Giovanni Cantone v Metcash Trading Ltd
[2024] FWC 969
•15 APRIL 2024
| [2024] FWC 969 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Giovanni Cantone
v
Metcash Trading Ltd
(U2024/3055)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 15 APRIL 2024 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
Introduction
This decision concerns an application made by Mr Giovanni Cantone (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant who was employed by Metcash Trading Ltd (the Respondent) alleges he was dismissed on 21 February 2024. The unfair dismissal application was lodged by the Applicant on 17 March 2024.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the dismissal took effect on 21 February 2024, the period of 21 days ended at midnight on 13 March 2024. The application was therefore filed 4 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act.
The application for an extension of time to file the unfair dismissal application was set down for determinative conference on 12 April 2024 in advance of which the Applicant filed material in accordance with directions issued while the Respondent elected not to file any material. At determinative conference on 12 April 2024, the Applicant appeared and gave evidence while the Respondent was represented by Gavin Done, Head of People Advisory, Data & Analytics.
Background and evidence
The Applicant commenced employment with the Respondent on 6 February 2023 as a truck driver at the Respondent’s Cowes Mitre 10 store. He worked 38 hours per week and at the time of his dismissal was in receipt of a base hourly rate of pay of $26.00.
The Applicant states that on his return from annual leave on 29 January 2024 he was confronted with three work vehicles that had been damaged and not reported to management. He states that his reporting of the damage was greeted with indifference, and he was told to address the issues himself. He also claims that the Trade Manager subjected him to undue pressure during that week. Events came to a head on 1 February 2024 according to the Applicant when he was reprimanded by the Trade Manager for leaving two coffee cups in the Applicant’s truck. This he says led to him expressing his frustration to the Trade Manager about safety and workload. The Applicant conceded in cross-examination that he ‘blew his top’ with the Trade Manager, swore at him and abused him although he could not recall the exact words he used. The Applicant accepts that his conduct was inappropriate but was explained by events of the preceding days.
As a result of the incident on 1 February 2024, the Applicant was suspended from work and subsequently attended a disciplinary meeting on 16 February 2024 arising from which a letter of allegations was provided to him dated that same day. The Applicant was invited to respond to the letter of allegations which he did in writing on 19 February 2024. A further meeting was held on 21 February 2024 at which the Respondent advised that it had completed its investigation, had considered the Applicant’s response, did not believe the Applicant had provided information justifying continuation of his employment and confirmed that his employment was to be terminated on the grounds of serious misconduct effective 21 February 2024. A letter of termination dated 21 February 2024[1] setting out the reasons for dismissal was provided to the Applicant on 21 February 2024. The reasons for the dismissal were stated to be that the Applicant had been involved in a serious safety breach and inappropriate workplace behaviour.
The Applicant states that he was left shocked and distressed in the wake of his dismissal and was initially unable to process the seriousness of what had occurred. He says he was also initially focussed on ‘moving forward’ rather than pursuing a remedy for his dismissal. He also referred to his wife having been unwell at the time. After some time had elapsed following his dismissal, conversations he held with friends and the Transport Workers Union (the TWU) led him to decide to make an unfair dismissal application. He agreed that he had made the decision to make an application before he filed his application on 17 March 2024 but explained that ‘time had got away’ from him. The Applicant also confirmed in his evidence that apart from filing his unfair dismissal application he had taken no other steps to challenge his dismissal.
Should an extension of time be granted?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ 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.[2] 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.[3]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 March 2024. The delay is the period commencing immediately after that time until 17 March 2024, although circumstances arising prior to that day 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] An applicant does not need to provide a reason for the entire period of the delay although the absence of any 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 of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[6].
The Applicant contends that the four day delay in filing his application can be attributed to a number of factors including his initial distress at being dismissed, his wife’s illness and his wish to move forward rather than pursue an application for an unfair dismissal remedy. It was only once he had time to process the seriousness of the events and had spoken with friends and the TWU that he resolved to make an application. In doing so he states that time simply got away from him. He submits that the combination of these matters explained the delay in the filing of his application and should weigh in favour of a finding that exceptional circumstances exist that warrants an extension of time being granted.
The following points may be made. Firstly, it is not unusual or out of the ordinary for a dismissed employee to be upset or distressed at the circumstances of their dismissal. Secondly, while the Applicant refers to his wife’s illness it is not clear how that illness impacted on the Applicant’s caring responsibilities in the period following his dismissal and if so whether those caring responsibilities were so onerous as to have prevented him filing his application at an earlier time than he did. Thirdly, it is unclear at what point the Applicant resolved to file an application following discussions with friends and the TWU, although he agreed it was at a point prior to 17 March 2024. Fourthly, his explanation that time had got away from him, while perhaps understandable, does not provide a compelling explanation for the delay in filing the application.
As to the matters raised by the Applicant in explaining the delay, there was insufficient evidence to persuade me that those matters either individually or collectively prevented the Applicant from filing his unfair dismissal application at an earlier date then he did. The absence of an acceptable explanation for the filing delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find that the Applicant became aware of his dismissal on the same day that it took effect on 21 February 2024 and therefore he had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
It is not apparent that the Applicant took any action to contest his dismissal after it took effect on 21 February 2024, other than lodging his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The application was filed four days outside of the 21-day period. It is not in dispute, and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[7] it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[8] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.
The Applicant concedes that in the workplace confrontation on 1 February 2024, he (the Applicant) ‘blew his top’, swore at and abused the Trade Manager, conduct he now accepts was inappropriate. He states however that his conduct was explained by a series of prior events including safety incidents, management indifference to his (the Applicant’s) concerns over the state of the company vehicles and his being reprimanded for a minor infringement of leaving two coffee cups in his truck. He states these incidents led to his frustration and behaviour on 1 February 2024.
I accept there were events that occurred prior to the 1 February 2024 confrontation that caused the Applicant to be frustrated. It is not possible however on the limited material before me to assess whether those prior events justified a level of frustration on the part of the Applicant that explained the confrontation on 1 February 2024. Even were it to explain some frustration on his part, it is difficult to see how that could justify the conceded swearing and abuse directed by the Applicant toward the Trade Manager.
Based on the limited material available at this stage of proceedings I do not consider the merits of the present case tell in favour of an extension of time. I note however that the Respondent chose not to file any material in response to the extension of time and in particular in respect of the merits of the case. In these circumstances I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
G Cantone, Applicant.
G Done for the Respondent.
Hearing details:
2024.
Melbourne (via Microsoft Teams):
April 12.
[1] Exhibit A2, Letter of termination, dated 21 February 2024
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[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 at [39].
[6] Ibid at [40].
[7] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[8] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
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