Joseph Farrugia v Sita Holdings Pty Ltd T/A Kastoria Bus Lines
[2024] FWC 1593
•20 JUNE 2024
| [2024] FWC 1593 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joseph Farrugia
v
Sita Holdings Pty Ltd T/A Kastoria Bus Lines
(U2024/5491)
| DEPUTY PRESIDENT BELL | MELBOURNE, 20 JUNE 2024 |
Application for an unfair dismissal remedy – extension of time application – circumstances not exceptional – application dismissed.
This decision concerns whether there are “exceptional circumstances”, so that Mr Joseph Farrugia should be permitted to file a late application for an unfair dismissal remedy. For the reasons that follow, I find that there were not “exceptional circumstances” and, for that reason, Mr Farrugia’s application for an unfair dismissal remedy must be dismissed.
On 20 May 2024, Mr Farrugia made an application to the Fair Work Commission (the Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Farrugia was a bus driver. He alleges he was unfairly dismissed by the respondent, Sita Holdings Pty Ltd trading as Kastoria Bus Lines. The respondent agrees that Mr Farrugia was dismissed from his employment but denies the dismissal was unfair.
Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. In Mr Farrugia’s Form F2, he indicated two possible dates for his dismissal – the earliest being 2 March 2024 (at Q 1.4 of his Form F2) and the latter at 26 March 2024 (at Q 2.1 of his Form F2). The employer states a later date, being 3 April 2024. On any of those dates, Mr Farrugia’s application would be out of time - by, respectively, 58 days, 34 days or 26 days. The Commission must therefore determine in the first instance whether an extension of time should be granted for the making of the application.
On 23 May 2024, I issued directions for the filing of evidence and submissions. The directions also listed the specific statutory factors that I would need to consider in any extension of time application regarding a finding of “exceptional circumstances”. Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal 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) whether the applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the applicant 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 applicant and other persons in a similar position.
As there was evidently some difficulty on Mr Farrugia’s behalf in accessing the emails sent to the email address provided in his Form F2, the directions were also sent by post on two occasions to his nominated postal address. Other documents, including the employer’s Form F3 response were also served by that method. A mention hearing was conducted on 3 June 2024, with Mr Farrugia joining by telephone, to explain the directions and to answer any relevant questions.
Shortly after the mention hearing, Mr Farrugia then personally attended the Commission’s registry office in Melbourne, where he filed a hand-annotated copy of the Directions I issued, together with a short hand-written note, setting out his hand-written responses to (among other matters) the statutory criteria for extension of time applications.
The material before me comprised the Form F2, the Form F3 (which in turn contained various correspondence, including a letter of termination of employment), and Mr Farrugia’s hand-annotated copy of the Directions referred to above. Consistent with directions often issued in extension of time matters, the employer was not required to file evidence (and did not do so), although it relied upon the documents attached to its Form F3. Mr Farrugia’s hand-annotated document was tendered without objection and he was not required for cross-examination. The tender of the employer’s letters were not objected to.
Each of the matters in s 394(3)(a)-(f) must be considered in assessing whether there are exceptional circumstances.[1] I set out my consideration of each matter below.
Date the dismissal took effect
As noted above, Mr Farrugia’s Form F2 provided two potentially alternative dates of dismissal.
In the annotated copy of the Directions filed by Mr Farrugia, he states he was dismissed “on Apr 03 – or 18 not [sure]. Did not know”.
The employer’s Form F3 attached various documents. They were:
· A letter dated 12 April 2023, titled “Written Warning”, which included a copy of a Position Description,
· A letter dated 3 August 2023, titled “Second Written Warning”,
· An email to Mr Farrugia dated 25 March 2024 titled “Notice to Show Cause Letter”, which attached a letter of the same date addressed to Mr Farrugia titled “Notice to Show Cause”, and
· An email to Mr Farrugia dated 3 April 2024 titled “Outcome – Notice to Show Cause”, which attached a letter of the same date titled “Termination of Employment”.
The copy of the Termination of Employment letter also has affixed a ‘sender to keep’ postal receipt and was annotated “Mailed. 4.4.2024”.
The Termination of Employment letter sets out various matters but, relevantly for the date that the dismissal took effect, it stated:
“As such, this letter serves as notice of the termination of your employment. Your final working day will be today, 3 April 2024, and you will be paid your notice in lieu, along with any unused but accrued annual leave entitlements.”
The letter also stated that Mr Farrugia was required to return all company property, including access passes, “immediately”.
Notwithstanding that Mr Farrugia initially stated he was not “sure” when the date the dismissal took effect, he confirmed at the determinative conference on 19 June 2024 that the dismissal took effect on 3 April 2024.
I find that the date the dismissal took effect was 3 April 2024, as reflected by the Termination of Employment letter.
Section 394(3)(a) - Reason for the delay
In order to comply with the 21-day period specified by s 394(2)(a), Mr Farrugia ought to have made his application for an unfair dismissal remedy by 24 April 2024. In the circumstances, his application was 26 days late.
The delay in s 394(3)(a) is the period commencing immediately after the 21-day period specified in s 394(2)(a) until when the dismissal application was lodged on 20 May 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2] 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.[3]
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.[4] This is because the reason for delay is a factor forming part of the overall assessment required by s 394(3).[5]
In his Form F2, Mr Farrugia states that the reason for delay was as follows:
“The question you ask me By Commission I got dismissal because approaching the 7 years also the guy who life is job. The he come back after 5 months. Later I was victim the company took my job off me and give it to him”.
In the attachment to Mr Farrugia’s annotated Directions, he wrote “The delay I had no knowledge about 21 days”.
