Gani Ardolli v Money Talk Pty Ltd T/A Money Talk Planners

[2015] FWC 4557

[2015] FWC 4557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gani Ardolli
v
Money Talk Pty Ltd T/A Money Talk Planners
(U2015/3151)

COMMISSIONER GREGORY MELBOURNE, 6 AUGUST 2015

Application for extension of time.

Introduction

[1] Mr Gani Ardolli was employed by Money Talk Pty Ltd T/A Money Talk Planners (“Money Talk”) on 30 July 2012 as a Paraplanner/Financial Planner. However, on 22 December 2015 he was told he was being terminated due to unsatisfactory work performance, with effect from the following day.

[2] Mr Ardolli then made application under the general protections provisions of the Fair Work Act 2009. 1 The application was dealt with in conference on 10 February 2015 when Mr Ardolli then realised he had lodged the wrong application, having intended to pursue an application for unfair dismissal. He then withdrew the original application on 16 February and lodged this application on the same day, 55 days after he was dismissed. He now seeks additional time in which to make application.

[3] Mr Ardolli appeared on his own behalf. Mr Brendan Charles of Sparke Helmore Lawyers was granted leave to appear on behalf of the Respondent under s.596(2)(b) of the Act.

The Issue to be Decided

[4] Section 394(2) provides that an unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under subsection (3).

[5] Section 394(3) continues to provide that the Commission may allow a further period in which to make application if it is satisfied there are “exceptional circumstances” taking into account:

“(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.” 2

[6] Mr Ardolli’s unfair dismissal application was clearly lodged outside of the 21 day period provided for in s.394. Therefore, are there “exceptional circumstances” existing, having regard to the considerations in s.394(3), to warrant the Commission exercising its discretion to grant Mr Ardolli additional time to make application?

Evidence and Submissions

[7] Mr Ardolli submits he was informed of his dismissal on 21 December 2014 after he returned to work following two days of sick leave. He said he went to see the Practice Principal of the business, Mr Tony Salvatore, to provide a medical certificate regarding his leave, but was told, “‘I looked at the situation and made a decision to let you go’, or words to that effect.” 3

[8] Mr Ardolli said he “attempted to understand what he was going on about” 4 and told Mr Salvatore he believed the dismissal letter he was provided with was “untrue and inaccurate”5. He also submits he was not given an opportunity to discuss his dismissal, and a second warning letter that Money Talk relies upon is “untrue,” as it was never provided to him.6 He also submits his dismissal was unfair as he had previously requested to be given “early notice” in the event he was going to be dismissed. He also believes he is “the casualty of the employer hiring two new younger persons at much lower wage”.7

[9] As indicated, Mr Ardolli initially lodged a General Protections application. It was listed for conference on 10 February 2015. He submits it was at this time he became aware he had lodged the wrong application. He states in his submission:

“I initially communicated with FWA on the 22nd December 2014, by e-mail and latter (sic) I received instructions on how to seek the information, I was not able to locate the appropriate forms and I called to ask for guidance/advice on how to get the right form, the person that I spoke to asked what was the issue and then I explained what has eventuated and she suggested that I read through the information and if it was a small business the " general protection might be the way to go" I have since requested withdrawal of that application and therefore lodged the correct application.” 8

[10] Mr Ardolli also states:

“I only become aware of the incorrect application on the day of the hearing. This application was delayed by six more days this is because the commissioner gave me time to seek legal advice. Accordingly, I have spoken to numerous legal firms but the fees were to (sic) expensive for me and then made a decision to withdraw the general protection Application and made this application.

