Giuseppe Portale v Australian Postal Corporation
[2024] FWC 1697
•27 JUNE 2024
| [2024] FWC 1697 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Giuseppe Portale
v
Australian Postal Corporation
(U2024/3392)
| DEPUTY PRESIDENT EASTON | SYDNEY, 27 JUNE 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – out of time application – circumstances not exceptional – application dismissed.
Mr Guiseppe Portale was employed by the Australian Postal Corporation as a Parcel Officer. Mr Portale was dismissed from his employment on 19 December 2023. On 25 March 2024 he made an unfair dismissal claim under s.394 of the Fair Work Act 2009 (Cth). Section 394(1) requires unfair dismissal claims to be lodged within 21 days after the dismissal took effect, in Mr Portale’s case being midnight on 9 January 2024.
Mr Portale’s application was made 76 days late. Section 394(3) gives the Commission a discretion to allow an extension of time to lodge unfair dismissal claims, but only if there are exceptional circumstances.
For the reasons set out below I find that there are no exceptional circumstances that could allow me to make an order to grant Mr Portale an extension of time.
Section 394
Section 394 the Fair Work Act 2009 (Cth) is in the following terms:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.”
Section 394 – Exceptional Circumstances
Section 394 specifically requires the Commission to take into account the matters listed in s.394(3). The Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, (2018) 273 IR 156, (Stogiannidis) described how the Commission should take these considerations into account:
(a)generally the Commission must consider all of the relevant circumstances because factors considered in combination might support a finding of exceptional circumstances even though no one particular factor is exceptional (at [17] and [38]);
(b)the obligation to "take into account" the matters set out in s.394(3) means that each of the listed matters must be treated as a matter of significance in the decision-making process insofar as it is relevant (at [19]);
(c)no one factor needs to be exceptional in order to enliven the discretion to extend time (at [38]); and
(d)individual matters might not be particularly significant when viewed in isolation, but the Commission must consider the matters collectively and ask whether they disclose exceptional circumstances (at [39]).
The exceptional circumstances requirement in s.394(3) sets a ‘high hurdle’ for applicants to overcome. The Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, (2011) 203 IR 1 described exceptional circumstances as “a situation which is out of the ordinary course, unusual, special or uncommon”:
“[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.”
Reason for the delay
The reason(s) for the delay must be taken into account (per s.394(3)(a)). Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay (per Stogiannidis at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams[2018] FWCFB 4109 at [36], (2018) 279 IR 361 (Yarra Trams)).
That said, if an applicant does not have a credible explanation the Commission is unlikely to find that exceptional circumstances exist - at least exceptional circumstances that support an extension of time.
The test invariably applied is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reason(s) for the delay are not measured in a vacuum. The reason(s) for the delay are assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondly in deciding whether the Commission should exercise its discretion to grant the extension.
A good, credible or even reasonable explanation for the delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good, credible explanations for delay are not granted an extension of time because they cannot firstly establish that there are exceptional circumstances.
The Commission must consider the reason for the delay over the whole of the period between the dismissal and the commencement of the proceedings, rather than just the period after time limit has expired (see Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [31] (Diotti).
The Delay
The following factual matters are not controversial:
(a)Mr Portale commenced employment with Australian Postal Corporation (Australia Post) on 1 October 2021;
(b)on 18 October 2023 there was an incident at the workplace and a complaint was received about Mr Portale’s conduct;
(c)on 30 October 2023 Mr Portale was advised in writing that he was suspended with pay;
(d)Mr Normy Chamoun, who is the Head of Processing NSW/ACT, oversaw an inquiry into the incident on 18 October 2023. An enquiry officer conducted an investigation;
(e)on 4 December 2023 a letter was sent to Mr Portale reciting the allegations, explaining how the conduct contravened Australia Post’s code of conduct and indicating that the enquiry officer had found the breaches proven. The letter said “accordingly, I have recommended to the Delegate, Mr Normy Chamoun that you be dismissed”;
(f)on 7 December 2023 Mr Portale met with Mr Chamoun. Mr Portale was represented at this meeting by an officer from his union;
(g)on 19 December 2023 a letter was sent to Mr Portale terminating his employment. The heading on the letter is “NOTIFICATION OF DISCIPLINARY DECISION”. There are three pages to the letter but only the first and last page were sent to Mr Portale. It does not specifically say on the first or last page that Mr Portale’s employment was terminated. However page 3 of the letter includes the following:
“If you consider the penalty imposed in relation to your breaches of Our Ethics to be harsh, unjust or unreasonable and wish that decision to be reviewed by a Board of Reference, you must complete the enclosed ‘Application For A Board of Reference Review’ (review form). The completed review form must then be lodged with Workplace Relations Coordinator, Board of Reference, [physical address redacted] or alternatively email your application to [email address redacted] or Fax to [fax number redacted] within 14 calendar days of the date of this letter i.e. by Tuesday 02/01/24.
