Giuseppe Dell'anno v Fresh Cheese Co (Australia) Pty Ltd

[2018] FWC 3607

[2018] FWC 3607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Giuseppe Dell’anno
v
Fresh Cheese Co (Australia) Pty Ltd
(U2018/3549)

COMMISSIONER PLATT ADELAIDE, 25 JUNE 2018

Application for an unfair dismissal remedy – extension of time – application granted.

Summary

[1] Mr Guiseppe Dell’anno has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Fresh Cheese Co (Australia) Pty Ltd (Fresh Cheese) which his form F2 Unfair Dismissal Application advised took effect on 15 March 2018.

[2] Mr Dell’anno filed his unfair dismissal application in the Commission on 5 April 2018. Mr Dell’anno’s application identified that it was made beyond the 21 days from the date of dismissal and did not provide an explanation.

[3] On 10 April 2018, Fresh Cheese lodged a form F3 Employer Response which raised a jurisdictional objection on the basis that Mr Dell’anno was not dismissed and that he resigned on 13 March 2018. The Employer Response did not address the fact that the application was lodged out of time.

[4] On 11 May 2018, the parties were advised by the Commission that in light of the information provided it appeared that the application may have been lodged out of time and the extension of time issue would be considered at a telephone conference. Fresh Cheese was directed to provide a statement concerning the extension of time and any documents to be relied upon by 21 May 2018. Mr Dell’anno was invited to file any material in reply by 28 May 2018.

[5] The matter was allocated to my Chambers on 1 June 2018.

[6] A Direction conference was conducted by telephone on 7 June 2018, and the parties were advised that the extension of time issue would be considered at a telephone Hearing on 21 June 2018. The parties were directed to provide any additional submissions and/or statements concerning the extension of time and any documents to be relied upon by 14 June 2018.

Submissions

[7] Mr Dell’anno’s written submissions 1 and statement2 are relevantly summarised as follows:

•  Mr Dell’anno commenced employment with Fresh Cheese in 2002 at the Brunswick factory. In June 2008, Fresh Cheese relocated to a factory in Broadmeadows, and the Applicant resumed his employment at the Broadmeadows factory on 25 September 2008.

•  Mr Dell’anno was employed as a storeman and packer.

•  On 13 March 2018, Mr Dell’anno attended a meeting with Mr Roger Dale (Human Resources Manager) and Mr Louis Katsouranis (Operations Manager). Mr Dell’anno was told that the reason for the meeting was that the owner of the business, Mr Geoff Sharp (Director), had advised that Mr Dell’anno was on the telephone during work hours. Mr Dell’anno contended he was on a toilet break at the time he took the telephone call.

•  Mr Dell’anno submits that Mr Dale and Mr Katsouranis asked him to resign and to sign a resignation letter to that effect. Mr Dell’anno refused to sign the letter and asserts that he was told by Mr Dale and Mr Katsouranis that if he did not resign, he would be dismissed.

•  Mr Dell’anno was handed the resignation letter which he asserts he was forced to sign. The letter was not written by Mr Dell’anno, nor was he provided the opportunity to read the letter or seek advice in relation to the implications.

•  Mr Dell’anno contends that when he was told to sign the resignation letter, he was directed to indicate on the letter that he had refused a support person, which he did.

•  Mr Dale directed Mr Dell’anno to hand in his clock on card and leave the premises. At this point, Mr Dell’anno requested to speak with Mr Sharpe regarding his employment status, this request was refused.

•  On 14 March 2018 (sic), Mr Dell’anno attended the worksite where he met Mr Sharpe at reception. Mr Dell’anno alleges that Mr Sharpe indicated to him that he still had a position of employment with Fresh Cheese. Mr Dale then met with Mr Dell’anno and asked him to leave the premises.

•  On 16 March 2018 Mr Dell’anno contacted Mr Dale by telephone regarding his employment status and alleges to have overheard his supervisor, Mr Scott Wallis, in the background advising that Mr Dell’anno was still employed and to attend work.

•  On 19 March 2018 Mr Dell’anno attended his worksite and was met with Mr Dale who advised him that he was no longer employed and that he is no longer to attend the work premises.

•  Mr Dell’anno submits that he was confused by the differing responses of the staff as to his employment status.

•  Mr Dell’anno contends that his resignation was forced.

