Giacinto (Jason) Mazzacca v Sun Jingzhi Pty Ltd
[2020] FWC 2917
•3 JUNE 2020
| [2020] FWC 2917 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Giacinto (Jason) Mazzacca
v
Sun Jingzhi Pty Ltd
(C2020/557)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 3 JUNE 2020 |
Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.
[1] This decision concerns an application by Mr Giacinto (Jason) Mazzacca under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
[2] It is uncontested that Mr Mazzacca’s employment ended on 24 December 2019. His application was lodged on 31 January 2020. Accordingly, the period of 21 days for lodgement ended at midnight on 14 January 2020 and the application was therefore lodged 17 days out of time. Mr Mazzacca seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.
[3] On 25 May 2020 I conducted the proceeding by way of determinative conference by telephone. At the determinative conference Mr Mazzacca appeared on his own behalf. Mr Yu (Ben) Wen, General Manager, appeared on behalf of the Respondent.
Background
[4] Mr Mazzacca commenced employment with the Respondent on 25 November 2019. 1
At the time of his dismissal, Mr Mazzacca was employed in the position of area manager for the Respondent’s Avo Pizza store in South Melbourne, and Poke Doke Pizza and Pasta store in Armadale. 2
[5] On 24 December 2019, Mr Wen sent a text to Mr Mazzacca requesting that they meet at the Respondent’s Dumplings Delish store in Murrumbeena. 3 At this meeting, Mr Mazzacca’s employment with the Respondent was terminated effective immediately4 (Termination Meeting).
Consideration
[6] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 5
[7] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 6 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.7
[8] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.
Reason for the delay
[9] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 8 or a reasonable explanation.9 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd10 the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.11 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.12
[10] In his materials and in his evidence at the determinative conference Mr Mazzacca says that the reason for the delay in lodgement was due to a work injury he suffered on 13 December 2019, where his finger became caught in a dough roller with a faulty switch which crushed his finger and nerves (Injury). Mr Mazzacca underwent day surgery for the Injury on 15 December 2019. 13
[11] In his materials Mr Mazzacca says that as a result of the Injury, he had nightmares, was not in a “good mental state” and is currently seeing a psychiatrist. 14 However, at the determinative conference Mr Mazzacca said that he was in fact seeing a psychologist rather than a psychiatrist. He said that he anticipates being referred to a psychiatrist but that this has not yet occurred and that he is under a mental health treatment plan. He said he was in a lot of pain, exhausted and not thinking clearly. He submits that he has struggled since the Injury and has been unfit to “do anything” and was unable to complete the application due to his trauma.15 His evidence was that he is still having hand therapy, x-rays for his shoulder and is still “uncomfortable”.
[12] Mr Mazzacca further submits that due to the Injury, he was not aware of the 21 day time frame for lodgement. 16
[13] Mr Mazzacca filed the following medical documentation:
• Patient discharge information sheet from Box Hill Hospital dated 15 December 2019;
• Prescription dated 3 January 2020 for Endep;
• Post consultation outcome form from Eastern Health’s Public Plastic Surgical Clinic dated 13 January 2020;
• Prescription dated 17 January 2020 for Lyrica;
• Patient report from Melbourne Radiology Clinic dated 28 January 2020;
• Prescription dated 28 January 2020 for Mobic;
• Imaging request from Imaging Associates dated 3 February 2020; and
• A letter from Dr Upuli Mayadunne dated 10 February 2020.
[14] On 15 January 2020 Mr Mazzacca lodged an application for unfair dismissal in the Commission. On 16 January 2020 the Commission contacted Mr Mazzacca both by telephone and in writing advising him that his application indicated that he had not been employed for the minimum employment period required under the Act for unfair dismissal. On 29 January 2020 Mr Mazzacca wrote to the Commission seeking to speak with the Commission as he was unsure of what to do. On 31 January 2020 the Commission telephoned Mr Mazzacca. During this telephone call, Mr Mazzacca discontinued his application for unfair dismissal. His general protections application was lodged later that day.
