David Santi v Central Hotel Hobart

[2021] FWC 3287

[2021] FWC 3287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Santi
v
Central Hotel Hobart
(U2021/3983)

COMMISSIONER WILSON MELBOURNE, 9 JUNE 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by David Santi alleging unfair dismissal against the Central Hotel, Hobart. Mr Santi’s application for unfair dismissal remedy under the Fair Work Act 2009 (the Act) was lodged in the Fair Work Commission on Monday, 10 May 2021.

[2] Section 394(2) of the Act requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). The Central Hotel submits, and I accept, that Mr Santi’s dismissal was notified to him on Thursday, 8 April 2021 and that it took effect on the same date. It follows that Mr Santi’s application was made outside of the statutory time limit which ended on Thursday, 29 April 2021. As a result, an extension of time is required for his application in order it may continue.

[3] The Central Hotel objects to there being an extension of time for the filing of Mr Santi’s unfair dismissal application.

[4] Evidence was received from Mr Santi on his own behalf and from Mr Paul Jubb, the Central Hotel’s co-owner. Mr Santi represented himself and Allison Park, Industrial and Employment Relations Manager from the Tasmanian Hospitality Association represented the Central Hotel.

[5] For the reasons set out below I am satisfied there are not exceptional circumstances in Mr Santi’s case and that an extension of time should not be granted for the making of his unfair dismissal application.

[6] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria specified within s.394(3). The Full Bench has held that the test for granting an extension of time involves both a broad discretion 1 and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.2

[7] Mr Santi worked for the Central Hotel in a full-time capacity as the hotel’s Assistant Manager from 3 June 2019, and had worked for the hotel in a casual capacity for an earlier time as well, from late in 2016. In April 2021 the hotel’s co-owner, Paul Jubb notified Mr Santi that his employment would end, for reason of redundancy. Mr Santi accepts Mr Jubb’s evidence that the conversation between the two took place on Thursday, 9 April 2021 and that Mr Jubb told him he would be made redundant. Mr Santi’s evidence about the discussion included that he said to Mr Jubb that he was willing to continue working for the hotel, even in a casual capacity. Mr Jubb denies that subject was discussed in the meeting as well as saying he had explained he was motivated to make the changes for several reasons related to his need to maintain the trading viability of his hotel group. Mr Santi accepted in the hearing that he left Hobart the next day for an interstate trip, but argues the trip came about because he had lost his job and could take the time off.

[8] Mr Santi’s acceptance in the hearing of 8 April 2021 as the date of his dismissal overcomes some discrepancies in the parties’ documents on the subject. Mr Santi’s application form refers to his termination taking effect on 16 April 2021. A letter to Mr Santi from the hotel dated 12 April 2021 confirmed to him that his employment would end on 11 April 2021 for reason of redundancy. Mr Jubb explained the date in the letter as actually being a reference to the end of the pay week in which Mr Santi was dismissed and recollects that he met with Mr Santi in the afternoon of 8 April 2021 after an earlier meeting with Ms Park of the Tasmanian Hospitality Association, the date of which he diarised. After considering these differences and the things said by each in the hearing, I am satisfied the date on which Mr Santi’s dismissal took effect is Thursday, 8 April 2021.

[9] It follows that the last day for Mr Santi to file an “in time” unfair dismissal application was Thursday, 29 April 2021, and that since the application was actually filed on Monday, 10 May 2021 it is 11 days out of time.

LEGISLATION

[10] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:

“394 Application for unfair dismissal remedy

(1) ….

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

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[11] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria.

[12] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”  3 

[13] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 4

[14] In considering whether an extension of time should be granted to Mr Santi, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[15] The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.6 An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.7 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.8

[16] The delay to be considered in matters such as these is the delay in making the application after the expiry of the statutory time limit. In Mr Santi’s case, the relevant period to be considered is that after the last day for a lodgement to be within time, namely Thursday, 29 April 2021.

[17] Mr Santi set out in his application form the reasons for having made a late application;

“I was offered a redundancy payment from my assistant manager position but with no option to continue in another capacity in the business, even though I offered to do so due to staff shortages. I was told that there was a management restructure happening with the owners Son coming to manage. I had weeks of non communication and the restructure didn't occur, with a supervisor under me now offered the manager role. I was given no reasons as to why I could not continue. I have only just become aware of the laws regarding a not genuine redundancy, hence the delay in my application.” 9

[18] Mr Santi restated in his oral evidence that he did not know the laws relating to genuine redundancy and making of unfair dismissal applications. He learned of those things through his own online research and did not know of the 21 day time limit until after he had made his application. Mr Santi also gave evidence that he was encouraged to make an application at various times by friends and family. There is not a clear or compelling timeframe about when these things occurred, and the evidence given by Mr Santi leads me to conclude that his actual consideration of making an unfair dismissal application was not until very close to and possibly only on the day he filed his application, Monday, 10 May 2021.

[19] The explanation upon which Mr Santi relies includes these matters; there was a period after he was dismissed with no confirmation to him from the Central Hotel about his position; he learned that Mr Jubb’s son was to be employed in the hotel, including for the purpose of performing duties Mr Santi previously performed; and that situation caused him to question the legitimacy of the explanation given to him for his dismissal, namely of genuine redundancy. Not being aware of his rights in relation to what was a genuine redundancy or not, or how his dismissal could be challenged, he did not know he could make an unfair dismissal application.

