Jane Angelini v Italian Australian Sporting and Social Club of Gippsland Inc T/A Italian Australian Sporting and Social Club

[2016] FWC 2263

[2016] FWC 2263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jane Angelini
v
Italian Australian Sporting and Social Club of Gippsland Inc T/A Italian Australian Sporting And Social Club
(U2016/629)

COMMISSIONER BISSETT MELBOURNE, 12 APRIL 2016

Application for relief from unfair dismissal- Application for an Extension of time - Application dismissed.

[1] Ms Jane Angelini has made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Angelini was employed by Italian Australian Sporting and Social Club (the Club). She commenced employment in October 2009.

[2] On 14 January 2016 Ms Angelini was called into a meeting with Ms Cassandra Rendell, the acting Club Manager, and Ms Lisa Williamson. Matters associated with her employment, including the number of hours she might work in the future, were discussed.

[3] That night Ms Angelini sent a letter of resignation to Ms Rendell. In that letter she provided 10 days’ notice of her resignation from employment with the Club. In her letter of resignation Ms Angelini said that she did not feel that she had ‘any other choice, but to resign.’

[4] The Club replied on 15 January 2016, acknowledged her letter of resignation and advised her that she did not need to attend work for the period of her notice and that this period would be paid out. She was also advised at this time that, due to an audit of payroll and other matters, there would be a delay until late February of the payment of her outstanding leave.

[5] On 2 February 2016 Ms Rendell wrote to Ms Angelini and advised her that the Club had sought advice from ‘Fair Work Australia’ (sic) who advised the Club that there was no registered agreement with FWA so the Club was therefore not obliged to pay more than the award rate and leave loading for her accrued leave. The Club also said that it had been ‘advised by FWA’ that as Ms Angelini had been paid overtime and penalty rates she was not entitled to ADOs. It would therefore deduct from her final payment the equivalent amount in ADOs taken over the time of her employment.

[6] On 15 February 2016 Ms Angelini made an application for unfair dismissal. In that application Ms Angelini says that the date of termination of her employment was 24 January 2016.

[7] If Ms Angelini was dismissed on 24 January 2016 as she claimed her application for unfair dismissal was made one day outside the statutory time period specified in s.394 of the Act. Ms Angelini therefore requires an extension of time within which to make her application to the Commission.

[8] At the commencement of the hearing of the application for an extension of time, I granted Ms Block of Counsel permission to represent the Club having found that it was unable to represent itself effectively. Ms Angelini was represented by her husband, Mr Hodge.

Legislation

[9] Section 394(2) of the Act requires that an application for unfair dismissal must be made within 21 days of the time the dismissal took effect.

[10] The Commission has the power, pursuant to s.394(3) of the Act, to extend the time within which an application can be made if it 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.

Submissions

The reason for the delay

[11] Mr Hodge says that Ms Angelini was forced to resign on 14 January 2016 due to the conduct of the Club in forcing her to reduce her hours and not offering her other hours that were available.

[12] Mr Hodge says that Ms Angelini received a letter from the Club with respect to her pay rate and ADOs on 2 February 2016. Mr Hodge says that information was then sought from the Club as to how it had come to the conclusion that she was overpaid and that she was covered by an award. He says that Ms Angelini was employed under a contract and that she was entitled to take accrued days off. He submits that the decision of the Club resulted in money being withheld from Ms Angelini to which she was entitled.

[13] Mr Hodge submits that Ms Angelini could not make her application for unfair dismissal until such time as an explanation was given to her by the Club of its decisions. Further, he says that Ms Angelini was upset by what had happened to her.

[14] Mr Hodge also submits that it was his fault that Ms Angelini’s application was one day late, he could have made it the day before and was sorry that it was late.

[15] The Club says that there is no evidence that Ms Angelini attempted to make her application within the 21 days required by the Act. Further, it submits that if the date of dismissal was 14 January 2016 – being the date Ms Angelini says she was forced to resign – then the application is actually 11 days out of time.

[16] The Club submits that no adequate or acceptable reason for the delay has been put forward by Ms Angelini and that the material or information Mr Hodge says Ms Angelini was waiting for was not necessary for the making of an application for unfair dismissal. Ms Angelini was aware, from the Club’s response to her letter of resignation, that she would not have her leave entitlements paid until late February.