In oral explanations given at the determinative conference, Mr Farrugia further explained that no one told him about the 21-day time period when he was dismissed, that someone should have told him about that time period, and that he also assumed his application had been approved when his fee-waiver application was approved by the Commission.
I find that the only explicable reason given for delay is ignorance of the 21-day period. I do not consider that Mr Farrugia’s ignorance of, or unawareness about, the statutory timeframes for commencing an unfair dismissal application is a factor that points to a conclusion of exceptional circumstances. This is a circumstance shared by many applicants before the Fair Work Commission.
Mere ignorance of the statutory time limit is not an exceptional circumstance.[6]
I conclude that the reasons proffered for a delay are a factor pointing against a finding of exceptional circumstances for the purposes of s 394(3).
Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?
As confirmed at the determinative conference, there is now no dispute that the dismissal took effect on 3 April 2024. I have found that Mr Farrugia was notified of the dismissal on 3 April 2024, being the same day it took effect. Even if Mr Farrugia did not notice the email copy of Letter of Termination, there is no evidence to suggest that he was otherwise unaware of the immediate effect of his dismissal at the time. Therefore, he had the benefit of the full period of 21 days to lodge the unfair dismissal application.
I do not consider these are circumstances supportive of an overall finding of exceptional circumstances.
Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[7]
Mr Farrugia’s annotated Directions state in response to the paragraphs referring to “action taken” to dispute the dismissal “No” and, later, “Between April 03 or 18, not sure. No action at all.” Other than lodging his unfair dismissal application, I find that Mr Farrugia took no action to dispute the dismissal.
I do not consider that these factors are supportive of a finding of exceptional circumstances.
Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?
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.
In Jovcic v Coopers Brewery Limited [2023] FCA 797, Besanko J stated that “The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.” While his Honour’s observations were made in the context of an application to extend time for an appeal (in which exceptional circumstances were not required), I nonetheless consider that they are generally informative for an application to extend time under s 394.
The mere absence of prejudice is not, of itself, a matter supportive of a conclusion that exceptional circumstances exist such that time should be extended. I do not consider that this factor is supportive of a finding of exceptional circumstances but neither does it point against it. I treat the factor neutrally.
Section 394(3)(e) - What are the merits of the application?
The most comprehensive explanation given by Mr Farrugia that could explain his position regarding the reasons for his dismissal are set out above in paragraph [20]. His Form F2 also advances broader grounds that would arguably support an unfair dismissal application, such as the harshness of the dismissal having regard to his personal circumstances (for example, his loss of job, inability to find another, his forfeiting pending long service leave accruals which would reach the ‘seven year’ mark the following year, and his financial position). He also appears to assert that he did not receive any documents about his dismissal, which I understand to be a reference regarding procedural fairness.
The employer’s material, at least as reflected by the show cause letter, contains greater detail as to the reasons for Mr Farrugia’s dismissal. That letter sets out a short summary of the matters that led to the second written warning on 3 August 2023 and then states:
“Current Concerns
Despite prior interventions, your conduct has continued to fall short of expectations. The incidents outlined below have occurred since the issuance of your second and final warning:
· In October 2023, the Company received a complaint from a member of the public alleging erratic driving behaviour and unprofessional conduct on your part.
· In November 2023, you were formally counselled for incorrectly marking student names on the attendance register.
· In December 2023, you repeatedly failed to follow reasonable and lawful directions regarding depot access prior to your start time, despite clear instructions provided in a Company-wide memo dated December 4, 2023. Despite individual counselling sessions on December 5 and 8, 2023, this behaviour persisted.
· Most recently, the Company received several concerns from other staff members regarding your conduct, specifically alleging the spread of rumours or gossip about colleagues. It is noted that these complaints were unrelated to a single incident, and there is no evidence suggesting their connection.
· Additionally, on March 7, 2024, you lodged what the Company deems to be a malicious complaint against Dom Sita. You accused Dom of stalking and spying on you during and outside of work hours, which was formally addressed the same day. The allegations were categorically denied, and it was observed that your claims lacked factual evidence, posing a significant risk to someone’s reputation. Furthermore, you failed to follow the formal grievance process by raising the matter directly with the Receptionist.”
On the limited material before me, it appears that each side has a differing version of the events leading to the termination of the employment. Having considered the nature of the allegations, as described in the parties’ respective material filed with the Commission, I am satisfied that the resolution of the parties’ competing positions would require findings of fact about specific incidents involving more than one witness.
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)”[8] and the same applies to s 394(3)(e).
Nonetheless, Mr Farrugia does not appear to have advanced any compelling positive narrative to show why his dismissal was unfair. While I am prepared to grant some degree of latitude to the stage of the proceeding and that Mr Farrugia is self-represented, I am unable to conclude that the prospects of Mr Farrugia’s application are better than weak on the material before me. For the purpose of this application, I consider that the merits of the claim is a matter to be treated as a factor pointing against a finding of exceptional circumstances, although not strongly so.
Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position
Neither party raised any matter before me to indicate any issue of fairness between Mr Farrugia and other persons in a similar position.
For the purpose of this application, I consider that this is a matter to be treated neutrally.
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 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.[9] 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.[10]
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, it is a question of degree and insight. [11]
I have set out my findings for each of the factors in s 394(a) – (f) above.
When having regard to all of the matters listed at s 394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[12] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
J Farrugia on his own behalf
H Dunlop of Human Resources Aligned for the Respondent
Determinative conference details:
2024.
Melbourne:
June 19.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[12] PR776161.
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