•  Mr Dell’anno submits that he became aware of the dismissal on 19 March 2018 and that he subsequently lodged his dismissal on 5 April 2018, and thereby the application was made within the 21 day time limit. In the alternative, Mr Dell’anno submits that the time for lodging the application should be extended considering the circumstances of the dismissal on 13 March 2018.

[8] Fresh Cheese provided written submissions 3 which are relevantly summarised as follows:

•  Mr Dell’anno commenced employment with Fresh Cheese on 25 September 2008.

•  Mr Dell’anno resigned from employment on 13 March 2018.

•  On the morning of 13 March 2018 Mr Dell’anno was advised that there would be a disciplinary meeting in the afternoon of that day. Mr Dell’anno refused the offer of a support person.

•  During the disciplinary meeting Mr Dell’anno decided to resign from his position with Fresh Cheese.

•  Mr Dell’anno was paid out all of his entitlements and issued with a Statement of Service and Reference letter.

[9] On 14 June 2018 Mr Dell’anno provided supplementary submissions 4 which are relevantly summarised as follows:

•  Mr Dell’anno referred to the submissions previously provided.

•  Mr Dell’anno believed that the meeting on 13 March 2018 was due to the use of his mobile phone during work hours. Mr Dell’anno maintained his position that he was on a toilet break.

•  Mr Dell’anno asserts that on 13 March 2018 Mr Dale presented him with the resignation letter and that he stated words to the effect that if he did not sign the letter, he would be sacked.

•  Mr Dell’anno states that he was prevented from leaving the disciplinary meeting with Mr Dale and Mr Katsouranis until he signed the resignation letter.

•  Mr Dell’anno denies the allegation that Mr Dale prepared the resignation letter on his instruction.

•  It is submitted that Mr Dell’anno is of limited intellect and that the employer was aware of this. Mr Dell’anno did not understand the outcome of the disciplinary meeting and that he did not understand the need for the assistance of a support person.

•  Mr Dell’anno asserts that he was forced to sign the resignation letter by Mr Dale.

•  The unfair dismissal application was made in time. In the alternative, the circumstances of this matter warrant granting an extension of time for lodgement.

[10] On 14 June 2018 Fresh Cheese provided statements from Mr Dale, Mr Sharpe and Mr Katsouranis, together with additional submissions which reiterated the previous submissions.

[11] A Hearing was conducted by way of telephone conference on 21 June 2018. A sound file record of the telephone conference was kept. Mr Dell’anno was represented by Ms Anna Toban of counsel. Mr Dale represented Fresh Cheese. Permission (which was not opposed) was granted pursuant to s.596(2)(a),(c) of the Act. The Hearing was conducted as a Determinative Conference and each witness was sworn. As Mr Sharpe did not attend I did not receive his witness statement.

[12] Mr Dell’anno provided further written submissions which reiterated the original submissions and highlighted that Fresh Cheese had purported to be assisting Mr Dell’anno when in fact, they were assisting themselves for evidentiary reasons. Furthermore, Mr Dale’s statement supported Mr Dell’anno’s position that he was confused as to the details surrounding his exit from the company on 15 March 2018.

[13] Mr Dell’anno gave evidence at the Hearing, his evidence is summarised as follows:

•  The circumstances that led to the disciplinary meeting involved him taking a telephone call from a hospital in relation to his admission.

•  He did not believe he had any option but to sign the letter which was put to him by Mr Dale.

•  Mr Dell’anno did not understand the contents of that letter.

•  Mr Dell’anno returned to the workplace and met with Mr Dale, Mr Sharpe and Mr Katsouranis on 15 March 2018 to contest the dismissal.

•  On 15 March 2018 he signed a meeting record which indicated that the topic of the conversation was his “resignation/dismissal”. He was confused about the outcome of the meeting and wanted to return to work.

•  He returned to the workplace on 19 March 2018 to continue his protest against his dismissal and at that time realised his employment had ceased.

•  Mr Dell’anno asserts that he did not voluntarily resign from his employment.

•  On 5 July 2018 he met with his representative, Ms Toban, and his application was lodged on that day.

[14] It is appropriate to make some observations about Mr Dell’anno; he appears to have difficulty in understanding and/or communicating basic concepts (for example the giving of an affirmation). I accept that he was very confused about the status of his employment and felt that what had happened was unjust. Mr Dell’anno’s comprehension issues are compounded by his poor communication skills.