When she became aware of the dismissal

[17] Mr Hodge says Ms Angelini says that she was forced to resign on 14 January 2016 following the meeting with Ms Rendell and Ms Williamson. Her dismissal date however, was 24 January 2016 which is the date she provided in her letter of resignation.

[18] Ms Angelini did not work after 14 January 2016 and says she had a medical certificate indicating she was not fit for work.

Action taken to dispute the dismissal

[19] Mr Hodge says that he spoke to the Club President following receipt of the letter of 2 February 2016.

[20] The Club says that this discussion was not about the purported dismissal.

Prejudice

[21] Mr Hodge makes no submission on this matter.

[22] The Club submits that it is a small, not for profit, operation and it would suffer prejudice due to the time involved, cost and inconvenience of fighting an application in circumstances where the applicant for unfair dismissal resigned her employment.

[23] The Club agrees that it will not suffer any additional prejudice besides that already mentioned caused by the delay in making the application.

The merits of the application

[24] Mr Hodge submits that the dismissal of Ms Angelini was unfair because the Club cut her hours of work and were going to give these hours to others. Further Mr Hodge says Ms Angelini should have been offered additional hours to keep her hours up.

[25] The Club says there was no dismissal but also says the merits of the application should be a neutral consideration in determining the extension of time.

Consideration

[26] The Commission can only grant an extension of time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench of Fair Work Australia found:

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…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.

[27] The reasons proffered for the delay in making the application do little to advance Ms Angelini’s claim for an extension of time. That Mr Hodge could have made the application the day before or that Ms Angelini was upset at her dismissal are not reasons of substance for a delay in making an application. That Mr Hodge could have made the application the day before it was made begs the question as to why he did not do so. That Ms Angelini was upset is not an unusual response when employment ends in an unplanned way.

[28] Further, that Mr Hodge (or Ms Angelini) may have been seeking answers as to why the Club concluded she was covered by an award or her leave paid out at a particular rate are not matters that explain the delay in making her application for unfair dismissal. If Ms Angelini has a complaint as to her final payment these are matters resolved through the Fair Work Ombudsman and are not matters that make a dismissal unfair. In this case the calculation of any final payment to Ms Angelini was decided well after the events that she said forced her to resign. I am not sure how they relate to any application of unfair dismissal.

[29] Even if it was reasonable to seek answers to these questions prior to making an application for unfair dismissal that does not explain the totality of the delay from the time of the purported dismissal and then receipt of the letter on 2 February 2016 to 15 February 2016 when the application was lodged.

[30] In reaching my conclusion I have not had any regard to any merits of the application. I consider this reasonable given that there is a further jurisdictional matter to consider as to whether or not Ms Angelini resigned or was dismissed.

[31] I note that if the events of 14 January 2016 are those that forced Ms Angelini to resign then the date of the purported dismissal must be 14 January 2016, not 24 January 2016. In these circumstances Ms Angelini’s application was 11 days out of time.

[32] Mr Hodge did not claim that the reason for the delay was representative error. If such a claim was made I do not consider, in this case, that it adds to the consideration of this matter. This is not a case of an applicant putting instructions clearly before a representative and then leaving the task to that person. Ms Angelini’s representative is her husband. There is nothing to indicate she was well separated from the task to be performed and did not have access to her documents such that she could not ensure the application was made on time.

[33] Ms Angelini has not provided me with any reason for the delay in making her application for unfair dismissal. That she was also seeking some information or clarification from the Club does not explain why she could not make her application within the timeframe caused by the Act.

Conclusion

[34] Considering all of the material before me I am satisfied that there is nothing unusual, special or uncommon about the circumstances such that I could conclude that there are exceptional circumstances and I should therefore grant an extension of time within which the application for unfair dismissal could be made.

[35] Ms Angelini’s application for unfair dismissal was made outside the time limits prescribed by the Act. It is therefore dismissed. An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

S Hodge for the applicant.

N Block of Counsel for the respondent.

Hearing details:

2016.

Melbourne:

6 April

<Price code C, PR578927>

 1 (2011) 203 IR 1.

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