Giuseppa Lopizzo v PrixCar Services Pty Ltd T/A PrixCar

[2012] FWA 8763

[2012] FWA 8763

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Giuseppa Lopizzo
v
PrixCar Services Pty Ltd T/A PrixCar
(C2012/3564)

COMMISSIONER GREGORY MELBOURNE, 18 OCTOBER 2012

Jurisdictional objection - application lodged outside the 60 day time limit.

Introduction

[1] These proceedings arise from an application filed by Ms Giuseppa (also known as Josephine) Lopizzo (the Applicant) under s.365 of the Fair Work Act 2009 (the Act). The Respondent, PrixCar Services Pty Ltd T/A PrixCar (the Respondent), has in turn raised a jurisdictional objection to the application, namely it was lodged outside the 60 day time limit prescribed in s.366(1) of the Act.

[2] The date of the Applicant’s dismissal is an important issue in this matter. At the commencement of the proceedings the parties confirmed it was agreed the actual date of termination was Thursday, 23 February 2012. However, the Applicant’s evidence is she has acted throughout on the mistaken belief she was terminated on Monday, 27 February 2012. The s.365 application was lodged on 26 April 2012, 63 days after the actual date of dismissal and three days after the expiry of the 60 day time limit. However, s.366(1)(b) provides Fair Work Australia with discretion to extend the period for lodging an application made under s.365. This decision accordingly deals with the issue of whether the Applicant should be allowed an extension of time.

[3] Mr A. Gailbraith of Counsel appeared on behalf of the Applicant. The Respondent was represented by Mr J. Forbes of Counsel.

The Facts

[4] The Applicant commenced employment with the Respondent on 8 June 2011 as, in her words, a “car washer”. She described her employment as “casual full time” and worked varying rosters at the Respondent’s premises in Altona. Her evidence indicated three other employees were employed in washing cars, including Mr Nabil Khella, who was also the Union delegate, Mr The Tho Bui, commonly referred to as “Charlie,” and the Supervisor, Kevin Sultana, commonly referred to as “Big Kevin”.

[5] The Applicant’s evidence indicated in August/September 2011 she made several complaints about “Charlie” urinating in the car wash, as well as undressing and washing his clothes. She also made complaints about his offensive language. Her complaints were made to Mr Khella, in his capacity as the Union delegate, and to her supervisor, however, she was told nothing could be done because Charlie was a longstanding employer and to “just get on with her job”. The Applicant finally made a complaint to Sheryl Lea Lucas, the HR Manager. She told her the behaviour had been going on for several months.

[6] The Respondent initiated an investigation into the complaints and a subsequent “HR Investigation Report” was tendered in the proceedings as Exhibit G1. It indicated the Complainant was Josephine Lapizzo and Respondents Charlie (The Tho Bui) and Nabil Khella. Under the heading “Allegation Details” it stated:

“Josephine contacted Sheryl Lea advising that following Charlie being given a final warning on urinating in the wash bay other incidents have occurred including inappropriate comments.”

[7] It also stated under the heading, “Investigation Scope”:

“The investigation will focus on the advice received from Shery (sic) Lea following her meeting with Josephine. The objective of the investigation is to determine the credibility of the compliant (sic).”

[8] Under the heading “Final Investigative Findings” it continued to indicate:

“After reviewing the evidence provided in the interviews it appears that the allegation is credible, that Charlie did:

• Use inappropriate language



• Wash his clothes in the clothes bay



• That the comments were not directed at Josephine



• That previous issues in relation to Charlie’s behaviour were not reported to management



• It cannot be confirmed that the comments made by Nabil to Josephine as it’s “one persons word against the other.”

[9] In terms of Final Recommendations the document stated:

“I am recommending that further disciplinary action be taken against Charlie in the event of another incidence of inappropriate behaviour or comment. The incident, though a ‘one time’ occurrence, does not seem to represent a pattern of misconduct. Due to this mitigating factor I recommend a formal reprimand . . . and workplace arrangements put in place so that Charlie & Josephine do not work in the same vicinity.”

[10] The Report also noted:

“Josephine advised she was happy with the outcome of the investigation and would move on from here”.

