Deacon Di Caprio v Ausmall United Pty Ltd

[2019] FWC 3137

[2019] FWC 3137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Deacon Di Caprio
v
Ausmall United Pty Ltd
(C2019/793)

DEPUTY PRESIDENT BOYCE SYDNEY, 9 MAY 2019

Application to deal with contraventions involving dismissal – application filed out of time - applicant misled by respondent’s managing director that his employment was being terminated to transfer his employment to another associated entity of the respondent – respondent’s managing director ceased contact with the applicant post dismissal – no transfer of employment eventuated - exceptional circumstances – extension of time granted.

[1] On 4 February 2019, Mr Deacon David Di Caprio (“Applicant”) lodged an Application pursuant to s.365 of the Fair Work Act 2009 (Cth)(“the Act”). His employment with Ausmall United Pty Ltd (“the Respondent”) was terminated (by the Respondent) on 28 December 2018.

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Fair Work Commission (Commission) may allow. 1 The 21 day period prescribed in s.366(1)(a) of the Act does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2

[3] The Applicant acknowledges that he lodged his Application 17 days outside of the statutory time limit. To be within time, the Applicant should have lodged his Application on or before 18 January 2019.

[4] On 2 May 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his application. The Respondent, despite having filed an F8A Response, and being repeatedly notified of the hearing, did not appear at the hearing. Mr Chongy (Leo) Lin, Managing Director of the Respondent, being the Respondent’s only contact, was unable to be contacted by the Fair Work Commission Registry, or my Chambers, prior to the hearing, or on the day of the hearing (despite repeated attempts to make such contact).

[5] I have determined that the Applicant’s request for an extension should be granted. These are the reasons for that decision.

Matters to be taken into account

[6] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(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.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3 A decision whether to extend time under s.366(2) involves the exercise of a discretion.4

[8] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. 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 (Nulty) 5as 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.” (emphasis added)

[9] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination, the circumstances may be such as reasonably to be regarded as exceptional. 6

[10] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[11] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight. Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 7 

[12] The Applicant asserts that his reasons for delay are that, despite his dismissal being effected instantly via email on 28 December 2018, the Applicant was at that time under the apprehension (directly from Mr Lin) that his termination was occurring only on the basis that Mr Lin would be re-employing the Applicant in another associated entity of the Respondent (recently created/registered by Mr Lin) at the same (albeit renovated) office premises.

[13] However, it appears that Mr Lin changed his mind post the termination of the Applicant. In this regard, there is evidence of text exchanges between the Applicant and Mr Lim up to 22 January 2019, whereby Mr Lin sets out various terms and conditions of the Applicant’s proposed new employment. In response to these text messages, the Applicant enquired of Mr Lin as to why his termination entitlements had not yet been paid (time in lieu, notice, outstanding annual leave, and unpaid bonus). Thereafter, Mr Lin abruptly ceased all communication with the Applicant.

[14] The Applicant’s reason for delay (in summary) is that he did not file his Application within the 21 day time period as he understood his termination to be merely a transfer of employment type situation, which he did not realise was false until late January 2019 (ie when Mr Lin ceased all further communication with him).

[15] The foregoing reasons for delay, especially by reference to the documentary evidence in the form of text messages and emails, are credible. They identify misleading conduct by Mr Lin towards the Applicant (including the reason/s for his termination of employment), in favour of a finding as to exceptional circumstances. Indeed, as the Applicant submits, had he been advised properly by Mr Lin that his employment was not being transferred but was being terminated, he would have lodged his Application earlier (ie within the 21 day time limit). This issue weighs in favour of the Applicant.

Action taken by the Applicant to dispute the dismissal

[16] There is evidence of the Applicant contacting Mr Lin about his purported transfer of employment within the 21 day time limit, and thereafter contacting Mr Lin to dispute his dismissal (ie despite Mr Lin ceasing all contact with the Applicant). This issue weighs in favour of the Applicant.

Prejudice to the employer

[17] The Applicant did not make any submissions as to prejudice to the Respondent. This is thus a neutral consideration in this matter.

Merits of the application

[18] Adverse action was taken by the Respondent in dismissing the Applicant on 28 December 2018.

[19] The Applicant asserts that he made various complaints to Mr Lin, including as to delayed wages payments, during his employment. These complaints go to the Respondent’s alleged non-compliance with “workplace laws”, and in relation to the Applicant’s own employment more generally.

[20] The Respondent has given no evidence that such complaints were not made, nor has it given evidence that such complaints were not the reason (or an operative reason) for the Applicant’s dismissal.

[21] On the current evidence, undisputed by the Respondent, the merits of the Application weigh in favour of the Applicant. 8

Fairness as between the Applicant and other persons in a like position

[22] The Applicant did not make any submissions on this issue and it is therefore a neutral consideration in this matter.

Conclusion

[23] As is evident from the analysis above, the matters that were the subject of evidence and submissions at the hearing weigh in favour of a conclusion that there are exceptional circumstances. None of the factors weigh against such a conclusion. I am persuaded therefore that there are indeed exceptional circumstances warranting an extension of time in this matter.

[24] I not aware of any persuasive discretionary consideration which would warrant an alternative conclusion.

[25] I will therefore allow the Applicant a further period within which to lodge his Application. The Application may be lodged by 4 February, 2019.

[26] The Application will be progressed by way of a conference at a time and date to be advised by the Registry.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

There was no appearance for the Respondent.

Hearing details:

2 May 2019, Sydney

Printed by authority of the Commonwealth Government Printer

<PR708055>

 1   Fair Work Act 2009 (Cth) s 366(1) and (2).

 2   See s.36 Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009; see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

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

 4   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 5   [2011] FWAFB 975.

 6   Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 (at [13]); see also Griffiths v The Queen (1989) 167 CLR 372 (at 379) (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [23]-[26]) (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 (at [65]) (Greenwood J).

 7   See Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 (at [31]–[33]); See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 8   Note: Fair Work Act 2009 (Cth) s.361; In relation to being “bold” as to relevant inferences to be drawn where a party fails to tender evidence at a hearing see, for example: SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyds Rep 288 (at 293); United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514 (at [74]-[75]); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333 (at [37]).