[15] Mr Katsouranis provided a statement 5 and gave evidence at the Hearing. His relevant evidence is summarised below:

•  On 6 March 2018 Mr Sharpe advised him that Mr Dell’anno had breached company policy. Mr Katsouranis then had a conversation with Mr Dale. They agreed that Mr Dell’anno had “had more than enough counselling sessions and warnings and decided that we could no longer condone the applicant constantly breaking and disregarding the rules.”

•  A meeting was scheduled for Tuesday 13 March 2018.

•  Mr Dell’anno was advised on the morning of the meeting. Mr Dell’anno signed a letter advising he did not want a support person at the meeting. Mr Dale explained that the meeting was called for a number of issues, particularly the use of his mobile phone in a restricted area on 6 March 2018 and another issue raised by his supervisor Mr Scott Wallis on 13 March 2018.

•  As a show of good will, for his long years with the company, Mr Dell’anno was advised that prior to being advised of the breaches he could choose to resign and the company would provide him with a Separation Certificate and a Reference letter ensuring he could seek employment elsewhere.

•  Mr Dell’anno then asked Mr Dale to write the resignation letter as he did not know how to, and Mr Dell’anno signed the resignation letter.

•  On 15 March 2018 Mr Dell’anno returned and sought to have a discussion. A meeting was held with Mr Sharpe and Mr Dale. Mr Dell’anno asked for Mr Katsouranis to be his support person. Mr Katsouranis attended the meeting but declined to act as a support person. Mr Dell’anno was advised at the meeting it was not an option for him to return to work.

[16] Mr Dale provided a statement 6 and gave evidence at the Hearing. His relevant evidence is summarized below:

•  Since Mr Dell’anno commenced employment in September 2008 he has been the subject of nine disciplinary actions.

•  Mr Dell’anno resigned on Thurday 13 March 2018. It was mutually agreed that no notice period would be required.

•  On 3 March 2018 Mr Dale and Mr Katsouranis met with Mr Dell’anno. Mr Dell’annno was asked if he would like a support person and he said he did not require or want a support person present. Mr Dell’anno signed a letter on which was contained in handwriting “Refused Representation”.

•  Mr Dale advised Mr Dell’anno that he “could choose to resign of his own free will prior to the complaints being heard and dealt with this morning,”…. “After some deliberation Mr Dell’anno decided he thought it was in his best interests to resign.” 7

•  Mr Dale went through the implications of him resigning and Mr Dell’anno advised that he definitely wanted to resign as he did not like working at the Respondent.

•  Mr Dale sought confirmation of the resignation in writing and Mr Dell’anno said he did not know what to write. Mr Dale then wrote out the resignation letter. During the Hearing, Mr Dale conceded that Mr Dell’anno did not ask him to write paragraph 2 of the letter which mutually agreed to waive any notice period.

•  Mr Dell’anno returned later that day to collect his Reference Letter and Separation Certificate.

•  On the morning of 15 March 2018 Mr Dale found Mr Dell’anno waiting for him at reception after he was found in the staff canteen that morning. A meeting was held. Mr Dell’anno signed a letter forgoing his opportunity to have a support person present. The subject matter of the meeting noted on the letter was to discuss Mr Dell’anno’s resignation/termination of employment.

•  Mr Dale’s typewritten notes of the meeting recorded that “Joe seemed unclear as to the resignation letter he had previously signed. Joe seemed to be confused as to whether his employment had in fact been terminated or if he had in fact resigned. He suggested he did not know what the difference between resigning and having employment terminated was”. 8

•  The notes also contain the sentence “He was also asked if anyone had forced him to sign the letter to which he replied that he had not been forced to sign the letter”. 9 Mr Dale accepted that no suggestion had been made that Mr Dell’anno had been forced to sign the resignation letter, and could not satisfactorily explain why this comment was contained in his notes. Mr Dale rejected the suggestion that he trying to construct a defence to an allegation of a constructive dismissal.

•  Mr Dell’anno asked for his job back and was advised that it was not an option.

•  The meeting concluded after thirty minutes.

[17] Mr Katsouranis also gave evidence.

[18] Mr Katsouranis’ evidence was that Mr Dell’anno was invited to resign prior to the complaints being heard, which was consistent with Mr Dale’s. Having observed that parts of his statement were strikingly similar to Mr Dale’s it was put to Mr Katsouranis that he had colluded with Mr Dale in the preparation of his statement. Mr Katsouranis denied the accusation.

Applicable Law

[19] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) any action taken by the person 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 the person and other persons in a similar position.”