[11] The Applicant’s evidence indicated Charlie was moved to another part of the workplace, although she still had occasional contact with him. The Applicant also said after making the complaint she was ignored by other employees and Mr Khella was angry with her.

[12] On 27 February the Applicant’s evidence indicated she went to see the Manager, Mr Joe Bulakowski, about a full time work opportunity with the Respondent. She said Mr Bulakowski told her she had been “a trouble maker from day one,” and he had been made aware she had just been involved in an incident in which she called another employee a “f...... black bastard.” He told her there were witnesses to the incident. Her employment was then terminated.

[13] Since that time the Applicant’s evidence is she has acted on the mistaken belief this meeting with Mr Bulakowski occurred on Monday, 27 February, although she is now aware the actual date was Thursday, 23 February. She indicated her confusion arose in part because she was not provided with any written termination letter by the Respondent. She later checked her bank records which indicated a final payment from the Respondent was transferred into her account on 29 February 2012. Payments from her former employer were usually transferred two days after they accrued. She had accordingly mistakenly the date of her meeting with Mr Bulakowski, and the date of her termination, assuming it occurred two days prior to that transfer of funds.

[14] After her dismissal the Applicant spoke to the Union delegate, Mr Khella, and contacted the Union office by telephone. On both occasions she said she was told nothing could be done because she was a casual.

[15] A Victorian Equal Opportunity and Human Rights Commission Complaint [EOHRC] form was also tendered on behalf of the Applicant. It was only partially complete and had been filled in with the assistance of the Applicant’s daughter. The Applicant did not actually proceed with the complaint, but the partially completed form indicated the Applicant had been “. . . fired on 27/02/12.”

[16] The Applicant said the dismissal had affected her mentally and financially and she had lost her house “. . . because I cannot afford” 1. On 11 April she consulted a lawyer, Mr Michael Jorgenson from the firm of Williams Winter. She also told him she had been dismissed on 27 February. In cross-examination the Applicant said she had not previously filed an unfair dismissal application following her termination. She had done nothing in response to her dismissal in the initial two or three week period after it occurred, apart from making contact with the Union, because she was trying to look after her home and family and find other work. She was also waiting on a response from her enquiries with the Union.

[17] Mr Michal Jorgenson also gave evidence on behalf of the Applicant. He said the Applicant attended his office on 11 April to seek advice about her dismissal. She told him she had been dismissed on 27 February 2012. He subsequently completed the Form F8 and filed it with Fair Work Australia by facsimile on 26 April. He said if he had been told the Applicant had been terminated on 23 February the application would have been filed sooner.

[18] Mr Josef Bulakowski gave evidence on behalf of the Respondent. He is employed by the Respondent as an Operations Manager and has been with the Company since 1995. A Sworn Affidavit 2 was also tendered. His evidence indicated on 23 February 2012 he overheard a conversation between some employees about a recent incident when the Applicant called another employee, Mr Dawit Markonnen, “a f..... black bastard”. He called Mr Makonnen into his office who confirmed what had happened, but said he did not want to pursue the matter as he did not want to get the Applicant in trouble. Mr Bulakowski subsequently discussed the matter with the State Manager, Mr Brendan Lane. Mr Lane told him he was concerned about the alleged incident and believed it should be pursued further. Mr Lane was apparently particularly concerned because employees had recently participated in workplace bullying and harassment training and a firm stand on such matters needed to be taken. Mr Bulakowski then spoke to another employee who confirmed he had heard the comments made by the Applicant.

[19] Mr Bulakowski then met with the Applicant and indicated the incident was a serious breach of the Company’s bullying and harassment policy. The Applicant denied the allegations and asked to talk with the shop steward. He said when she returned she asked to be given a third and final warning, however, this suggestion was rejected because she was a casual employee. He told her the Company no longer required her services. He also indicated she was not given a letter of termination because she was a casual employee. He denied having said the Applicant had been “a trouble maker from day one” and stated he had not previously had any problems with her. He could not recall any discussions with the Applicant about full time employment and, as far as he was aware, she had not been in contact with the Company since her dismissal.

