Dorin Viespescu v Jaydec Construction Pty Ltd

[2016] FWC 1318

[2016] FWC 1318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dorin Viespescu
v
Jaydec Construction Pty Ltd
(U2016/4508)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 MARCH 2016

Application for relief from unfair dismissal.

[1] Mr Dorin Viespescu alleged that the termination of his employment by Jaydec Construction Pty Ltd (Jaydec) on 17 January 2016 was unfair.

[2] His unfair dismissal application lodged on 12 February 2016 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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."
[Endnotes not reproduced]

S.394(3)(a) The reason for the delay

[5] Mr Viespescu had a previous unfair dismissal matter against Jaydec in November 2015. That matter settled following conciliation with a Conciliator of the Commission. Mr Viespescu and Jaydec came to an agreement on 9 December 2015 on the following terms:

● Mr Viespescu was still employed by Jaydec;

● Mr Viespescu was to take scheduled leave from 13 December 2015 to 27 January 2016 and will return to work for Jaydec;

● Upon return from the scheduled leave, if there is not enough work or Mr Viespescu wanted to cease work with Jaydec, Jaydec would provide a good reference and will assist Mr Viespescu find new work and accommodation.

[6] The agreement was signed by both parties and was witnessed by a third party.

[7] Jaydec submits that despite the terms of the agreement, Mr Viepescu did not work on 10 and 11 December 2015. It says he did not provide a medical certificate or get permission to take these two days of leave.

[8] Mr Viespescu went on his scheduled leave to Romania and received an email from Jaydec on 17 January 2016 which terminated his employment. The letter outlines the reasons for his termination which include:

● Taking unscheduled leave;

● Making enquiries with Jaydec’s business contacts to actively seek employment; and

● Attempting to start a partnership with a subcontractor while he was still employed by Jaydec.

[9] Mr Viespescu says he returned to Australia on 28 January 2016 and that he contacted the Conciliator he previously dealt with on 2 February 2016. The Conciliator told him on 3 February 2016 that she was unable to provide legal advice but suggested he contact the Employment Law Centre.

[10] Mr Viespescu said that he understood that his original application was still open and that he was able to contact the Commission should he have any problems. He says that as the agreement was broken he thought he could pursue the original claim.

[11] Mr Viespescu further submitted that as English is not his first language he may have misunderstood instructions given by the Conciliator when the original matter settled.

[12] He said that as soon as he received the Conciliator’s advice on 3 February 2016 he sought advice from the Employment Law Centre whom he contacted on 9 February 2016 and he was told that he needed to lodge a new unfair dismissal application. Mr Viespescu said that as his written English was not very good he required assistance to complete the application form which he obtained from the ELC and the first available appointment for that was 12 February 2016. This application was lodged that day.
[13] Mr Viespescu said he did not do anything whilst he was in Romania because he was hoping to sort the matter out when he returned. Mr Viespescu said that he was not able to complete the application form in Romania and he did not know about the 21 day time limit.

[14] I accept that Mr Viespescu has a reasonable explanation for the delay. It was caused by a combination of factors. He was dismissed whilst out of Australia and his employer knew this. It is unusual for a person who settles an unfair dismissal claim to receive none of the benefits of that settlement. I accept it was reasonable for Mr Viespescu to seek advice in relation to his claim. Further I accept, despite Mr Emil Viespescu’s submission, that Mr Viespescu’s lack of proficiency with written English meant he required assistance. While Mr Viespescu should have acted with greater haste once he received advice, I am satisfied that the combination of factors faced by Mr Viespescu weigh in favour of a finding of exceptional circumstances.

S.394(3)(b) Whether the person first became aware of the dismissal after it had taken effect

[15] Mr Viespescu was notified of his dismissal on the day it took effect. Despite being overseas at the time, he had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

S.394(3) (c) Any actions taken by the person to dispute the dismissal

[16] Mr Viespescu submits that he was never provided with an opportunity to dispute his termination directly with Jaydec. However, once he found out that his original application was no longer open in the Commission, he sought legal advice and was aware that he had exceeded the 21 day time frame. I consider this criterion to be a neutral consideration.

S.394(3)(d) Prejudice to the employer (including prejudice caused by the delay)

[17] Jaydec did not call any evidence to support a finding that there was any prejudice to it if an extension of time were granted. This weighs in favour of a finding of exceptional circumstances.

S.394(3)(e) The merits of the application

[18] Jaydec submitted that it had a valid reason for the termination of Mr Viespescu’s employment. It said it had no work for Mr Viespescu and his position was redundant and it is a small business. It said Mr Viespescu had failed to comply with the terms of the agreement reached in December 2015 because he failed to attend work on 10 and 11 December 2015 before he took his approved leave. The letter of termination makes no reference to Mr Viespescu’s alleged unauthorized absence on 10 and 11 December 2015. It references matters that occurred prior to the earlier termination.

[19] Mr Viespescu submitted that he was unable to attend work on 10 and 11 December 2015 because he was homeless and did not have the appropriate clothing and equipment. He said he spoke to Mr Emil Viespescu on 11 December 2015 and he made no reference to him not being at work. He said that Jaydec reneged on the settlement agreement and dismissed him whilst he was on holidays.

[20] I am not able to make a final assessment of the merits as there are factual disputes, between the parties that have not been tested. However Mr Viespescu’s claim that he was unfairly dismissed is not without merit. If, as Mr Emil Viespescu says, this was a genuine redundancy there was no consultation with Mr Viespescu about it at all. This weighs in favour of a finding that there are exceptional circumstances.

S.394(3)(f) Fairness as between the person and other persons in a similar position

[21] There were no submissions that there were other persons in a similar position to Mr Viespescu.

Conclusion

[22] I am satisfied that there are exceptional circumstances. Mr Viespescu was terminated without notice whilst he was overseas on approved leave. He had a reasonable explanation for the delay. Mr Viespescu’s claim is not without merit. Having found that there are exceptional circumstances I will exercise my discretion to extend time. I do so because Mr Viespescu received none of the benefits of the terms of settlement he reached to resolve his earlier unfair dismissal claim. It would be unfair in those circumstances not to permit him to have his claim heard and determined. This application will be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

Mr Dorin Viespescu representing himself.

Mr Emil Viespescu representing Jaydec Construction Pty Ltd.

Hearing details:

2016;

Melbourne:

March 4.

 1   [2011] FWAFB 975.

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