mr Minutolo says that the termination “was personal” and the Respondent used loss of workload as a cover up and that he was terminated before other workers.[13] At the Determinative Conference Mr Minutolo further submitted that his dismissal was unfair as other employees who commenced after him had been retained in employment.
The Respondent says that the Applicant was dismissed due to a shortage of work and that the Applicant was given the required notice and paid out his entitlements.[14] At the Determinative Conference Mr Curran submitted that due process was followed and that other employees whose employment had not been terminated were not Leading Hands.
Given the interlocutory nature of these proceedings, and on the material currently available to the Commission, it is not possible to form a concluded view as to the merits of the Application. The evidence of the Applicant and the Respondent would need to be fully tested under oath. Accordingly, I consider the merits of the Application to be a neutral consideration.
Fairness as between the person and another person in a like position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind generally turn on their own facts.
At the Determinative Conference Mr Minutolo submitted that other employees and subcontractors employed after him had remained in employment. I do not consider this submission to be of assistance. Otherwise, the parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Minutolo and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 394 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the parties, I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Minutolo’s application.
Accordingly, I decline to grant an extension of time under section 394(3) of the Act for the filing of the Application.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
D Minutolo on his own behalf.
P Curran for the Respondent.
Hearing details:
2022
Melbourne
14 December 2022 (by Microsoft Teams)
Final written submissions:
Applicant: 5 December 2022
Respondent: 12 December 2022
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[4] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[5] [2018] FWCFB 901
[6] Ibid at [39]
[7] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
[8] Form F2 at q 1.6
[9] Witness statement of Ms Olivia Ellis
[10] Applicant’s Outline of Argument at 5
[11] Ibid at 6
[12] Respondent’s Outline of Argument at 1g
[13] Applicant’s Outline of Argument at 7
[14] Respondent’s Outline of Argument at 1h
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