[20] The arguments by Mr Santi that he was not consulted about the redundancy or considered for redeployment are matters of merit which go to the question of whether his dismissal was a genuine redundancy, as does the question of whether the Mr Jubb’s son was moved into the job once performed by Mr Santi. Whereas the former matters involve an understanding of the laws associated with unfair dismissal, the possible interposition of Mr Jubb’s son more involves a state of knowledge. The evidence is that Mr Santi was aware of the situation of Mr Jubb’s son on the date he was dismissed. Mr Santi’s belief that such was unfair likely formed at around the same time and not considerably later.

[21] Mr Santi says both that he did not know about the genuine redundancy laws and that friends and family encouraged him to make an unfair dismissal application. The two are not necessarily contradictory – one can follow the other – however for them to be taken into account as an acceptable explanation of the reason for the delay in making an unfair dismissal application would require there be a coherent timeframe of what knowledge was acquired when.

[22] The only explanation given in this matter is that Mr Santi did not know he could challenge his dismissal and certainly did not know of the time limit. Of itself, such is an insufficient explanation, with it being the case that mere ignorance of the statutory time limit is not an exceptional circumstance.  10 In the absence of greater circumstances that would weigh in favour of a finding of exceptionality, it follows that Mr Santi has not provided the Commission with an acceptable explanation for the delay in making his unfair dismissal application.

[23] Accordingly, my assessment is that consideration of this criterion does not resolve in favour of Mr Santi for the granting of an extension of time for the making of his application.

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

[24] Mr Santi was informed his employment would end on Thursday, 8 April 2021, which was also the same day it took effect. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[25] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 11

[26] The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time” 12 (underlining added).

[27] Mr Santi did not dispute his dismissal other than by commencing this application. Accordingly, this also is a neutral factor in my consideration of whether an extension of time should be granted for the making of the unfair dismissal application.

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

[28] The delay in the filing of the application is 11 days.

[29] The Respondent points to incidental prejudice that may arise to it if the Applicant were granted an extension of time for the filing of his application, related to its view Mr Santi’s termination was a genuine redundancy. In particular, it argues;

“a. The re-distribution of some tasks has been undertaken with existing staff, accordingly the primary remedy of the reinstatement of Mr Santi would cause significant disruption to the remaining team members

b. Future planning has been undertaken around the elimination of the role held by Mr Santi

c. Costs have been incurred in the undertaking of the redundancy” 13

[30] While noting these matters, it is not the case that they would be prejudice of such a type as to prevent the Respondent from mounting its defence to an unfair dismissal action and, to the extent the indicated matters relate to how it organises its business or has paid severance pay to Mr Santi are matters that could be dealt with in the course of any orders contemplated by the Commission if a finding of unfair dismissal was made. As a result, consideration of this criterion is also a neutral factor in considering whether there were not exceptional circumstances.

5. The merits of the application

[31] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[32] At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters. 14 Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.15

[33] Mr Santi’s case involves several contentions that, if accepted by the Commission, may lead to a finding that his dismissal was not a genuine redundancy within the meaning of s.389. He argues that his role or significant elements of it has been taken over by Mr Jubb’s son and other people when s.389(1)(a) requires a finding the employer no longer required the job to be performed by anyone because of changes in the operational requirements of the enterprise. Mr Santi also contends that the Central Hotel did not comply with its award obligation to consult with him about the proposed redundancy or any measures which could be taken to mitigate the effects of the redundancy (s.389(1)(b)). Finally, Mr Santi argues that it may be found that it would have been reasonable in all the circumstances to redeploy him within the hotel. (s.389(2)).

[34] In response, the Central Hotel maintains that Mr Santi’s dismissal was a genuine redundancy, arguing;

“1. The dismissal was a genuine case of redundancy

2. Consideration of redeployment occurred and all alternatives were exhausted

3. Procedural fairness was afforded

4. All entitlements were paid speedily

5. The role has been eliminated

6. Claims that another individual has been appointed into the role are most incorrect” 16

[35] I also take account of the fact that Mr Santi obtained new employment relatively close to his termination date, on 25 May 2021. While I am not aware of the earnings Mr Santi has received in his new position, or how its security compares with his former employment, it is appropriate to note that the proximity of the new employment is a matter that would be required to be taken into account by the Commission in the event it considered compensation to him for an unfair dismissal.

[36] It is the case in this matter, as with most extension of time matters, that the uncertainties about each party’s case lean toward a finding that consideration of the merits of the case is a neutral factor (and my observations about earnings from post-termination employment do not disturb that view).

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

[37] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 17 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.18 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues.19

[38] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Santi.

[39] As a result, Mr Santi’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr D. Santi for himself.

Ms A. Park for the Respondent.

Hearing details:

Melbourne (via telephone);
8 June;
2021.

Printed by authority of the Commonwealth Government Printer

<PR730544>

 1   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].

 3   Nulty v Blue Star Group, 2011, 203 IR 1, [13].

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].

 7   Ibid, [40].

 8   Ibid, [41].

 9   Form F2, Unfair Dismissal Application Form, item 1.5; Hearing Book, p.2.

 10   Nulty v Blue Star Group, 2011, 203 IR 1, [13].

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

 12   Ibid.

 13   Form F3, Employer Response Form, item 2.2.4, Hearing Book, p.9.

 14   Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].

 15   Haining v Deputy President Drake (1998) 87 FCR 248, [250].

 16   Exhibit R1, Respondent Outline of Argument: Extension of Time, item 1h; Hearing Book, p23.

 17   Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

 18   Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].

 19   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].