Julian Brusaschi v Sun-Bar Pty Ltd

[2020] FWC 3455

[2020] FWC 3455

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julian Brusaschi
v
Sun-Bar Pty Ltd
(U2020/8398)

COMMISSIONER LEE MELBOURNE, 2 JULY 2020

Application for an unfair dismissal remedy - request for an extension of time - application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 24 June 2020.

[2] This is an application for unfair dismissal remedy that has been made by Mr Brusaschi (the Applicant). The Applicant commenced employment with Sun-Bar Pty Ltd trading as Sunset Strip Service Centre (the Respondent) on or about 23 February 2009 and he was employed in the position of a motor mechanic/auto technician.

[3] In terms of reasons given by the Respondent for the decision to terminate the Applicant’s employment, it is apparent on the evidence that the Applicant resigned his employment – that is on his own evidence – but he maintains that he was forced to do so because of the conduct of the employer and, in that context, it was a termination at the initiative of the employer.

[4] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act (the Act). That application was lodged on 18 June 2020. The application was filed outside the statutory time frame. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The Applicant’s employment was terminated by the Respondent with effect from 25 May 2020 and, based on the termination date taking effect on 25 May 2020, the application for a remedy should have been lodged by no later than 15 June 2020. As the application was lodged on 18 June 2020, it was therefore lodged outside the time prescribed. The application was made, in effect, three days after the last date on which it should have been made.

[5] The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied there are exceptional circumstances.

[6] Before dealing with the evidence, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion. The matters I need to take into account in considering whether or not I am satisfied there are exceptional circumstances are:

(a) the reason for the delay;

(b) whether the Applicant first became aware of the dismissal after the date it took effect;

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

(d) prejudice to the Respondent, including prejudice caused by the delay;

(e) the merits of the application; and

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

[7] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether, collectively, the matters show exceptional circumstances. 1

[8] 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 or unprecedented, nor do they need to be very rare. 2 I must be satisfied that, taking into account s.394(3), there are exceptional circumstances. I will now consider those matters in the context of this application.

[9] Firstly, the reason for the delay. The Act does not stipulate what reason for the delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour. However, all the circumstances must be considered. 3

[10] In this matter, in asserting the reason for the delay, the Applicant set out that in the time period up until his dismissal, he was required to take periods of leave, that on 18 May 2020, after he was told to take another week off, he suggested it was “in our interests to part company”, on 25 May 2020, he called before work to check if he was needed and was told a colleague had passed away and that Phil, that is Mr Davis, and he agreed to end his employment and he thought he would get long service leave for the notice period, et cetera, and “I went to work to collect my tools” and then there were queries about the amount of pay he should be paid.

[11] The Applicant says:

“This application is late because of the impact this has had on me, the effect of losing a colleague, and not understanding this could be unfair dismissal until I looked on the Fair Work website to enquire about how to get my leave entitlements paid.”

[12] In the statement that was supplied in response to the Directions set by Deputy President Mansini, the Applicant also said in respect to the reason for the delay:

“I have never been provided a Fair Work Information Statement during my 11 years of employment and was unaware I had 21 days to lodge an unfair dismissal claim.”

[13] Taking into account those reasons and taking into account what the Applicant said today, it became apparent that the Applicant was making enquiries about how to pursue the unpaid entitlements that he complains he has not been paid and during the course of those enquiries, was advised that he would have a case for unfair dismissal, presumably on the basis of constructive dismissal. In essence, the Applicant was unaware of the 21-day time period. Generally, a lack of awareness of the statutory time period is not an acceptable reason. 4

[14] I note the complaint of the Applicant that the Fair Work Information Statement was not provided to him. However, that is a statement that is required to be given to new employees and that requirement appears to have taken effect in January 2010, well after the Applicant started work. In any case, whether that is accurate or not, ignorance of the time frame has been generally held by the Commission to not be an acceptable reason.

[15] As to the other reasons that are cited in the Form F2, including the effect of losing a colleague and the impact, there is no specificity to that and I am not satisfied that they are acceptable reasons. Essentially, this is a case where the Applicant has become aware that he potentially has a remedy after the time that the statutory period has expired.

