Joe Sassano v Metro Trains Melbourne

[2016] FWC 3969

[2016] FWC 3969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joe Sassano
v
Metro Trains Melbourne
(U2016/7057)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr Joe Sassano alleged that the termination of his employment by Metro Trains was unfair. Metro denies the allegation.

[2] Given his dismissal took effect on 15 April 2016 his unfair dismissal application lodged on 18 May 2016 was not made within 21 days of the date the dismissal took effect.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

[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.” [Endnotes not reproduced]

(a) the reason for the delay;

[5] Mr Sassano gave evidence that his position was made redundant because of a reduction in the number of claims and the introduction of a new data base such that Metro said it only needed one person to manage the entire workers compensation portfolio. He said he was “recently” informed that that no changes had been made and that his manager was performing his duties. He said his position still existed and hence he position was not made redundant.

[6] He said he contacted the union delegate on numerous occasions and he said he would make further representations on his behalf. He did not hear back from him.

[7] He said he was not aware of the 21 day time limit until he lodged the application. He also said that his father in law passed away on 5 May 2016 and his wife had been ill.

[8] At the hearing, Mr Sassano gave evidence that at the time he was advised of the redundancy he did not accept the reasons for the decision. He did not accept that there had been a reduction in the workload. He further doubted that introduction of the new data base would have an impact. Despite this he did not lodge his application upon his dismissal.

[9] He said he first contacted his union organiser on 5 May 2016 who did not return his call. On 9 May 2016, his organiser left a message telling him that he would talk to the union’s legal advisor. On 11 May 2016, he received a message from a co-worker that nothing had changed.

[10] Mr Sassano said he was unaware that he had a right to challenge his dismissal and his organiser was going to make further inquiries. He followed this up with his organiser who did not return his calls. Eventually he made the application himself.

[11] Mr Sassano gave evidence that his father in law’s illness and subsequent death in combination with his wife’s medical treatment was traumatic for him and explained why he did not contact the union or the Commission when the organiser failed to respond.

[12] It was submitted by Metro that his ignorance of his right to bring an application and of the 21 day time limit is not unusual. I do not disagree but the question is whether Mr Sassano had a reasonable explanation for the delay. In this case he sought assistance and he did not receive it. His personal situation explained why he was not able to follow this matter up with the attention that he might otherwise have done.

[13] I am satisfied that Mr Sassano had a reasonable explanation for the delay. This weighs in favour of a finding that there are exceptional circumstances.

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

[14] Mr Sassano was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This is not a situation where Mr Sassano only doubted the genuineness of his redundancy when informed on 11 May 2016 that the new system had not been introduced. His evidence was clear. He always thought his position was not redundant.

[15] This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[16] Mr Sassano did not dispute his dismissal at the time. He sought and negotiated with Metro that he not be required to work out his notice period.

[17] This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[18] There was no evidence or submission about any prejudice to Metro. While a lack of prejudice is an insufficient basis to grant an extension of time a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[19] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”  3

[20] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 4 

[21] Mr Sassano contends because his work is being done by others, his position was not redundant. Metro submits there were a number of factors which caused it to make the decision to declare Mr Sassano’s position redundant. It gave evidence that Mr Sassano’s work had been redistributed to others and there was no intention to replace him.

[22] There was no dispute that Metro had not employed anyone else to do Mr Sassano’s job and it was currently being performed by the other return to work co-ordinator and the manager. These facts are not in dispute.

[23] That Mr Sassano’s tasks were being performed by others does not mean his position was not redundant. So much is made clear in the Explanatory Memorandum and in many decisions of the Commission.

[24] Given the lack of any factual dispute about what is occurring in the workplace, I am able to conclude that Mr Sassano’s claim, that Metro did not have operational reasons for making its decision, is unlikely to succeed.

[25] In those circumstances I consider that this criterion weighs against a finding of exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[26] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5 considered this criterion and said “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.6

[27] There were no submissions or evidence in relation to this criterion and I find it to be a neutral consideration.

Conclusion

[28] I am not satisfied that there are exceptional circumstances. While Mr Sassano has a reasonable explanation for the delay in lodging his application, his claim that this is not a genuine redundancy, is weak. None of the other criteria apart from a lack of prejudice weigh in favour of extending time.

[29] Even if I had formed the view that there were exceptional circumstances, I would not exercise my discretion to extend time because Mr Sassano’s claim, that his position was not redundant, is unlikely to succeed. Mr Sassano’s application for an extension of time is dismissed and accordingly his application is dismissed.

DEPUTY PRESIDENT

Appearances:

J. Maisano for the Applicant.

L. McIndoe for the Respondent.

Hearing details:

2016.

Melbourne:

17 June.

 1   [2011] FWAFB 975.

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 5   [2015] FWC 8885.

 6 Ibid at [29].

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