I made this application on the grounds that I believe that I am legally entitled to seek justice through the legal process and not because the initial application was unsatisfactory.” 9

[11] Money Talk submits in response “the applicant has failed to demonstrate any exceptional circumstances upon which the FWC can be satisfied in order to exercise its discretion to extend the time period within which the application can be lodged.” 10 It submits Mr Ardolli’s reason for delay, being that he first lodged an incorrect application, is not an “exceptional circumstance.”11 It submits, in summary:

“(a) there is no clear evidence about what the applicant said when he was seeking assistance sufficient to make a finding that the suggestion made was wrong;

(b) on his own admission, the person the applicant spoke to suggested he look through the information and, if what the applicant asserts is correct, only suggested the application that might be the option for him. This in no way can be said to be definitive advice. The suggestion made is qualified. The applicant still had to do the work, and consider the information, before deciding on the course of action he wanted to take;

(c) the FWC cannot be said to be acting in the capacity of the Applicant's representative or advisor. The material provided by the FWC on its website sets out unambiguous disclaimers to the effect that the FWC cannot provide legal advice, and then provides some suggestions as to where advice could be obtained; and

(d) based on what the Applicant has said, he did not know the option to pursue. However, ignorance of the correct option to pursue on its own does not create an exceptional circumstance.” 12

[12] Money Talk relies on the decision in Mr Julian Nicholas Jr v Nortask Pty Ltd 13 (“Nortask”) in support of its submissions. In that matter the Applicant filed an unfair dismissal application, purportedly on the basis of advice received from the Fair Work Ombudsman. The matter was initially dealt with in conference by a telephone conciliator. Following that conference the Applicant withdrew the unfair dismissal application and made application under s.365. However, by this time the application was lodged well outside of the 21 day period provided for in the Act. The Commission subsequently found there were no “exceptional circumstances” to warrant an exercise of the discretion to extend time to make application.

[13] Money Talk also relies on the decision of Commissioner Cargill in Mr David Mundell v Avon Products Pty Ltd 14. In that matter the Applicant lodged an unfair dismissal application 5 days after the applicable time period. The Applicant claimed he was not aware of the existence of the Commission or the ability to pursue an unfair dismissal application. He also claimed his former employer had not informed him about these options or entitlements. Commissioner Cargill held, in response, that ignorance of one’s legal rights did not give rise to an “exceptional circumstance,” and refused to exercise the discretion to allow further time to make application.

Consideration

[14] As indicated, in coming to a decision in this matter the Commission is required to take account of each of the matters in s.394(3). The question of what constitutes “exceptional circumstances” has also been considered in a number of decisions of this Tribunal. For example, the Full Bench in Nulty v Blue Star Group Pty Ltd 15 concluded:

“[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.” 16

[15] I now turn to deal with the application having regard to the considerations in s.394(3) the Commission must take account of, and the authorities that are relevant to determination of the matter.

(a) the reason for the delay

[16] Mr Ardolli submits he initially made contact with the Commission by email on 22 December 2014, the day that he was told he had been dismissed. He received some information in response and later spoke to a staff member at the Commission. He submits he was told if his former employer was a small business then “general protections might be the way to go.” 17 He then made application under s.365 and the matter was dealt with in Conference before Commissioner Roe on 10 February. It was then that Mr Ardolli realised he had lodged the wrong application. He stated:

“I was on the understanding that when I made inquiry that the application I was (sic) lodged was the correct application. And on the day of the hearing I was advised otherwise, saying that it was the wrong application. And because of that I asked to cease the first application and be given the opportunity to apply for a second application under the proper legislation.” 18

[17] In response to a question from the Commission Mr Ardolli confirmed that until the Conference he was under the impression he had lodged an unfair dismissal application. 19 He was also asked about how long it took him to make a further application. He indicated in response:

“Well, it was about – yes, probably about six days because I was given seven days to submit it to make a decision what to do; whether to rescind the application all together or, you know, go ahead with what the first application was, or resubmit a second application. I was given seven days, and the opportunity to look for legal advice. I spoke to about three legal firms. One of them didn’t want to deal with a matter of that nature because I was on a small wage, and they wouldn’t deal with someone less than $100,000 a year. Another firm was wanting $520 per hour in advice fees and, being unemployed, I could not afford any of that, so I made the decision to just send in the rescinding of the first case and then re-apply for that proper application.” 20

[18] Money Talk submits Mr Ardolli’s contention that he was unaware he had made the wrong application, until the conference on 10 February, is not plausible. It submits he should have been aware from the outset about the difference between a general protections and an unfair dismissal application, and it also provided a response to his application on 15 January, making clear the general protections application was “misconceived”. 21

[19] In response to the reasons provided for the delay in lodging this application, Money Talk also states:

