Jason Cutrupi v Glendale Homes Pty Ltd, Paul Cannon
[2023] FWC 2884
•3 NOVEMBER 2023
| [2023] FWC 2884 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jason Cutrupi
v
Glendale Homes Pty Ltd, Paul Cannon
(C2023/5469)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 3 NOVEMBER 2023 |
General protections dismissal dispute - application filed out of time –circumstances not exceptional – application dismissed.
Mr Jason Cutrupi (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Glendale Homes Pty Ltd (First Respondent) in contravention of Part 3-1 of the FW Act. The Applicant also alleges that Mr Paul Cannon (the Second Respondent) took adverse action against him in the termination of his employment.
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application was made out of time.
Before dealing with the dispute, I must be satisfied that the application was not made out of time.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect.
Submissions and evidence
The Applicant submits that the dismissal took effect on 26 June 2023 because it was on this date that the Applicant says he was notified that he was no longer required to work.[1]
The Respondent submits that the dismissal took effect on 26 June 2023.[2] This is at odds with the statement of Mr Paul Cannon (Second Respondent and Supervisor for the First Respondent) who says he cannot recall when he made the call but having reviewed his logs, he thinks it may have been on 6 July 2023 that the told the Payroll Officer that the Applicant’s employment had been terminated.[3]
Findings
I find that given one of the Respondent’s witnesses Mr Cannon was unsure of himself about this date, and all other evidence indicates the termination took effect on 26 June 2023.[4]
Having regard to the matters I have referred to above, I find that the dismissal took effect on 26 June 2023.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[5]
As I found above, the dismissal took effect on 26 June 2023[6]. The final day of the 21 day period was therefore 17 July 2023 and ended at midnight on that day. The application was made on 7 September 2023. The application was made 52 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[7]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 July 2023. The delay is the period commencing immediately after that time until 7 September 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[8]
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.[9]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[10]
Submissions and evidence
The Applicant submitted that the delay was for the following reason:
· That he was experiencing an overwhelming amount of pain from his workplace injury to his back and as a result of the medication he was taking, he did not have any capacity to dispute his termination.[11]
In relation to the reason for the delay, the Respondent submitted that the Applicant did not provide corroborating evidence to support any claim of exceptional circumstances.[12] Further the Respondent submitted that the Applicant did not provide any medical evidence to support the claims he has made in respect of his medical condition preventing him from talking any action to dispute his dismissal.[13] The Respondent provided some case law to support their proposition.[14] Further, the Respondent submitted that the Applicant did not meet the threshold for exceptional circumstances.[15] The Respondent made further written submissions which I don’t intend to repeat but briefly they submit that the medical evidence submitted by the Applicant does not support the Applicant’s claim that he was rendered medically incapable of lodging his claim within the requisite time frame.
The Applicant’s evidence was that he was in a great deal of pain and was on medication that prevented him from having the physical capacity to make a claim.[16] Further, he went to see his doctor on 11 July 2023 who advised him to make a WorkCover claim and provided him with a WorkCover certificate for his back injury.[17] The Applicant then contacted WorkCover Queensland and made a verbal application for Worker’s Compensation.[18] The Applicant attended for an ultrasound of his left groin on 17 July 2023.[19] The Applicant received a rejection from WorkCover on 10 August 2023[20] and attended for an ultrasound of his anterior abdominal wall on 25 August 2023.[21] On 28 August, the Applicant gave evidence that as he was in so much pain he was unable to take steps to dispute his termination or workers compensation claim he contacted the Queensland Law Society and was referred to Melissa Demarco of Demarco Law.[22] He subsequently contacted her that day to make an appointment to see her in person as he claims that he has difficulty understanding and interpreting written information due to an intellectual disability he suffers from.[23] The Applicant gave evidence that he met with Ms Demarco on 5 September 2023 and that he gave her instructions to request a copy of his file from WorkCover and to prepare and submit an Application for a Review of his WorkCover claim.[24] The Applicant further gave evidence that he signed the Form F8 to lodge this present application on 7 September 2023 and it was lodged that day.[25] The Applicant provided the following medical evidence to support his claim:”
(a)medical certificate dated 10 June 2023 stating the Applicant is unable to work from 10 June 2023 to 22 June 2023;[26]
(b)medical certificate dated 12 June 2023 stating the Applicant is unable to work from 12 June 2023 to 19 June 2023;[27]
(c)medical certificate dated 19 June 2023 stating the Applicant is unable to work from 19 June 2023 to 22 June 2023;[28]
(d) CT scan of the lumbar spine conducted on 22 June 2023, noting:
(i) a history of low back pain with radiation on both sides;
(ii) mild broad-based posterolateral disc bulge at the L3/4;
(iii) moderate broad-based posterolateral disc bulge at the L4/5;
(iv) minimal broad-based posterolateral disc bulge at the L5/S1;[29]
(d)medical certificate dated 22 June 2023 listing back pain as the diagnosis;[30]
(e)Worker’ compensation medical certificate dated 11 July 2023 noting a diagnosis of ‘left inguinal hernia, back pain – disc bulging’;[31]
(f)ultrasound of left groin conducted on 17 July 2023, noting an inguinal hernia;[32] and
(h) ultrasound of the anterior abdominal wall conducted on 25 August 2023, noting a non-specific elliptical hypoechoic lesion and medial.[33]
In respect of the reason for the delay, the Respondent’s evidence was that on the morning of 11 July 2023, the Applicant called Ms Julie Evans, Director of the Respondent, to ask her what the Applicant’s last day of work was. Ms Evans gave evidence that she was unable to answer at that time and that she advised the Applicant she would ask the Payroll Officer to call him with that information when she returned to her desk. Ms Evans gave evidence that she received a claim from Workcover at 12:30pm that day.[34]
Findings
Having regard to the above, I find that the reasons for the delay were that the Applicant was feeling back pain, was attending to self-care and a number of medical diagnostic testing appointments. He lodged a WorkCover claim on 11 July 2023 and made the decision to obtain legal advice in respect of his WorkCover claim rejection and the termination of his employment on 28 August 2023.
