George Karavelas v Trivett Automotive Retail Pty Ltd
[2023] FWC 2579
•6 OCTOBER 2023
| [2023] FWC 2579 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
George Karavelas
v
Trivett Automotive Retail Pty Ltd
(U2023/7510)
| COMMISSIONER CRAWFORD | SYDNEY, 6 OCTOBER 2023 |
Unfair dismissal application filed out of time – extension not granted – application dismissed
Background
George Karavelas (Mr Karavelas) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Trivett Automotive Retail Pty Ltd (Trivett Automotive).
Mr Karavelas commenced employment with Trivett Automotive on 3 July 2006 and was engaged in the role of Head of Aftersales for New South Wales prior to being made redundant. Trivett Automotive is part of the Inchcape group which operates car dealerships.
Mr Karavelas was dismissed by Trivett Automotive on 1 July 2023 on account of redundancy. Trivett Australia stated it had decided to merge Mr Karvelas’ position and the Head of Aftersales in Victoria position into one combined Head of Aftersales for NSW/Victoria role. This merged role went to the Victorian manager and Mr Karvelas was made redundant. Mr Karavelas filed an unfair dismissal application on 12 August 2023.
Trivett Automotive has objected to the application on the ground that the application is out of time.
Before considering the merits of the application, the Commission must determine the jurisdictional issues identified in s.396 of the FW Act, one of which is whether the application was made out of time.[1]
Time limit for an unfair dismissal application
Section 394(2) of the FW Act provides that an unfair dismissal application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
Given Mr Karavelas was dismissed on 1 July 2023, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 22 July 2023. The application was filed on 12 August 2023. There is no dispute between the parties about these dates and hence that the application was filed 21 days outside the 21-day period. As a result, Mr Karavelas needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.
Was the application made within such further period as the Commission allows?
Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether Mr Karavelas first became aware of the dismissal after it had taken effect; and
(c) any action taken by Mr Karavelas 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 Mr Karavelas and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
Procedural history
On 7 September 2023, I issued directions for the filing of material and listed a hearing/determinative conference regarding the extension of time issue for 3 October 2023. The parties filed material in accordance with the directions.
At the commencement of the determinative conference/hearing on 20 September 2023, Trivett Automotive sought permission to be legally represented by Paul Almond from Paul Almond Employment Law. Mr Karavelas did not oppose permission being granted. I granted permission pursuant to s.596 of the FW Act on the basis I was satisfied it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Mr Karavelas represented himself.
I then sought the views of the parties concerning whether the proceeding should be conducted as a determinative conference or hearing, pursuant to s.399 of the FW Act. Mr Karavelas indicated a preference for a determinative conference. This was not opposed by Trivett Automotive. I decided a determinative conference would be conducted.
I then raised an issue concerning the employer named as respondent to the application. The Form F2 application filed by Mr Karavelas identified Inchcape Australia Limited as the respondent. The employer’s Form F3 response identified that Mr Karavelas was employed by Trivett Automotive. Trivett Automotive had previously raised an argument in its filed material that the application should be dismissed on the basis it was defective in naming the wrong respondent. I queried whether Mr Karavelas agreed Trivett Automotive was his employer. Mr Karavelas stated he did and that it was an error to name Inchcape. Mr Karavelas indicated Trivett Automotive is within the Inchcape group of companies. I then asked Mr Almond whether Trivett Automotive opposed me amending the application to reflect the correct employer pursuant to s.586 of the FW Act. Mr Almond indicated Trivett Automotive did not consent, but accepted it was a course open to the Commission and did not seek to make further submissions on the issue. I determined to amend the application to name Trivett Automotive as the respondent employer. I consider it was understandable for Mr Karavelas as an unrepresented applicant to not be overly familiar with the corporate structure of his employer and its related entities.