“…the applicant has not identified any exceptional circumstances at all that should move the Commission to exercise its discretion to extend the time within which the application may be lodged. Simply put, Commissioner, making the wrong decision, as the applicant has done, in commencing a General Protections application within the 21 day time limit after his employment came to an end, then changing his mind at a later time, when it had been on occasions pointed out to him that he had commenced the incorrect application, is not an exceptional circumstances.” 22

[20] Money Talk also submits the “simple fact that the applicant made the wrong choice, and then later decides to pursue a different course of action, does not create an exceptional circumstance”. 23 It refers to the decision in Mundell v Avon Products Pty Ltd24in support ofthis submission whenCommissioner Cargill found:

“Ignorance of your legal rights and, by inference, the existence of any institution in which you may be able to pursue those rights, does not give rise to an exceptional circumstance.” 25

(b) whether the person first became aware of the dismissal after it had taken effect

[21] This does not appear to be of any significance in this matter. It was made clear to Mr Ardolli on his final day at work that he had been terminated.

(c) any action taken by the person to dispute the dismissal

[22] Mr Ardolli submits he told Money Talk the information in his termination letter was “untrue and inaccurate” 26 when the letter was given to him. He also submits he was not given an opportunity to discuss the circumstances of his dismissal and was told to leave the premises immediately “like I was some sort of criminal”27.

[23] Mr Ardolli then lodged the s.365 General Protections application on 7 January, within the requisite 21 day time limit. As indicated, the matter was listed for conference on 10 February, and it was during this conference that Mr Ardolli became aware he had not, in fact, lodged an unfair dismissal application. He then lodged this application six days later. He submits this further delay occurred because it was suggested to him in the conference that he take some time to make up his mind about how he wished to proceed before deciding whether to withdraw the s.365 application.

[24] Money Talk submits Mr Ardolli sent a letter on 6 January 2015 “responding to the reasons given for the termination of his employment.” 28 He then lodged the General Protections application on 7 January and the subsequent unfair dismissal application on 16 February. It refers to the following extract from the decision in Nortask:

“...the fact that Mr Nicolas contested his dismissal by making two applications in relation to the same factual circumstances, is not a factor that weighs in Mr Nicolas' favour.” 29

(d) prejudice to the employer (including prejudice caused by the delay)

[25] Money Talk submits it has now incurred the cost of having to respond to two separate applications lodged by Mr Ardolli. It was initially required to prepare for and attend the conference to do with the General Protections application and has now had to respond to this application. It accordingly submits this consideration is not a neutral matter, and it has already suffered significant prejudice. It again refers to the decision in Nortask when Deputy President Asbury stated:

“Nortask submits, and I accept, that it will suffer prejudice if an extension of time is granted to Mr Nicolas to file his application for the Commission to deal with a General Protections dispute. Nortask has expended time, effort and cost responding to an unfair dismissal application and will have to expend further time, effort and cost to respond to the general protections claim if the time in which to make it is extended. This is above and beyond the prejudice that attaches to simply being required to defend an application.” 30

[26] There will always be some prejudice to an employer if the discretion is exercised to grant additional time in which to make application, given the employer will then be required to prepare its response to the application. I am satisfied this situation is exacerbated in the present matter, given Money Talk has now had to respond to two separate applications.

(e) the merits of the application

[27] Both parties made submissions about the merits of the application. The witness statement provided by Mr Tony Salvatore, on behalf of Money Talk, makes reference to a number of issues he had with Mr Ardolli’s performance and the steps taken in response. Mr Ardolli also made some acknowledgement about issues to do with his work performance. However, in cross examination he also referred to a range of other matters. For example, he suggested issues to do with his work performance could be attributed to the fact there were inadequate computer and information systems in place. He also took issue with whether discussions he had with Mr Salvatore actually constituted warnings. He also denied receiving warning letters Money Talk says he was given. He also suggested he had been set up to fail, and his dismissal was motivated by an intention to employ younger people on lower wages in his place.

[28] However, I am not satisfied I am able to form a concluded view about the respective merits of the application, given the submissions and evidence now before the Commission. I also note a Full Bench of the Commission has previously found, it is not necessary to embark on a detailed consideration of the substantive case in an application of this kind. 31 The Full Bench also held that while the issue of merit is important, the exercise of the discretion to grant additional time should have primary regard to the circumstances that led to the late lodgement.