[16] In the circumstances, I am not satisfied the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

[17] Whether the Applicant first became aware of the dismissal after the date it took effect. Turning again to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant, on his own evidence, resigned on 25 May 2020. His position, of course, is that he had no choice but resign, but, in any case, he was well aware that the termination took effect on that date. There was some notion that his employment would continue through the notice period on the JobKeeper arrangement, but, in any event, that did not occur and it is the Applicant’s position that the employment ended on 25 May 2020. In the circumstances, there is nothing that arises from that which would impact on the consideration as to whether or not I grant an extension of time and I consider that factor to be neutral.

[18] Turning next to the question of the action taken by the Applicant to dispute his dismissal, the evidence of the Applicant on that point was that:

“Due to a history of intimidating behaviour and a breakdown in my relationship with Phil Davis, I have not taken action to resolve this dispute until now.”

[19] Essentially, evidence is given that there are reasons that the Applicant did not take any action, but the fact remains no action was taken and, on the Applicant’s evidence, no action was taken because the Applicant did not have a view up until he received advice that he potentially had access to take action. In any case, no action was taken. That is a factor that weighs against the Applicant taking into account that matter.

[20] The Respondent did make some submissions in terms of prejudice. It is not a long period of delay. I am not satisfied that there is any prejudice to the employer. The Applicant disputed that there would be any prejudice to the employer. In the circumstances, that is a matter that I would consider as being neutral in the circumstances of this matter.

[21] As to the merits of the application, in cases such as this where the substantial merits of an application are not fully examined into or agitated, it is appropriate I make an assessment about the merits of the case. Based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable, it is clearly going to be heavily contested based on the evidence of both Mr Davis and the Applicant today, which is entirely contradictory about the nature of the way the employment was conducted while the Applicant was there as to whether or not the termination was at the initiative of the employer. It could be a dismissal that arose because of a course of conduct of the employer related to the claim of the employer not observing COVID-19 restrictions, engaging in bullying behaviour and other related alleged behaviours, all of which are vigorously denied by Mr Davis.

[22] Whether or not a resignation is a forced resignation depends on the facts in a particular matter. It does turn on whether or not there was no other option for the Applicant. In the circumstances where I am not in a position to make determinations about the merits, it is not possible to rate the merits of this particular matter as being without merit. That is not a suggestion it would succeed, but there is at least some merit which would give the Applicant a justifiable reason to pursue his claim, although that has to be judged against - it is often a difficult task to make good a claim that the Applicant had no choice but to resign. In the circumstances, having considered that matter, it is a matter that I could not elevate beyond being a neutral consideration.

[23] In terms of fairness as between the Applicant and other persons in a similar position, neither party put any submissions on this issue nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case or where the Commission granted an extension of time or found exceptional circumstances on facts that are similar to the facts before me. Consequently, that matter is a neutral consideration in the present circumstances.

[24] In conclusion, statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise, except in exceptional circumstances, the right to bring the action will be lost. A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances the Commission will consider whether to allow a further period.

[25] Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3), I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period.

[26] As I have indicated, a consideration of the reason for the delay weighs against extending the period; the consideration of whether the Applicant first became aware of the dismissal is neutral; the lack of action by the Applicant to dispute the dismissal weighs against; prejudice is neutral; a consideration of the merits is also neutral and, similarly, in terms of fairness, that is also a neutral consideration.

[27] Essentially, there are factors that weigh against a consideration as to whether to exercise the discretion and there are no factors weighing in favour and, therefore, in those circumstances, as I have indicated, I am not satisfied there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application.

[28] The extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed and an order to that effect was separately issued in PR720495.

COMMISSIONER

Appearances:

J Brusaschi on behalf of himself
P Davis on behalf of the Respondent

Hearing details:

2020.
Melbourne (by telephone).
24 June.

Printed by authority of the Commonwealth Government Printer

<PR720656>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 4   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]