[15] I accept that Mr Mazzacca suffered a workplace injury to his finger on 13 December 2019 and day surgery was subsequently required. I also accept that the Injury has required follow up treatment, some medication and rehabilitation. However, the medical evidence provided by Mr Mazzacca does not demonstrate that he was so physically incapacitated by the Injury following his dismissal as to be unable to lodge the application in time. I note that the Injury occurred at least two weeks before his dismissal and that he was hospitalised for one day only, some 10 days before his dismissal. Further, whilst I accept that the Injury did likely cause Mr Mazzacca some trauma, there is no medical evidence before the Commission which establishes that Mr Mazzacca’s mental health was such that it incapacitated him or precluded him from lodging his application within time. Although Mr Mazzacca submits that he is consulting a psychologist, he did not file the mental health treatment plan referred to in his oral evidence, he did not file any evidence from his treating psychologist and there is no evidence before the Commission that Mr Mazzacca suffers from any specific mental health diagnosis. Additionally, Mr Mazzacca lodged an application for an unfair dismissal remedy on 15 January 2020. It is difficult to see how Mr Mazzacca was physically and mentally capable of lodging an unfair dismissal application at that time, but not able to lodge a general protections application at that time or at any subsequent time prior to 31 January 2020. Accordingly, I do not consider that the Injury or any trauma that Mr Mazzacca experienced as a result of the Injury provides an explanation for the delay. Finally, I note that the medical evidence provided from Dr Mayadunne and Imaging Associates post dates the lodgement of the application and therefore also cannot provide an explanation for the period of the delay.
[16] As to Mr Mazzacca’s lack of awareness of the 21 day time frame for lodgement, it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement. 17
[17] In light of the above, I do not consider that Mr Mazzacca has provided a reasonable or acceptable explanation for the delay. This weighs against the grant of an extension of time.
Action taken by the person to dispute the dismissal
[18] In his materials Mr Mazzacca submits that after leaving the Termination Meeting on 24 December 2019, he was “shocked and very upset” that his employment was terminated immediately and as such, did not know how to respond. He submits that 30 to 40 minutes after the Termination Meeting, he sent a text to Mr Wen telling him that he was disappointed about being terminated without pay. 18 Mr Mazzacca did not file this text with the Commission. On the basis of the evidence currently before the Commission, and noting the absence of the relevant text being in evidence, it appears that Mr Mazzacca disputed the absence of notice of termination, or payment in lieu of notice, but not the dismissal itself. Further, at the determinative conference Mr Mazzacca said that he disputed his dismissal by contacting the Commission and WorkSafe. On the material before the Commission, I find that Mr Mazzacca did not contest his dismissal at the time it occurred or in the 21 days following it. This weighs against the granting of an extension of time.
Prejudice to the employer
[19] The Respondent submits that it has suffered prejudice due to the time involved in researching, gathering information and unnecessary mental stress associated with the application. The Respondent further submits that the business is currently closed. 19
[20] Mr Mazzacca submits that the lateness of the application has not caused any prejudice to the Respondent as the Respondent “does not really care much about his employees”. 20
[21] I cannot identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
[22] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
[23] In his materials, Mr Mazzacca alleges that adverse action was taken against him in breach of section 344 of the Act. 21 Section 344 provides that an employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a) make, or not make, an agreement or arrangement under the National Employment Standards; or
(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c) agree to, or terminate, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
[24] At the determinative conference Mr Mazzacca was unable to address me as to how he said section 344 was engaged or which subsection of section 344 he relied upon. He said that being dismissed on the spot was unfair and all he wanted was “some notice”.
[25] Mr Mazzacca submits that due to the Injury, he had asked Mr Wen to provide the necessary paperwork for a WorkCover claim “as it was constantly delayed”. He says that he told Mr Wen that he had a medical certificate for three weeks following his surgery for the Injury and wanted to be paid. Mr Mazzacca submits that following these requests, Mr Wen responded via text message saying that they could not “further work together”. 22
[26] Mr Mazzacca further submits that Mr Wen pressured him on the phone, and that the Respondent’s administration employee was texting him telling him not to tell WorkSafe about the machine which caused the Injury, 23 or the Injury itself.24 No copies of text messages were filed by Mr Mazzacca.
