Joseph Demaria v SG and Et Snowdon T/A Meriben Park

[2015] FWC 7781

[2015] FWC 7781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Demaria
v
SG & ET Snowdon T/A Meriben Park
(U2015/13410)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Joseph Demaria alleged that the termination of his employment by SG & ET Snowden T/A Meriben Park on 31 July 2015 was unfair.

[2] His unfair dismissal application lodged on 5 October 2015 was not made within 21 days of the date of the dismissal.

[3] The 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 Demaria said that he did not lodge his application form because he had a workers compensation claim on foot and he thought he was still employed. It was his evidence that the workers compensation claim was resolved on 22 August 2015 but he was still paid until September 2015. He said he felt very let down by the dismissal as he did not know he was going to leave the farm. He submitted that he was not well educated. Mr Demaria’s application though signed on 25 August 2015 was not posted until 30 September and was not lodged with the Commission until 5 October 2015. No explanation was provided for this delay.

[6] I am not satisfied that Mr Demaria has a reasonable explanation for the whole of the delay. Even if I accepted that it was reasonable for him to wait until his workers compensation claim was resolved which I do not, there was no explanation about why after that was resolved the application was not promptly lodged. The Australia Post tracking information discloses that the form was not received by Australia Post until 30 September.

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

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

[8] Mr Demaria was aware of the dismissal when it took effect and had the full 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

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

[9] Mr Demaria said he did not do anything to dispute the dismissal when it occurred. This weighs against a finding that there are exceptional circumstances.

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

[10] Mr Snowden gave evidence that the partnership that employed Mr Demaria had been wound up and if he had to go through the process it would be stressful. I consider this criterion to be neutral.

(e) the merits of the application;

[11] Mr Snowden disputed that Mr Demaria was an employee. It was his evidence that he had a contract with the JJ and NJ Demaria (ABN 26143266364) which was paid $11,000 per calendar month (inclusive of GST) from October 2012 to manage the farm. Included in the contract package were a house, power and milk. It was his evidence that the contract price was $165,145 (inclusive of GST).

[12] It was his evidence that he terminated the contract because the partnership entered into an agreement with his sons to take over the management of farm and entered into a succession plan. It was his evidence that the farm was on the market the entire time Mr Demaria was engaged and it did not come off the market until 1 June 2015. Mr Snowden gave evidence that he received an offer to buy the farm on 29 May 2015. After discussing it with his sons it was decided that they would take over the farm via a succession plan. As a result he told Mr Demaria on 1 June 2015 that this was going to occur and that he would be terminating Mr and Mrs Demaria’s contract. An email was sent which Mr Demaria said was received on 7 July 2015 advising that they would finish up on 31 July 2015. The partnership which employed Mr Demaria has been wound up.

[13] If Mr Demaria was an employee Mr Snowden submitted that the termination of his employment was a genuine redundancy.

[14] He further submitted that Mr Demaria earned more than the high income threshold, and the business was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[15] Mr Demaria submitted that he was an employee. He said there was never any discussion about him being a contractor nor was he ever asked about GST. Mr Demaria submitted that he had no notice that the farm was going to be sold. He understood that in 2014 it had been agreed by the family that a 10 year plan would be put in place and that he and his wife had ongoing employment.

[16] It was his evidence that if he had known his job was not safe he would have accepted other work.

[17] There is clearly a factual difference between the parties about Mr Demaria’s employment status.

[18] A decision to hand over the management of the farm to his sons may constitute operational reasons for the dismissal. The succession plan is not in evidence before me. Mr Snowden did not explain the nature of the agreement between him and his sons and whether he will remain an owner of the business. He was clear however that he was not employing his sons. There were no submissions put that a modern award applied to the work. It is therefore not clear if the partnership was obliged to consult with Mr Demaria once the decision had been made.

[19] I am not able to make any assessment of the merits of this matter as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[20] No relevant submissions were made on this criterion.

Conclusion

[21] I am not satisfied that there are exceptional circumstances. Mr Demaria has not provided a reasonable explanation for the delay. This is not a case where the merits of the case are such as to outweigh the lack of a reasonable explanation for the delay. No other factor weighs in favour of a finding of exceptional circumstances. Accordingly Mr Demaria’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

J Demaria on his own behalf.

S Snowdon on behalf of the Respondent.

Hearing details:

2015.

Melbourne via telephone:

10 November.

 1   [2011] FWAFB 975

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