If you wish to consider your rights in respect to alternative legal remedies including the time limits that apply under the Fair Work Act 2009, you will need to seek external advice.”
(h)Mr Portale forwarded the letter to his union and instructed them to “appeal” the decision;
on 5 January 2024 the Assistant Secretary of the CWU Central Branch (ACT/NSW), Mr Chaloner, lodged an application for an internal Board Of Reference review on behalf of Mr Portale. Mr Portale did not sign the application for review. The application for review indicates that the decision appealed against was the decision to dismiss Mr Portale from employment;
(j)a hearing of the Board of Reference was scheduled for 24 January 2024;
(k)on 23 January 2024 Mr Chaloner sent an email to the Board of Reference Administrator and others in the following terms:
“Following further discussions today with the Australia Post Delegate, Mr Normy Chamoun a settlement has been reached.
With a settlement to the matter involving Mr Guiseppe Portale there is no longer a need to the Board of Reference Review scheduled for tomorrow.
It would be appreciated if Mr Peter Sams, BOR Chairman is advised of the cancellation of the Partale [sic] BOR.
…”
(l)On 5 February 2024 Mr Portale received an email from his union attaching a draft Settlement Agreement;
(m)Mr Portale did not sign the agreement;
(n)on 25 March 2024 Mr Portale filed his unfair dismissal claim.
Mr Portale said that he did not speak to anyone from his union after receiving the draft Settlement Agreement on 5 February 2024.
Mr Portale said that he thought his union had lodged an unfair dismissal claim on his behalf. In March 2024 he searched the Fair Work Commissions website to find details of his unfair dismissal claim and made a telephone inquiry. He said he was “informed that there was [no unfair dismissal claim] pending and there had never been any lodged” and that “this was most disturbing for me to comprehend what had happened.”
Mr Portale said that he lodged an application himself on the same day (25 March 2024), and then made arrangements to obtain legal advice. He obtained legal advice on 8 April 2024 and, he said, was told that the missing page in the Notification of Disciplinary Decision “rendered the correspondence and the notice meaningless and unenforceable.”
Mr Portale’s explanation for the delay
Mr Portale’s explanation for the delay was summarised in his written submissions:
(a)no effective and complete Notice of Termination has ever been served (page 2 has always been missing);
(b)no full and complete statements of witnesses have ever been disclosed by the Respondent;
(c)my CWU Union rep failed to lodge any appeal or review contrary to my instructions;
(d)I appealed as soon as I found-out that no appeal had been lodged whatsoever by the Union rep;
(e)There have been gross injustices by the Respondent as regards procedures, …denial of natural justice,…rights of appeal, rights of reply…;
(f)the letter of the Respondent’s dated 19.12.2024 is vague, incomplete and not understandable;
(g)that same letter raises issues that should have been discussed with Mr Portale and any witnesses at the time they happened or as soon thereafter as possible, and should not have been ambushed upon Mr Portale by way of false allegations and no statements months later and while Mr Portale was not at the place of employment.
Mr Portale also submitted “I still do not know the exact status of my employment”, which is understood to be a reference to the fact that the two pages of the Notification of Disciplinary Decision that he received did not include an explicit statement that his employment was terminated. Mr Portale also argued that he has not been dismissed at all.
