Joseph Spehar v Sarina Prestige Investments Pty Ltd
[2023] FWC 441
•23 FEBRUARY 2023
| [2023] FWC 441 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Joseph Spehar
v
SARINA PRESTIGE INVESTMENTS PTY LTD
(C2022/6546)
| DEPUTY PRESIDENT LAKE | BRISBANE, 23 FEBRUARY 2023 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.
Mr Joseph Spehar (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Sarina Prestige Investments Pty Ltd (the Respondent). The Applicant began his employment on 3 January 2000. the Applicant was dismissed on 25 July 2022. The application was lodged with the Commission on 25 September 2022.
By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. The Applicant acknowledged that he lodged his application 41 days outside the statutory time limit. To be within time, the Applicant should have lodged his application on or before 15 August 2022.
Directions were set for the filing and service of material. The Applicant filed and served their material at 5:42 p.m. on Thursday, 12 January 2023. The Respondent failed to file and serve their material by 4:00 p.m. on Friday, 20 January 2023. Despite this, the jurisdictional matter was heard at 12:15 p.m. on Wednesday, 25 January 2023.
Preliminary matters
On 25 January at 11:00 a.m., my Associate called the parties to advise that I was currently in a hearing, and we would proceed at 12:00 p.m. The Applicant confirmed his attendance. Mr Tod Sarina, the Director of the Respondent did not answer his phone, but his office informed my Associate that Mr Sarina was not in the office. My Associate asked his office to provide a better contact number for the hearing by email before 12:00 p.m. Mr Sarina’s office failed to do this. My Associate called again and was informed that Mr Sarina was on holiday and currently uncontactable. My Associate explained that Mr Sarina was required to attend, he was given formal notice on 6 January. As it was already 12:09 p.m., I would only provide for another five minutes. Mr Sarina’s office stated that he will not be in attendance. My Associate stated in that case, the hearing would proceed without him, and the Commission would be in contact.
The Respondent failed to provide notice to the Commission that they were unavailable prior to the hearing and did not provide a reason on significant grounds to my Associate for why the hearing should be adjourned. Hence, the hearing proceeded.
Was the application lodged within time?
Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.
The Applicant lodged his application on 25 September 2022. He accepts that his application was made some 41 days outside of the 21 days required under s.366(1) of the Act.
It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made. Further, the Respondent refutes the claim of the Applicant that he was dismissed.
Consideration of whether a further period should be granted
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person 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 person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
For the Applicant’s application to proceed, it is necessary for him to obtain an extension of time under s.366(2) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.366(2) of the Act.
Given that the Applicant was unrepresented at the hearing, I specifically asked him to address each of the factors set out in s.366(2) of the Act.
Summary of the evidence and submissions
The Applicant’s submissions
The Applicant’s written and oral submissions may be summarised as follows:
(a)The Applicant was unaware that there was a deadline to make an application. He sought to prosecute his claim by following up on the possibility that it was a case of genuine redundancy. Only after communicating with the Fair Work Ombudsman (Ombudsman), a law firm, and sending a letter of demand to the Respondent, did he find out about the Commission’s processes and the 21-day statutory timeframe.
(b)Regarding his dismissal and following delay, the Applicant attended work on Monday, 25 July 2022. When he walked in, Mr Sarina told the Applicant that he was forced to sack him, and it was effective immediately. Mr Sarina explained that he wanted to get out of the business and there was a management team coming to take over and purchase the business. To this date, the Applicant has not received a dismissal letter or separation certificate despite asking for one.
(c)Following dismissal on the same day the Applicant sought advice from the Ombudsman. The Ombudsman recommended that the Applicant seek legal advice. He provided a screenshot illustrating that he was in contact with the Ombudsman from 25 July 2022 to 30 November 2022.
(d)The legal advice the Applicant received suggested that his dismissal was a case of genuine redundancy. His legal representative at the time wrote a letter dated 17 August 2022 which was sent to Mr Sarina requesting a formal letter confirming his outstanding entitlements and reasons for termination. Further, there was a request for payments on redundancy, notice period, long service leave, and annual leave and superannuation. The letter was sent to Mr Sarina three times, yet he did not respond. His legal representative suggested that the Applicant take Mr Sarina to court, but the Applicant was unwilling due to the costs to prosecute his claim.
(e)On 19 September and 20 September, the Applicant sought further advice from the Ombudsman.
(f)On 25 September, he filed his application with the Commission. The reason he filed this application was that he was not prepared to sit on his hands. He has seen Mr Sarina dismiss others without proper process or procedure and get away with it.
(g)The Applicant stated that there was one other person who was dismissed on the same day as him. However, this former employee has no interest in prosecuting their claim as they are close to retirement and will be happy just receiving their entitlements.
The Respondent’s submissions
The Respondent failed to provide submissions in response to the notice of listing and failed to provide a representative or a witness at the hearing. Therefore, I rely on the Respondent’s Form F8A in response to the Applicant’s application, executed and filed by Mr Sarina on 18 November 2022.
The Form F8A did not identify any jurisdictional objection. Mr Sarina contended the Applicant’s date he commenced work with the Respondent, that the Respondent only had between one to fourteen employees, and the events that occurred on 25 July 2022. He does not elaborate or provide evidence of these contentions.
At 4.1 of the Form F8A, Mr Sarina indicates that the Applicant has been paid in full his salary, annual leave, and long service leave. He does not provide any supporting documentation for these claims.
Consideration
Reason for the delay (s.366(2)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“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.”
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.[6]
Considering the evidence given by the Applicant, the reasons provided were not exceptional. The Applicant was prosecuting his claim, but ignorance of the Commission’s processes is not an exceptional circumstance that I can have mind to. Information on the Commission and its processes is readily available online and by telephone.
Based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.
Action taken to dispute the dismissal (s.366(2)(b))
The Applicant disputed his dismissal by contacting the Ombudsman, seeking legal advice, sending a letter of demand, and launching his application with the Commission. He was awaiting a response from Mr Sarina before he took further steps to prosecute his claim.
Considering the efforts the Applicant went to, this factor does weigh in favour of an extension of time.
Prejudice to the employer (s.366(2)(c))
The Respondent made no submissions regarding prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.366(2)(d))
In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“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.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]
On an initial view of the evidence provided, there are merits to his application. The Respondent has also completely failed to respond to the claim. However, without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.366(2)(e))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]
The Applicant drew my attention to another employee who was dismissed at the same time. However, the Applicant did not provide evidence or bring this former employee as a witness. As such, I cannot give it much weight. This is ultimately a neutral factor in my determination.
Conclusion
I would be minded providing additional time to the Applicant as he was prosecuting his claim. However, as his application was filed 62 days post dismissal, an extension for an additional 41 days is beyond what I would consider reasonable in these circumstances.
Despite Mr Sarina’s complete lack of respect for the Commission and its processes, I am in a position where I must decide in favour of the Respondent.
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I Order that the application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]–[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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