(f) fairness as between the person and other persons in a similar position

[29] Neither party made submissions suggesting this consideration was of any particular importance in the present matter.

Conclusion

[30] Mr Ardolli’s application was lodged 34 days outside the 21 day time period. Previous decisions of this Tribunal have emphasised that the requirement to comply with prescribed time limits is not a mere technical problem, but involves a failure to comply with substantive legislative provisions. The Act also makes clear that it is only in “exceptional circumstances” that the Commission should exercise the discretion available to it to extend the time for making application. Do these circumstances exist in this matter?

[31] Mr Ardolli contacted the Commission by email on the day he was dismissed to obtain information about his possible options. The evidence indicates he was provided with some information, in response, but was not directed to proceed in any specific way. He then proceeded, apparently by mistake, to lodge a general protections application, when his intention was to pursue an unfair dismissal claim. He apparently remained unaware of this mistake until the conference on 10 February, despite the Employer Response document filed by Money Talk on 15 January indicating his application was “misconceived.”

[32] Six days after being made aware of the nature of his application Mr Ardolli proceeded to discontinue that matter and lodge the present application. In summary, it appears he explored the options that might be available to him following his dismissal, but apparently through a combination of ignorance and inadvertence lodged the wrong application and now seeks an exercise of the Commission’s discretion to extend time in order to correct that mistake.

[33] I am not satisfied that the circumstances involved in this matter can be considered to be “exceptional.” Ignorance of the law and the Commission’s procedures are circumstances that are often encountered. As DP Asbury found in Nortask, “Ignorance of an option is not, of itself, an exceptional circumstance.” 32 I am also not persuaded that the evidence indicates Mr Ardolli was provided with incorrect or inappropriate advice at any stage. He appears instead to have been advised appropriately about his options, both following his initial contact with the Commission in December 2014, and in the conference in February. Unfortunately, he made an error, initially, in deciding which option to pursue.

[34] I have considered all the evidence and submissions provided by the parties in this matter. I have also had regard to each of the considerations in s.394(3) I am required to take account of, and the authorities I consider relevant to the determination of this matter. I am not satisfied that “exceptional circumstances” exist to warrant the Commission exercising its discretion to grant additional time in which to make application. The application is therefore dismissed.

COMMISSIONER

Appearances:

Mr Ardolli appeared on his own behalf.

Mr Brendan Charles of Sparke Helmore Lawyers appeared on behalf of the Respondent.

Hearing details:

2015.

Melbourne:

29 May.

 1   Matter C2015/1105

 2   Fair Work Act 2009 (Cth) at s.394(3)

 3   Applicant’s Outline of Argument: Objections at para 1b

 4   Applicant’s Outline of Argument: Objections at para 1e

 5   Ibid

 6   Ibid at 1h

 7   Ibid

 8   Ibid at 8a

 9   “Responses to the Objection” submitted by the Applicant at para 1.2

 10   Respondent’s Submissions dated 10 April 2015 at para 15

 11   Ibid at para 17

 12   Ibid at para 19

 13   [2014] FWC 5324

 14   [2013] FWC 1368

 15   [2011] FWAFB 975

 16   Ibid at [13]

 17   Applicant’s Outline of Argument: Objections at para 8a

 18   Transcript at PN80

 19   Ibid at PN82

 20   Ibid at PN84

 21   Respondent’s Submissions dated 10 April 2015 at para 24

 22   Transcript at PN181

 23   Respondent’s Submissions dated 10 April 2015 at para 22

 24   Above n.xiv

 25   Ibid at [21]

 26  Applicant’s Outline of Argument: Objections at para 1e

 27   Ibid at 1h

 28   Respondent’s Submissions dated 10 April 2015 at para 27

 29   [2014] FWC 5324 at [68] as quoted in Respondent’s Submissions dated 10 April 2015 at para 28

 30   Ibid at [69]

 31   Kyvelos v Champion Socks Pty Limited (Print T2421)

 32   Above n.xiii at [47]

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