[20] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹⁰which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. 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 every day 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.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

Consideration

[21] From the evidence before me and my observations of Mr Dell’anno, I do not accept that Mr Dell’anno understood the nature and effect of the resignation letter Mr Dale prepared. I accept that Mr Dell’anno was confused about his employment status and this appears to explain his return to the worksite which occurred on 15 March 2018.

[22] Mr Dale statement made much of the fact that Mr Dell’anno fully understood the contents of the letter and the implications of signing the letter. As was revealed by Mr Dale’s evidence, the content of the resignation letter was not agreed to by Mr Dell’anno, in fact, the paragraph concerning notice was not mentioned at all. I treat Mr Dale’s evidence concerning Mr Dell’anno’s understanding of the resignation letter, and his knowledge of the cessation of employment with a high level of caution. I prefer the evidence of Mr Dell’anno on this point.

[23] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 11 If Mr Dell’anno did not understand the nature and effect of the document he signed then the dismissal was not communicated to him and cannot have taken effect on 13 March 2018. I do not accept that Mr Dell’anno understood that his employment had come to an end on 13 March 2018.

[24] I find that the next meeting which was held with Mr Dell’anno occurred on 15 March 2018, not 14 March 2018 as suggested by Mr Dell’anno.

[25] I accept that by the time the meeting on 15 March 2018 had concluded, Mr Dell’anno understood that his employment had ended on 15 March 2018.

[26] I find that Mr Dell’anno’s employment ceased on 15 March 2018 and that the lodgement of his application on 5 May 2018 was within time and an extension of time is not required.

[27] In the alternative, if the dismissal took effect on 13 March 2018 then the unfair dismissal application by Mr Dell’anno was made 2 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[28] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[29] Mr Dell’anno explains the reason for the delay by his confusion until 19 March 2018 over his employment status as discussed above.

[30] I have accepted that there was confusion about Mr Dell’anno’s employment status between 13 and 15 March 2018. Beyond this point Mr Dell’anno was, or should have been aware that his employment had ceased. I accept that Mr Dell’anno was confused about his employment status until 19 March 2018. The period of the delay between 13 and 15 March 2018 has been explained.

[31] Mr Dell’anno did not explain the delay between 19 March and 5 April 2018 when he contact his lawyer.

[32] If the Applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters. 12

Whether the person first became aware of the dismissal after it had taken effect

[33] Mr Dell’anno states he did not become aware of the dismissal until 19 March 2018. In my view he should have understood by 15 March 2018 that his employment had ceased.

Any action taken by the person to dispute the dismissal

Mr Dell’anno protested about the dismissal between 13 and 19 March 2018 and contacted his lawyer on 5 April 2018.

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

[34] There is no submission that the granting of an extension of time represents prejudice to Fresh Cheese.

The merits of the application

[35] In terms of the merits of the application, the evidence before me clearly indicates that Mr Dell’anno was forced to resign, that Fresh Cheese failed to notify Mr Dell’anno of the valid reason relied upon and provide an opportunity to respond. Accordingly I have regarded the merits as a factor which weighs strongly in favour of the extension of time.

Fairness as between the person and other persons in a similar position

[36] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[37] If Mr Dell’anno did not lodge his application within time as I have found, in the alternative for the reasons I have set out above, I am satisfied that Mr Dell’anno’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred for conciliation. An Order¹³ reflecting this decision will be issued.

COMMISSIONER

Appearances:

A Toban on behalf of the Applicant.

R Dale on behalf of the Respondent.

Hearing details:

2018.

Adelaide.

21 June.

Printed by authority of the Commonwealth Government Printer

<PR608256>

 1   Exhibit A1 – Outline of Submissions.

 2   Exhibit A2 – statement of Mr Guiseppe Dell’anno.

 3   Exhibit R1 – Outline of Submissions.

 4   Exhibit A3 – Supplementary Submissions.

 5   Exhibit R3 – Statement of Mr Louis Katsouranis.

 6   Exhibit R2 – Statement of Mr Dale.

 7   Exhibit R2 – at [23] and [24].

 8   Exhibit R2 – attachment RD-8.

 9   Exhibit R2 – attachment RD-8.

10 [2011] FWAFB 975.

 11   Burns v Aboriginal Legal Service of Western Australia (Inc) AIRCFB 1413/00 (21 November 2000) [24].

 12   [2018] FWCFB 901.

13 PR608257.