Consideration of the reasons for the delay
Mr Portale gave evidence and was cross-examined. Mr Portale was a poor witness. Mr Portale did not accept propositions put to him in cross examination, even the most obviously correct propositions, unless they were favourable for his case. Much of his evidence under cross-examination was either irrational or untrue.
Under cross-examination Mr Portale initially denied ever receiving the letter of 4 December 2023 - being the letter advising that the allegations against him were accepted and that Mr Chamoun was considering whether to dismiss him. After further questioning he said he could not recall whether he had received the letter. Then he said that he had forwarded the letter to his union but had not read it.
Mr Portale also said that he received the letter dated 19 December 2023 (the Notification of Disciplinary Decision letter) and forwarded it to his union for advice without reading it. Mr Portale also said that that he instructed his union to appeal. Mr Portale could not explain why he instructed his union to appeal, or what decision he thought his union would appeal. Mr Portale maintained these illogical or false explanations in order to argue that he did not know whether or not he had been dismissed.
Mr Portale also said that he did not know “anything about” the appeal to the Board of Reference, which is an assertion that makes no sense at all. Australia Post and Mr Portale’s union thought that he had reached a settlement of the Board of Review matter (per Mr Chaloner’s email on 23 January 2024). Mr Portale received a draft Settlement Agreement from his union on 5 February 2024.
In cross-examination Mr Portale initially said that he did not read the proposed Settlement Agreement. Then he said he wanted independent legal advice about the consequences for other claims (including workers’ compensation) he might want to make against Australia Post. Obviously Mr Portale had to have read the document and the releases included in the document in order to decide that he wanted advice about the legal effect of releasing Australia Post from legal claims. Then Mr Portale said that he did read the draft Settlement Agreement but did not understand some of the terms.
The proposed Settlement Agreement included in its recitals that “on 19 December 2023 Australia Post terminated [his] employment” and also “the Employee appealed this decision to the Australia Post board of reference”. Mr Portale was taken to these words in cross-examination and asked whether he understood them. He then said that he “hardly read” the document and that he just briefly scanned its contents.
In his evidence Mr Portale adhered to his story that he did not know in January, February and March 2024 whether he was dismissed in December 2023. Mr Portale said he received free legal advice in April 2024 that the termination letter was not effective because the second page was omitted. It is probable that Mr Portale’s evidence under cross-examination was an attempt to reverse engineer his case to match the legal advice he said he received.
However, in the time between receiving the letter on 19 December 2023 and filing his unfair dismissal claim on 25 March 2024, Mr Portale’s actions were all consistent with him knowing that his employment had been terminated on 19 December 2023. The internal appeal he instructed his union to lodge, the apparent settlement of the internal appeal accompanied by a release agreement, even the return to the workplace in February 2024 to collect his personal belongings, were consistent with Mr Portale knowing that he was dismissed.
Mr Portale also claimed some sort of representative error. Representative error may constitute exceptional circumstances if Mr Portale has not also contributed to the delay. Representative error does not provide an inviolable reason amounting to exceptional circumstances. It is possible, for example, if an applicant delays seeking help that the Commission might not find that exceptional circumstances exist (Diotti at [32]).
The actions of an applicant are relevant even if the applicant is relying upon a representative’s error. Applicants cannot simply instruct a solicitor or a union and then sit on their hands for an extended period. A delay in a solicitor responding to a prospective client is not representative error (Yarra Trams at [59]-[61]).
In Mr Portale’s case it seems clear that he did instruct his union to “appeal” the dismissal. Mr Portale did not describe any advice he received from his union about whether he should appeal by way of an internal appeal to a Board of Reference or by way of an unfair dismissal application. Mr Portale claims that the union lodged the internal review without his knowledge or instruction. I cannot accept this to be factually correct in light of the surrounding evidence. Even if it were somehow true, Mr Portale did not give any evidence about following up with his union the progress of his “appeal”. On Mr Portale’s argument he did sit on his proverbial hands doing nothing for an extended period.
The evidence shows that Mr Portale did interact further with his union when dealing with the internal review. It seems highly unlikely that Mr Portale’s union would make an agreement to settle the internal Board of Reference proceedings without having any interactions with him. Mr Portale admitted under cross-examination that his union advised him to sign the Release Agreement.