I then raised an issue concerning the remedy sought by Mr Karavelas in his Form F2 application. This was identified as “Disciplinary Action only”. I sought clarification from Mr Karavelas about what he was seeking. Mr Karavelas indicated he is primarily seeking that Trivett Automotive is held to account for the way he was treated. However, he also indicated that he became aware of the remedies that can be awarded in relation to an unfair dismissal application after he completed and filed the application. Mr Karavelas then clarified that the remedy he seeks is compensation. I then asked Mr Almond whether Trivett Automotive opposed me amending the application to identify the remedy sought as compensation. Mr Almond indicated there was no opposition to this course. I determined to amend the remedy part of Mr Karavelas’ unfair dismissal application to reflect the remedy sought as compensation pursuant to s.586 of the FW Act.
Material filed
Mr Karavelas
Mr Karavelas relied on the following material in support of his request for an extension of time to file an unfair dismissal application:
· Form F2 application dated 12 August 2023.
· Submission dated 4 September 2022 in support of an extension of time being granted.
· Submission dated 21 September 2023 in support of an extension of time being granted.
· A letter from Trivett Automotive to Mr Karavelas dated 19 June 2023 which provided notice that his position as Head of Aftersales for NSW was redundant. This letter was marked Exhibit A1.
· A letter from Trivett Automotive to Mr Karavelas dated 30 June 2023. This letter confirmed Mr Karavelas’ employment will terminate by reason of redundancy on 1 July 2023. The letter was marked Exhibit A2.
· A handwritten letter from Mr Karavelas to Colin Christie, Managing Director of the Inchape group of companies, dated 29 June 2023. Mr Karvelas’ letter raised various concerns with his treatment during the redundancy process. This letter was marked Exhibit A3.
· WorkCover NSW certificate dated 10 July 2023 which indicates Mr Karavelas had no work capacity from 10 to 20 July 2023. The certificate was marked Exhibit A4.
· A letter from icare to Mr Karavelas dated 20 July 2023 concerning his workers’ compensation claim. The letter was marked Exhibit A5.
· A medical certificate from Dr Leo Agagiotis dated 20 June 2023 which states Mr Karavelas is/was unfit for work from 19 June 2023 to 7 July 2023. The certificate was marked Exhibit A6.
· WorkCover NSW certificate dated 21 July 2023 which indicates Mr Karavelas had no work capacity from 21 July 2023 to 30 August 2023. The certificate was marked Exhibit A7.
· WorkCover NSW certificate dated 30 August 2023 which indicates Mr Karavelas had no work capacity from 30 August 2023 to 28 September 2023. The certificate was marked Exhibit A8.
· A medical certificate from Dr Howard Napper (Consultant Psychiatrist) dated 13 July 2023. This indicates Mr Karavelas was medically unfit for work from 10 July 2023 to 7 August 2023. The certificate was marked Exhibit A9.
· Witness statement of Mr Karavelas dated 20 September 2023. This contained the following attachments:
·A medical certificate from Dr Napper dated 4 September 2023. This certificate states:
“Mr Karavelas has been unwell from Bipolar Disorder and this prevented him from making informed decisions, adversely affecting his ability to focus, concentrate and organise his personal affairs. This cognitive impairment caused him to miss the deadline for his Fair Work Commission application.”
Trivett Autmotive objected to two sentences of this medical report which suggested bullying, harassment and discrimination at work may have contributed to Mr Karavelas’ condition. The objection was made on the basis that Dr Napper could not have possibly been in a position to make definitive statements on whether the relevant conduct occurred based only on Mr Karavelas’ evidence. I agree with this submission and Mr Karavelas did not oppose the two sentences being struck out of the report.
·A medical certificate from Dr Agagiotis dated 22 September 2023. This certificate was to the same effect as the certificate from Dr Napper. Trivett Automotive raised objections also to the same effect and the relevant parts were struck out without objection from Mr Karavelas.
Mr Karavelas’ statement was marked Exhibit A10.