[20] In cross-examination Mr Bulakowski indicated he had not previously seen the HR Investigation Report into the incidents involving “Charlie”. He said the circumstances involving the Applicant were not a case of “one person’s word against the other.” He had spoken to other employees who had seen and confirmed what occurred. The State Manager had asked for the Applicant to be dismissed in all the circumstances because the Respondent had “. . . zero tolerance of any incidents like that occurring in the workplace.” 3

Legislation and law to be applied

[21] Section 366(1)(a) of the Act requires an application under s.365 to be made within 60 days after the dismissal took effect, or within such further period as the Tribunal allows. Section 366(2) sets out the considerations to be taken into account in this exercise of the Tribunal’s discretion. s.366(2) states as follows:

“366(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(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.”

[22] The principles concerning what constitute “exceptional circumstances” are well established. Both the Applicant and the Respondent referred in their submissions to the decision of a Full Bench of Fair Work Australia in Nulty v. Blue Star Group Pty Ltd [Nulty] 4 The Full Bench was also dealing with an extension of time application under s.365 in that matter. It indicated at paragraphs [13] - [15] of its decision:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought to be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 5

[23] The Respondent also referred to the decision of Commissioner Cambridge in MR Fred Antoun v ANZ Banking Group Limited 6made in the context of an application under s.394. The Act requires such applications to be lodged within 14 days, subject again to the Tribunal exercising its discretion in exceptional circumstances to extend that time limit. The application was only one day late in that matter, however, Commissioner Cambridge stated at paragraph [26]:

“Although the length of the delay was of the shortest duration that could conceivably by the subject of the exercise of any discretion to extend time, a proper consideration of the relevant factors must still be undertaken.” 7

[24] As indicated, s.366(2) requires consideration by Fair Work Australia of each of the matters set out in (a) to (e). The decision in Nulty also confirms “exceptional circumstances” might be found to exist because of a single factor or because of a combination of factors. I accordingly now turn to deal with the circumstances involved in this matter, and the respective submissions of the parties, by reference to the considerations in s.366(2) I must have regard to.

(a) The reason for the delay

[25] The delay in lodging the Applicant’s s.365 application was finally caused by her mistaken belief she had been terminated on 27 February, instead of 23 February when the termination actually occurred. As indicated, there was no contest in the proceedings about the actual date being 23 February 2012. Apart from the fact the Applicant was not provided with a formal letter of termination by the Respondent she does not seek to apportion blame for the mistake in getting the date wrong. She was in no doubt she had been terminated; there is no submission made about representative error; she simply formed and acted on the basis of an honestly mistaken view about when the dismissal occurred. Her mistaken belief became increasing significant because she did not seek legal advice about her termination until 11 April 2012, 48 days after the date of her dismissal. Her legal advisor subsequently acted on the basis of the advice received from his client, including the mistaken date of dismissal, and subsequently lodged a s.365 application on 26 April, believing it to be within the 60 day time limit. I reiterate there is no claim made about representative error. The Applicant’s Solicitor simply acted on the basis of advice that was mistaken about one important fact. As a result, and because the Applicant had not sought legal advice at an earlier point, the application was lodged three days out of time.

[26] Whilst it is impossible to be definitive, if the Applicant had sought legal advice earlier it is likely her mistaken view about the date of termination might well have not been as significant because the Application would have been lodged sooner.

[27] Various factors are pointed to for the delay in seeking legal advice. The Applicant was initially waiting on advice from her Union. She was also naturally concerned about her family and her financial situation, and with obtaining work elsewhere. These are entirely understandable reactions from someone who has been unexpectedly dismissed from their employment. She indicated she had not been able to maintain payments on her house and was very distressed by what had happened, although no further details were provided about these circumstances.

[28] The Applicant also considered filing an equal opportunity complaint, although for reasons that were not explained did not proceed with this EOHRC application. A partially completed complaint form tendered in the proceedings stated her termination date was 27 February confirming the evidence about her mistaken view.

[29] The evidence indicates the Applicant was clearly aggrieved by her dismissal at the time it occurred. She sought advice about redress, but ultimately did not seek legal advice until 48 days after the dismissal occurred. That delay in seeking advice, and her mistaken belief about the day on which the termination took place, combined to cause her application to be lodged three days out of time.