If Mr Portale genuinely thought that his union had lodged an unfair dismissal application, then he would have raised his concerns with his union in January or February 2024 and directed them to immediately file. Mr Portale led no evidence of any such interaction with his union.
There is no evidence of Mr Portale having any further contact with his union after 5 February 2024. Mr Portale’s explanation for the delay between receiving the draft Settlement Agreement on 5 February 2024 and filing his unfair dismissal claim on 25 March 2024 is not at all satisfactory. His explanation does not account for the delay over the whole month of February when, armed with the draft Settlement Agreement and supposedly uncertain of the effect of the settlement agreement on any workers’ compensation claim he might have against Australia Post, Mr Portale does not appear to have done anything to investigate his rights. On his account he filed his unfair dismissal application on the very same day that he found out that his union had not previously made an application. The difficulty for Mr Portale in this explanation is that he took six weeks to make the inquiry to the Commission and he has not explained what steps, if any, he took in that six weeks.
The effect of the letter of 19 December 2023 was clear, even if the second page was not sent. The letter is not “vague, incomplete and not understandable” as Mr Portale submitted. I do not accept that there was any uncertainty about whether Mr Portale was dismissed. Mr Portale’s conduct, and his union’s conduct, was entirely consistent with Mr Portale having been dismissed and Mr Portale fully understanding that he had been dismissed.
In taking into account all of the above, the reasons for the delay do not point towards the existence of exceptional circumstances. More so, even if I were to find that there were exceptional circumstances, Mr Portale’s explanations for the delay do not support the granting of an extension of time.
Merits of the application
The merits of the application must be taken into account (s.394(3)(e)) when considering whether there are exceptional circumstances and extension of time more generally. The Commission is not required to, and does not, conduct a full inquiry into the merits to satisfy s.394(3)(e). There are sound reasons why the Commission does not do so - most notably because parties should not have to present their evidentiary case twice (see Yarra Trams at [72]).
In this context it is sufficient for the Commission to make a preliminary assessment about whether there is any merit to the application (see Thomas Cosgrove v Clarity Interiors[2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168).
The Commission is less likely to find that there are exceptional circumstances (that support an extension of time) if the application has little or no apparent merit. The Commission is even less likely to exercise its discretion to grant an extension if there is little apparent likelihood that the application will be successful after a full trial (see Yarra Trams at [71]).
A preliminary assessment of the merits indicates that Mr Portale’s case is not strong. His alleged conduct on 18 October 2023, if proven, was highly inappropriate. Mr Portale’s conduct at the hearing included elements of the same inappropriate behaviour. I need not expand any further on these matters.
Overall I do not consider the merits of Mr Portale’s case point towards a finding that there are exceptional circumstances. I consider the merits to be, at best, a neutral consideration.
Section 394(3) – other factors
The other matters itemised in s.394(3) are view neutral considerations. First, despite the case he advanced in the Commission Mr Portale was notified of the dismissal on the same day that it took effect (s.394(3)(b)), and therefore had the benefit of the full 21-day period to lodge an application. Secondly, there is no evidence of prejudice to the employer (s.394(3)(d)). Thirdly, I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Portale and other persons (s.394(3)(f)). I note that Mr Portale took steps to challenge the dismissal (s.394(3)(c)) by way of an internal appeal to a Board of Reference however that appeal was resolved, or at least Mr Portale stopped prosecuting his appeal by 5 February 2024.
As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time and individual factors might not be particularly significant when viewed in isolation, but that I must also consider the matters collectively and ask whether they disclose exceptional circumstances (Stogiannidis at [38]-[39]).
In this case none of the above matters considered individually point towards there being any exceptional circumstances. For completeness I am still not satisfied that there are exceptional circumstances after reviewing the above matters collectively.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mr Portale, I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.
Accordingly, the application for an unfair dismissal remedy must be dismissed (PR776512).
DEPUTY PRESIDENT
Appearances:
G Portale, Applicant
S McIntosh of Counsel instructed by N Cini for the Respondent
Hearing details:
2024.
Sydney
May 10.
Printed by authority of the Commonwealth Government Printer
<PR776511>
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