Mr Karavelas was not cross-examined on his evidence. In response to a question from me, Mr Karavelas indicated during the determinative conference that his condition started to improve with treatment towards the end of July 2023 and that is why he was able to arrange for an unfair dismissal application to be filed on 12 August 2023.
Mr Karavelas also provided oral closing submissions at the end of the determinative conference.
Trivett Automotive
Trivett Automotive relied on the following material in opposition to the granting of an extension of time:
· Form F3 employer response dated 5 September 2023;
· Outline of submissions dated 15 September 2023; and
· Statement of Vittoria Barbara dated 15 September 2023. The statement contained the following attachments:
·VB 01: Mr Karevelas’ employment contract with Trivett Automotive dated 4 November 2019.
·VB 02: Email from Mr Karavelas to Ms Barbara dated 23 June 2023 where Mr Karavelas requested a copy of his employment contract.
·VB 03: Email from Mr Karevelas to Ms Barbara dated 13 July 2023 where Mr Karavelas attached a medical certificate.
·VB 04: Email from Mr Karavelas to Ms Barbara dated 14 July 2023 where Mr Karavelas queried his redundancy entitlements.
·VB 05: Email from Mr Karavelas to Ms Barbara dated 16 July 2023 where Mr Karavelas attached a medical certificate and requested payslips.
·VB 06: A second email from Mr Karavelas to Ms Barbara dated 16 July 2023 where Mr Karavelas again requested payslips.
·VB 07: Email from Mr Karavelas to Ms Barbara dated 20 July 2023 following up on his previous requests.
·VB 08: Emails between Ms Barbara and Mr Karavelas dated 31 July 2023 regarding the return of Mr Karavelas’ work vehicles.
Ms Barbara’s statement was marked Exhibit R1 and she was not cross-examined.
Mr Almond also provided oral closing submissions on behalf of Trivett Automotive at the end of the determinative conference.
Consideration
When did the dismissal take effect?
I accept Mr Karavelas’ dismissal took effect on 1 July 2023 as specified in the termination letter. This was not contested by Mr Karavelas.
When was the application made?
There is no dispute that Mr Karavelas filed his unfair dismissal application on 12 August 2023.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 22 July 2023. The delay is the period commencing immediately after that time until 12 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
Mr Karavelas does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Mr Karavelas has not provided any reason for any part of the delay.[6]
Mr Karavelas relied on the medical evidence from Dr Agagiotis and Dr Napper that the effects of bipolar disorder “caused him to miss the deadline” for the filing of the application because the condition “adversely affected his ability to focus, concentrate and organise his personal affairs”.
In circumstances where Dr Agagiotis and Dr Napper were not required for cross-examination, I consider I am compelled to accept their medical evidence that Mr Karavelas’ condition caused him to miss the filing deadline.
I accept there is merit to the arguments from Trivett Autmotive that Mr Karavelas was able to send a significant number of emails in July 2023 despite his condition, and that it is not clear why Mr Karavelas was able to file an application on 12 August 2023 given he was seemingly still suffering from the condition. However, I do not consider these points are sufficient to completely undermine the uncontested medical evidence of Dr Agagiotis and Dr Napper.
I consider Mr Karavelas has an adequate explanation for the entirety of the delay and that this weighs marginally in favour of an extension being granted.
Did Mr Karavelas first become aware of the dismissal after it had taken effect?
Mr Karavelas was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. I consider this to be a neutral factor.
What action was taken by Mr Karavelas to dispute the dismissal?
Mr Karavelas argued he sent a letter to the Managing Director of Trivett Automotive on 29 June 2023 raising various concerns with his redundancy and received no response. Mr Karavelas considered there was no point further agitating his dismissal with Trivett Automotive if the Managing Director was not even willing to respond to his letter.