(b) Any action taken to dispute the dismissal

[30] The Applicant did take action to dispute the dismissal. When told she was going to be terminated she asked to speak with her Union delegate and then asked to be given a final warning, rather than being dismissed. She also indicated she sought advice some days later from her Union. She also contemplated an equal opportunity application, before finally going to a solicitor to seek legal advice on 11 April.

(c) Prejudice to the employer (including prejudice caused by the delay)

[31] Both parties acknowledged there is little or no prejudice to the employer in the application being granted, other than the usual consideration of having to respond to the application.

(d) The merits of the application

[32] The evidence in the proceeding indicated the Applicant was confronted by some extraordinary behaviour from another employee during the course of her employment with the Respondent. She quite properly made a complaint about that behaviour which was belatedly acted on and investigated. That complaint, in the Applicant’s submission, is the exercise of a workplace right that forms the first element in making out her action. The Applicant contends it was the cause of the adverse action subsequently taken against her, being the decision to terminate her employment because she was perceived to be “a trouble maker”. It also emphasises the onus then falls on the Respondent to establish the termination of the Applicant’s employment was not for a prohibited reason.

[33] The Respondent submits the Applicant’s dismissal was the response to unacceptable comments made by her to another employee. Evidence was provided to suggest those comments were also heard by other employees at the time they were made. The Applicant denies ever making those comments. The Respondent in turn denies ever describing the Applicant as “a trouble maker,” and submits any consideration about merit is clearly dealing with what are contested facts.

[34] The Respondent also referred to the decision in Nulty and the passage at paragraph [36] of that decision where the Full Bench stated:

“It ought to be regarded as well established that on an extension of time hearing it would not be appropriate for the Tribunal to resolve contested issues.”

[35] The issue was also considered by this Tribunal’s predecessor when dealing with similar legislative provisions to those now contained in the Fair Work Act. In Kyvelos v. Champion Socks Pty Limited 8a Full Bench of the Australian Industrial Relations Commission said:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 9

[36] The Full Bench continued:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 10

[37] In the absence of detailed evidence going to the contested facts I am also not in a position to make findings of fact about those matters. I am satisfied the Applicant has indicated the basis of a case that prima facie has merit. At the same time the Respondent has pointed to evidence that suggests the Applicant was dismissed for unrelated reasons. The respective merits, based on the evidence and submissions in this matter, are accordingly a neutral consideration in terms of whether to exercise the discretion available in s.394(3).

(e) Fairness as between the person and another in a similar position

[38] The Applicant submits she will be significantly disadvantaged when compared to another employee honestly mistaken about the date on which they were terminated, but not barred from proceeding with a s.365 application. I accept that is evident and normally the case involving an application of this kind. The Respondent did not make submissions going to this consideration.

Conclusion

[39] I have already pointed to evidence indicating the Applicant had to endure some disturbing behaviour from another employee whilst employed by the Respondent. Some evidence also suggests the Respondent should have taken quicker and more decisive action in response to that situation. However, these proceedings are concerned with whether an extension of time should be granted to enable the Applicant to pursue the s.365 application. The failure to lodge within the 60 day limit was caused by the time taken by the Applicant to obtain informed advice, and by her honestly mistaken belief about the actual day on which her dismissal occurred. Those circumstances were both within the Applicant’s control. There is no submission about representative error in this matter. The Applicant was obviously upset and distressed about her dismissal and the impact it had on her personal circumstances. That is a normal and understandable reaction from someone in her position. Similar circumstances have also been considered in other decisions of this Tribunal dealing, in particular, with s.394 and extension of time applications.