The Act does not specify what reasons for delay might constitute exceptional circumstances, however decisions of the Commission have referred to an acceptable[35] or a reasonable explanation.[36]
In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”[37]
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[38]
I note that the Applicant relies on being physically incapable of lodging his application.
The application was filed 73 days after the dismissal which is 52 days late. This is a lengthy delay in consideration of the 21-day requirement under the Act. The medical evidence that is before the Commission does not support the Applicant’s complete physical incapacity to conduct his affairs. Further, there is no evidence before the Commission of medication taken by the Applicant that caused any impairment. I note the Applicant was capable of lodging his WorkCover claim and attending numerous medical and diagnostic appointments during the period of delay.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 7 September 2023. I consider this to be a neutral issue.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time were granted because of the costs that would be incurred and also because the memories of the relevant witnesses may diminish in quality or fade.
Submissions and evidence
Specifically, the Respondent submits that, if an extension of time were granted, it would suffer the following prejudice:
·The delay would prejudice the memories of the witnesses thereby prejudicing their ability to defend themselves. The Respondent referred to an authority to support this proposition[39] however I note that in that case there was a delay of some 23 months and the delay in this case is just under 2 months.
The Applicant submits that, even if the relevant facts are made out by the Respondent, such prejudice is not material because there “will be no great delay arising from this decision that will exacerbate any prejudice that may already exist.”[40]
Findings
A relevant prejudice is one that the Respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. The costs incurred in defending a claim in respect of which an extension of time has been granted are not a relevant prejudice. They are costs that the Respondent would have incurred, had the application been made within 21 days of the dismissal taking effect.[41] The effect of a significant delay on the recollections of the employer’s witnesses may be a relevant prejudice.[42] However, I don’t believe that 2 months is a significant delay in consideration of these factors.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[43]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application. I consider this to be a neutral issue.
Fairness as between the Applicant and other persons in a similar position
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.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[44] 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.[45]
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[46]
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[47]
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed.
DEPUTY PRESIDENT
[1] Applicant’s position is found at Digital Court Book p.8, q.1.2 and 1.3; see also Digital Court Book p.17, Point 16.
[2] Respondent’s position is found at Digital Court Book p.66, q.2.2, point 1.
[3] Witness Statement of Paul Cannon dated 18 October 2023
[4] Applicant’s position is found at Digital Court Book p.8, q.1.2 and 1.3; see also Digital Court Book p.17, Point 16. Respondent’s position is found at Digital Court Book p.66, q.2.2, point 1.
[5] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[6] Ibid above n4.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[8] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[11] Digital Court Book p.21 [23].
[12] Digital Court Book p.67, [5].
[13] Digital Court Book p.67, [6].
[14] Ian Sutherland v John L. Pierce Pty Ltd [2014] FWC 3104, [28]-[31] and Dickson v Mornington Shire Council [2020] QIRC 106 [21]-[31].
[15] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 [21].
[16] Digital Court Book p.21 [23]; see also Digital Court Book Applicant’s outline of submissions, p.53 [6].
[17] Digital Court Book p.21-22 Statement of Applicant [24]-[25].
[18] Digital Court Book p.22 Statement of Applicant [26].
[19] Digital Court Book p.22 Statement of Applicant [27].
[20] Digital Court Book p.22 Statement of Applicant [29].
[21] Digital Court Book p.22 Statement of Applicant [30].
[22] Digital Court Book p.22 Statement of Applicant [31].
[23] Digital Court Book p.22 Statement of Applicant [32].
[24] Digital Court Book p.22 Statement of Applicant [33]-[34].
[25] Digital Court Book p.22 Statement of Applicant [37].
[26] Digital Court Book p.27 Statement of Applicant JC-4.
[27] Digital Court Book p.25 Statement of Applicant JC-2.
[28] Digital Court Book p.27 Statement of Applicant JC-4.
[29] Digital Court Book p.28 Statement of Applicant JC-5.
[30] Digital Court Book p.29 Statement of Applicant JC-6.
[31] Digital Court Book p.31 Statement of Applicant JC-7.
[32] Digital Court Book p.32 Statement of Applicant JC-9.
[33] Digital Court Book p.38 Statement of Applicant JC-11.
[34] Digital Court Book p.27 Statement of Ms Julie Evans [33]-[34].
[35] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].
[36] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].
[37] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[38] Ibid [45]
[39] Dye v Commonwealth Securities Limited [2010] FCA 720 at [112] citing Brisbane South Regional Health Authority v Sharon Annette Taylor (1996) 186 CLR 541 at 551–555 per McHugh J.
[40] Digital Court Book p.19 [32].
[41] Clarke v Service to Youth Council Inc [2013] FCA 1018, [31].
[42] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[43] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[44] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[45] Ibid.
[46] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[47] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
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