I accept Mr Karavelas’ argument on this point and consider it weighs in favour of an extension being granted. Mr Karavelas was a long-term employee of Trivett Automotive with what appears to be a good performance history. Even if Trivett Automotive did not have any legal obligation under an award or enterprise agreement to consult with Mr Karavelas about its restructuring decision, I consider it was clearly appropriate for this to occur. I can understand Mr Karavelas’ frustration about receiving no response to his letter and being provided with no opportunity to express a view about a restructuring process that would lead to his position becoming redundant.
What is the prejudice to the employer (including prejudice caused by the delay)?
Trivett Automotive accepted any prejudice was very minor and that this is a neutral factor. I agree.
What are the merits of the application?
Mr Karavelas accepted during the determinative conference that Trivett Autmotive implemented a restructure which resulted in the Head of Aftersales positions for New South Wales and Victoria being merged into one. Mr Karavelas indicated he felt aggrieved that the Victorian Head of Aftersales was appointed to the merged position instead of him. Mr Karavelas also queried the extent of the restructuring given two new lower paid non-management positions were created in addition to the merging of the Head of Aftersales roles.
In addition, Mr Karavelas accepted a submission from Mr Almond during the determinative conference to the effect that no remedy could be awarded by the Commission in relation to the application because Mr Karavelas is not seeking reinstatement and he has already been paid the equivalent of 26 weeks’ remuneration in redundancy and notice payments and via being permitted to use two fully maintained vehicles for more than a month after his dismissal.
As identified in the decision of Simpson C in Klavs, Felicity v Prestige Painters [2013] FWC 2485 at [61], the Explanatory Memorandum to the Fair Work Bill 2008 expressly clarified that the selection of employees is not a matter to be considered in relation to assessing whether the “genuine redundancy” definition in s.389 of the FW Act is satisfied.
In circumstances where Mr Karavelas accepts that Trivett Automotive implemented a restructuring process which led to the merging of two existing Head of Aftersales positions into one, I consider it will be very difficult for him to establish that his dismissal was not a case of “genuine redundancy”. I do not think the establishment of two significantly lower-paid positions is likely to be of great assistance to Mr Karavelas, particularly given he declined an offer to assume one of these positions, which was understandable given the pay and seniority was substantially lower than his previous role. The limited evidence filed at this stage indicates redeployment opportunities were explored.
In response to Mr Almond’s argument that there is no remedy that can be achieved by the application, Mr Karavelas indicated “it is not about money”, and suggested he was pursuing the case as a matter of principle. This is consistent with the remedy Mr Karavelas initially identified in his unfair dismissal application. While I certainly understand why Mr Karavelas feels aggrieved about his treatment by Trivett Automotive, his concession that there is no remedy he is likely to achieve from the application inevitably brings into question the merits of the application.
Although it would be inappropriate to make any firm assessments at this early stage of the proceedings, I consider based on the limited material filed by the parties that the merits of the application weigh significantly against the granting of an extension of time for the filing of the application.
Fairness as between Mr Karavelas and other persons in a similar position
I consider this to be a neutral factor as accepted by both parties.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.[8] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[9]
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
Although I accept Mr Karavelas has an adequate reason for the delay in filing his application, I consider the merits of the application weigh significantly against the granting of an extension. Mr Karavelas has conceded he has limited prospects of achieving any remedy from the application and that he is pursuing it as a matter of principle. I also consider Mr Karavelas is likely to have significant difficulty establishing the dismissal was not a case of “genuine redundancy” in accordance with the definition in s.389 of the FW Act.
In Ho v Professional Services Review Committee No 295,[10] Rares J provided the following practical example of what constitutes exceptional circumstances with reference to the same test in predecessor legislation:
“Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.”
While I certainly have considerable sympathy for Mr Karavelas, particularly given his medical condition, I do not consider the circumstances, viewed as a whole, meet the ‘high hurdle’ of exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
Mr G Karavelas on behalf of himself.
Mr P Almond on behalf of the Respondent.
Hearing details:
2023.
Sydney (in person);
3 October 2023.
[1] Section 396 of the FW Act.
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[10] [2007] FCA 388.
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