Gabriel Mangafas v TFH Hire Services Pty Ltd
[2023] FWC 420
•21 FEBRUARY 2023
| [2023] FWC 420 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gabriel Mangafas
v
TFH Hire Services Pty Ltd
(U2023/12)
| COMMISSIONER MCKINNON | SYDNEY, 21 FEBRUARY 2023 |
Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed
Mr Gabriel Mangafas was employed by TFH Hire Services Pty Ltd (TFH Hire) from 29 April 2022 until 15 December 2022. On 6 January 2023, Mr Mangafas applied for an unfair dismissal remedy. The application was filed one day late. The question is whether additional time should be allowed for Mr Mangafas to make the application to the Commission.
I have decided not to allow additional time for Mr Mangafas to make the application. The application will be dismissed. These are my reasons.
Extension of time
Under s.394(2), additional time may be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances. The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.”
Matters to be taken into account when deciding whether to grant additional time are prescribed by s.394(3) of the Act. These are:
· the reason for the delay,
· whether the person first became aware of the dismissal after it had taken effect,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay: The reason given by Mr Mangafas in this case for the late filing of his application is that he was either not aware of the 21-day lodgement period or he did not pay it too much attention. For the first 7 to 10 days after dismissal, he was experiencing anxiety and depression and his doctor prescribed medication, which helped. Mr Mangafas submits that he received legal advice and did not want to “go that path” as only the solicitors would benefit. Once his mind was clear, and phone calls to TFH Hire to resolve his concerns went unanswered, Mr Mangafas rang the Fair Work Ombudsman. He was given a link to information about unfair dismissals and how to download the application form.
Mr Mangafas is over 70 years old and lives in an area with poor internet connectivity. He has no printer. He had trouble using the computer to apply to the Commission and became frustrated. On 6 January 2023, he rang and made an application over the phone (which was subsequently completed by post on 20 January 2023). The phone call was made on the 22nd day after his dismissal.
Other reasons given by Mr Mangafas for the delay in making his application, including a case number error made by the Commission and the time it took to receive, complete and return a copy of his application by post, relate to the period after the application was lodged. These are not relevant to whether an extension of time should be allowed.
Whether the person first became aware of the dismissal after it had taken effect: Mr Mangafas knew of the dismissal immediately. It was communicated to him in a meeting in the office of TFH Hire with Daniel Kafrouni, Senior Operations Manager NSW, and a member of the Board. Mr Mangafas was given a letter of termination and read it straight away. He knew then that he had “been sacked”. He went outside for a cigarette with Mr Kafrouni, during which he expressed his shock and dismay at what had happened. He was taken on a tour of the premises to say goodbye and escorted out of the premises.
Any action taken by the person to dispute the dismissal: Mr Mangafas rang Mr Ian Rogers, National Safety and HR Manager, at least twice after the dismissal. Mr Rogers was overseas on leave and did not respond until 20 January 2023. In the meantime, Mr Mangafas emailed Mr Kafrouni about his unsuccessful attempts to contact Mr Rogers. On 23 December 2022, Mr Mangafas rang the Fair Work Ombudsman and was given a link to the unfair dismissal application form. He said he would try to download it and that if he had problems, he would call back. He then thought about what to do. In early January 2023, he tried to use his computer to apply to the Commission. After becoming frustrated, he rang the Commission and was assisted to make an application over the phone on 6 January 2023.
Prejudice to the employer (including prejudice caused by the delay): There is no prejudice to TFH Hire if the application proceeds 1 day late.
Merits of the application: The reasons given for dismissal are conduct‑based and are in dispute. Mr Mangafas says he worked to the best of his ability and that untrue comments have been made about his work. He says that TFH Hire had no valid reason for dismissal and questions the process it undertook to terminate his employment. TFH Hire submits that it had a valid reason for dismissal due to a failure to follow procedure, putting others at risk. TFH Hire submits that its process in relation to the dismissal was appropriate and executed by a qualified and experienced HR professional. It further submits that Mr Mangafas was interviewed and offered a support person. Given the extent of the factual dispute between the parties, the merits of the case could only be assessed fairly on a full hearing of the case.
Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.
Conclusion
It is a relatively common experience to not know about, or pay much heed to the 21‑day deadline associated with unfair dismissal claims. The same can be said for the experience of distress in connection with termination of employment, including anxiety and depression.
Mr Mangafas knew that he had been dismissed as soon as the dismissal occurred. He took some steps toward the end of 2022 to seek to resolve his concerns about the dismissal – firstly with TFH Hire when he felt able to do so and then when these went unanswered, with the Fair Work Ombudsman and one or more legal advisers. Initially, he decided not to pursue the matter. He subsequently had a change of mind. I accept that Mr Mangafas is over 70 years old and experienced technological difficulties and unreliable internet access in connection with his application. However, for the most part, these issues arose in the period after the application was made. They did not stand in the way of his making an application over the phone to the Commission, which he eventually did on 6 January 2023.
The merits of the case are a neutral consideration because of the unresolved factual disputes between the parties. The potential for prejudice to TFH Hire does not arise as there is none, and fairness is not a relevant consideration in the circumstances.
On balance, I am not satisfied that there are exceptional circumstances in this case such as would allow me to grant additional time for Mr Mangafas to make the application. No extension of time can be allowed and the application must instead be dismissed.
On a separate matter, Mr Mangafas has expressed concern about payment of his entitlements on termination. TFH Hire undertook to email Mr Mangafas a copy of his final payslip after the hearing on 20 February 2023. If concerns remain once the payslip is received, Mr Mangafas can seek advice from the Fair Work Ombudsman about the matter.
Disposition
The application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
G Mangafas on his own behalf.
I Rogers for the respondent.
Hearing details:
2023.
Sydney (by video).
February 20.
[1] [2011] 203 IR 1 at [13].
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