John Cicciari v Metro Quarry Group Pty Ltd

[2016] FWC 1779

[2016] FWC 1779

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

John Cicciari
v
Metro Quarry Group Pty Ltd
(U2015/17174)

COMMISSIONER WILSON MELBOURNE, 22 MARCH 2016

Application for relief from unfair dismissal - extension of time.

[1] This matter concerns an application made by John Cicciari alleging unfair dismissal against his former employer, Metro Quarry Group Pty Ltd. Mr Cicciari’s application to the Fair Work Commission was first received in the Commission on 30 December 2015.

[2] While Mr Cicciari’s unfair dismissal application refers to it being an action against “Toorardin Garden supplies/Metro Quarry Group trading as TGS”, the name of the Respondent has been amended by me to Metro Quarry Group Pty Ltd, pursuant to s.586(a) of the Fair Work Act 2009 (the Act), and with the consent of the parties in the course of the hearing of the extension of time question associated with this matter.

[3] Section 394(2) of the Act requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Both parties put forward a termination of employment date of 27 November 2015. It is apparent from the dates referred to above that the application is therefore 12 days out of time.

[4] In this decision, I have considered whether an extension of time should be granted to Mr Cicciari for the making of his application, and for the reasons set out below, I am not satisfied that a further period should be allowed for the making of his application.

[5] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[6] Metro Quarry Group objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[7] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Mr Cicciari, the Applicant, and the submissions made by the solicitor for Metro Quarry Group, Mr Chao Ni, who was granted permission for appearance by me, for reason that I was satisfied his appearance would assist with the efficient conduct of this matter, taking into account its complexity (see s.596(2)(a) of the Act).

Background

[8] Mr Cicciari’s employment with Metro Quarry Group started in October 2014, with his initial employment being on a casual basis. That status changed not long before his dismissal when the basis of his employment moved to a permanent night shift arrangement.

[9] There is no dispute about the reason given for Mr Cicciari’s dismissal, with the parties agreeing that it came about as a result of him failing a urine drug screen which had been reported on 23 November 2015. Despite agreeing that this precipitated his dismissal, Mr Cicciari is critical of the fact that the screening results were reported to the company on 23 November and that it took until 27 November for him to be dismissed.

[10] Mr Cicciari was dismissed at the end of the night shift he had been working on 27 November 2015. At about 6:00 or 6:30 AM he had received a text message to go and see a manager, John Allen. When he went to see that person, he was told that he was being dismissed and that it was because he had failed his medical and that he was expected to hand his keys over and to leave and not return.

[11] Understandably, Mr Cicciari was shocked about the circumstance, and not long after he left he rang his partner in his car to let her know what had occurred. Later, he went to meet with his father, who also worked for the company. Both were concerned about the situation and how he came to be dismissed. His partner in particular indicated to him that there should have been a greater process followed by his employer and that she felt the circumstance was wrong. Mr Cicciari related in evidence that he had been told he should have been offered counselling about the result, and that it did not seem the company’s policies and procedures had been applied.

[12] Mr Cicciari’s evidence is that he also spoke to someone about getting an unfair dismissal form and that he rang the Fair Work Commission on the subject, although he did not put forward a precise date when that may have occurred.

[13] The unfair dismissal form lodged in the Commission was apparently signed by him on 23 December 2015 but it was not received in the Fair Work Commission until 30 December 2015.

[14] Mr Cicciari is not precise about when or how he first received the form or how long he had been contemplating making an unfair dismissal application. Mr Cicciari’s evidence is that he only learned about the 21 day time limit after the deadline had passed, and that this came about when the Commission had alerted him to the fact that his application was apparently lodged outside of the time period allowed.

[15] Having been dismissed on 27 November 2015, the last day an unfair dismissal application could be lodged for it to be within time would have been Friday, 18 December 2015.

Legislation

[16] For the purposes of s.396 of the Act, Mr Cicciari is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances.

[17] In considering whether an extension of time should be granted to Mr Cicciari, I am required to consider all of the criteria in s.394, which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[18] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 3 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.4 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.5

[19] There is no particular reason put forward by Mr Cicciari as to why his application is late, with his best evidence being that it was signed and returned by him on or around 23 December 2015. However, his evidence on the subject is imprecise.

[20] Given the time of year, and the public holidays that occur during that period, it is possible that an application posted on 23 December 2015 may well have taken the best part of the period until 30 December for it to be received by the Commission.

[21] That situation in itself is unexceptional, and not a satisfactory reason for the delay, since parties who rely upon the post, or in fact any method of transmission of their application to the Commission, are expected to take into account factors such as these.

[22] Further, I note that the period of delay after 18 December 2015, being the last day on which an application could have been made within time, is not the subject of any particular explanation advanced by Mr Cicciari.

[23] In the circumstances I find that the reason for the delay is Mr Cicciari’s inattention to the need to challenge his dismissal within the allowed time period, had that been what he wished to do.

[24] As a result of this circumstance I consider an acceptable reason has not been put forward for the delay in Mr Cicciari making an unfair dismissal application. Accordingly this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.

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

[25] As set out above, I am satisfied that Mr Cicciari first became aware of the termination of his employment when he was dismissed at the end of his shift on 27 November 2015. This is therefore not a circumstance where Mr Cicciari only became aware of his termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[26] Mr Cicciari’s evidence about the actions taken by him to dispute his termination of employment is that it consists entirely of making the application for unfair dismissal to the Commission.

[27] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

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

[28] The delay in the filing of the application is 12 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[29] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 6

[30] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[31] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[32] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 7

[33] The merits of the application to which Mr Cicciari points appeared largely confined to his contention that the employer acted unfairly by holding back for a few days the report of his failed drug screen. Despite that argument being advanced, no evidence is put forward on the subject, other than Mr Cicciari’s uncorroborated contention. In some respects this is an argument on Mr Cicciari’s part that, if his allegation is true, Metro Quarry Group had somehow condoned the continued employment of a person they ultimately dismissed for misconduct, for reason of contravention of its policies, demonstrated by a failed drug test.

[34] In the circumstances, I consider it to be unlikely that were the matter to proceed to a full hearing that the contention of condonance Mr Cicciari puts forward would be established, together with the consequential need to establish that such action on the part of the Respondent amounted to unfairness sufficient to cause a finding that he had been unfairly dismissed.

[35] In the circumstances I consider this matter resolves against the interests of Mr Cicciari.

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

[36] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 8

[37] In applying the facts of Mr Cicciari’s matter to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that there had been some process of diligent inquiry or dispute by him not long after the dismissal. However, this was not the situation. Accordingly, consideration of this criterion also resolves against the Applicant.

[38] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making his unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period to Mr Cicciari for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of his case but also to the criteria set out within s.394(3) of the Act.

[39] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Fair

Work Act and will issue an order dismissing Mr Cicciari’s application as being out of time.

COMMISSIONER

Appearances:

Mr J Cicciari on his own behalf

Mr C Ni (MST Lawyers) for Metro Quarry Group Pty Ltd

Hearing details:

2016.

Melbourne (by telephone):

10 March.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 4   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 5   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 6   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 7   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 8   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

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