[27] The Respondent disputes that the Injury was the reason for Mr Mazzacca’s termination. It says that Mr Mazzacca refused WorkCover in the first instance as he had a court case on foot which could not show that he was receiving any income. 25 The Respondent submits that Mr Mazzacca’s WorkCover claim has now been handled by its insurer and is “nearly finished”.26
[28] In response to Mr Mazzacca’s submission that the Respondent asked him not to tell WorkSafe about the Injury or the machine which caused the Injury, the Respondent submits that it was unsure as to what occurred when the Injury was sustained, as the machine has yet to be sent to the mechanic. 27
[29] The Respondent submits that at the Termination Meeting, he advised Mr Mazzacca that his employment was terminated due to the business not doing well, however it submits that this was used as an “excuse to sack him to save his face” and that the real reasons for dismissal were as follows:
• Poor performance for which “many warnings [had] been given”;
• Causing two staff members to resign;
• Complaints about “almost all decisions that the company made”, including requests for compensation; 28 and
• Becoming upset when finding out that he was being paid “on the book”. 29
[30] The Respondent submits that Mr Mazzacca argued with Mr Wen about the business saying that Mr Wen did not know anything about business and that Mr Mazzacca was the one making decisions. The Respondent also submits that Mr Mazzacca was always late to work and left the pizza oven on overnight one night. 30 The Respondent submits that Mr Wen sent several text messages to Mr Mazzacca regarding “bad preparation” and “bad management”.31 The Respondent did not file copies of any text messages.
[31] On the material currently before the Commission, Mr Mazzacca does not appear to assert any matters which could, even arguably, give rise to a breach of section 344. Accordingly, I consider his claim for breach of section 344 to be, at best, weak. As to the fairness of his dismissal and the absence of notice, these appear to be matters better suited to an unfair dismissal claim. However, I note that Mr Mazzacca also makes a number of assertions regarding the Injury and his WorkCover claim and its nexus to his dismissal. Whilst these assertions are not well articulated with reference to Part 3-1 of the Act, Mr Mazzacca is unrepresented and it may be that with legal representation he would be better able to articulate these claims. In these circumstances, I am prepared to consider the merits of Mr Mazzacca’s application to be a neutral consideration.
Fairness as between the person and another person in a like position
[32] Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.32 Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.33 The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Mazzacca and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
[33] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
[34] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist.
[35] Accordingly, I decline to grant an extension of time under section 366(2). Mr Mazzacca’s application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
G Mazzacca on his own behalf
Y Wen for the Respondent
Hearing details:
2020.
Melbourne (by telephone):
May 25.
Final written submissions:
Applicant, 8 April 2020
Respondent, 20 April 2020
Printed by authority of the Commonwealth Government Printer
<PR719903>
1 Exhibit A1, q.1.1
2 Exhibit A2, q.1h
3 Ibid, q.1b
4 Ibid, q.1b-1c; Exhibit R2, q.1a-1c
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
6 [2011] FWAFB 975
7 At [13]
8 Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
9 Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
10 [2018] FWCFB 901
11 Ibid at [39]
12 See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
13 Exhibit A2, q.1d; Exhibit A3
14 Exhibit A2, q.1d
15 Exhibit A1, q.1.4
16 Exhibit A2, q.1d
17 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975
18 Exhibit A2, q.1e
19 Exhibit R2, q.1g
20 Exhibit A2, q.1f
21 Exhibit A1, q.3.2
22 Ibid, q.3.1
23 Ibid, q.3.3
24 Exhibit A2, q.1e
25 Exhibit R1, q.6.1
26 Ibid, q.4.1
27 Ibid, q.5.1
28 Ibid, q.6.1
29 Exhibit R2, q.1h
30 Ibid
31 Ibid
32 Wilson v Woolworths [2010] WA 2480 at [24-29]
33 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
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