[40] In Ms Susan Rose v BMD Constructions Pty Ltd 11Commissioner Roe was dealing with a situation in which he found the applicant was ignorant of the relevant time limits. The Applicant had also provided a medical certificate stating her dismissal had produced anxiety and depression. Commissioner Roe indicated in response at paragraph [9] of the decision:

“The evidence of the Applicant does not suggest that she was incapable of taking any action in respect to her dismissal during the two weeks following her dismissal. She was not hospitalised. She says that she was shocked and traumatised but there is no suggestion of incapacity. The Applicant provided a medical certificate dated 16th December 2010 stating that “Susan Rose tells me she was dismissed from her job in September 201 and has reported to me this has produced anxiety and depression.”. . . This is not strong evidence of incapacity to act during the two week period immediately following the dismissal.” 12

[41] He continued to state at paragraph [11]:

“Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.” 13

[42] In Patrick Dyer v Aarya Alliance Pty Ltd T/A Mona Lisa Cafe Bar Restaurant 14 Senior Deputy President Hamberger dealt with the circumstances of an applicant dismissed from his employment who then made various enquiries to attempt to ascertain what avenues of redress, if any, he might have. The Senior Deputy President indicated at paragraph [14]:

“Any suggestion that ignorance of the law relating to unfair dismissal can constitute exceptional circumstances should be treated with caution. For an ordinary layperson to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon, rather (perhaps sadly) it is a situation that is quite frequently encountered. The fact that Mr Dyer was unaware of his rights in respect of his termination of employment in these circumstances is not exceptional.” 15

[43] Both deal with extension of time applications made in regard to s.394 applications. However, the considerations the Tribunal must take into account in s.394(3) are similar to those contained in s.366(2) and the decisions are relevant in the context of this matter. Similar views have also been expressed in applications for an extension of time under s.366. In Raylene Reeve v. Ramsay Health Care Limited 16 Commissioner Williams stated at paragraph [18]:

“As was noted by the Full Bench of Fair Work Australia in Dr Bing Du v. University of Ballarat (C2011/3808) [2011] FWAFB 5225, at paragraph 31, when considering a similar provision in the Act regarding an extension of time for unfair dismissal applications, it is not unusual for employees who had been dismissed to not be aware of the law and to be unable to pay for advice for legal costs.”

[44] If the Applicant had sought legal advice earlier than 48 days after her dismissal it is probable her application would have been lodged within time, even with her mistaken belief about the date of termination. Nothing prevented her from seeking that advice at some earlier point, despite the distress caused by her termination. The mistaken view about her actual termination date was also of her doing. She had not been deliberately misled by the Respondent or anyone else in coming to that view. If she had been more careful in checking her recollection of the sequence of events involving her dismissal the mistake would not have occurred. However, she simply formed and continued to act on the basis of that mistaken view.

[45] The Act already provides a lengthy and extended time period of 60 days for lodging an application pursuant to s.365. The application in the present matter was only three days out of time nevertheless the Tribunal is still required to consider whether “exceptional circumstances” exist that warrant an extension of time being granted.

[46] Having considered all the evidence and submissions, and having had regard to the considerations in s.366(2), I am not satisfied the reasons for the delay relied upon by the Applicant constitute “exceptional circumstances” that provide justification to exercise the discretion to extend the time period. The Applicant was clearly upset by what had occurred. She was dealing with other significant personal issues as well and came to a mistaken view about when her dismissal occurred. Almost seven weeks elapsed from the date of her dismissal before she sought legal advice. Nothing that might be described as “exceptional circumstances” definitively stood in the way of her lodging an application pursuant to s.365 within the prescribed sixty day time period. The Application is dismissed.

COMMISSIONER

Appearances:

Mr A. Gailbraith of Counsel appeared on behalf of Giuseppa Lopizzo.

Mr J. Forbes of Counsel appeared on behalf of PrixCar Pty Ltd T/A PrixCar.

Hearing details:

Melbourne:

2012.

23 May 2012.

 1   Transcript PN189.

 2   Exhibit F1.

 3   Transcript PN379.

 4   [2011] FWAFB 975, PR506750.

 5   [2011] FWAFB 975, PR506750 at paragraphs [13] - [15].

 6   [2010] FWA 8610.

 7   [2010] FWA 8610 at paragraph [25], Exhibit F2.

 8   Print T2421

 9   Ibid [14]

 10   Ibid [14]

 11   [2011] FWA 673.

 12   [2011] FWA 673 at [9].

 13   [2011] FWA 673 at [11].

 14   [2010] FWA 8895.

 15   [2010] FWA 8895 at [14].

 16   [2011] FWA 5349

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