Lino Maglione v Tergeste Pty Ltd T/A San Giusto deli+cafe

[2020] FWC 5458

[2020] FWC 5458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lino Maglione
v
Tergeste Pty Ltd T/A San Giusto deli+cafe
(U2020/12434)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 OCTOBER 2020

Application for unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed.

[1] On 16 September 2020, Mr Lino Maglione made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Maglione’s unfair dismissal application is Tergeste Pty Ltd T/A San Giusto deli+café.

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Maglione recorded that the unfair dismissal application was not made within 21 calendar days of his dismissal taking effect. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3).

[3] I therefore conducted a Determinative Conference on 9 October 2020 to consider Mr Maglione’s application for an extension of time for the filing of the unfair dismissal application. Mr Maglione appeared and gave evidence while the Respondent was represented by its sole director, Mr David Adamowicz. The common position of the parties at the Determinative Conference was that Mr Maglione was notified of his dismissal on 3 July 2020 and that it took effect that same day. Having been made on 16 September 2020, Mr Maglione’s unfair dismissal application was therefore filed 54 days late.

Legislation

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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. 1 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.2

[5] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[6] 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. I now consider these matters in the context of the application.

Reason for the delay

[7] The Act does not specify what reason for delay might tell 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 of the circumstances must be considered. 3

[8] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 4

[9] The background to this matter is that the Respondent operated a café. Before becoming an employee, Mr Maglione was formerly a director of the Respondent and in business with Mr Adamowicz. Mr Maglione appears also to have been a guarantor in relation to the Respondent’s commercial tenancy and various equipment leases. By the time of the dismissal, the Respondent seems to have accumulated debts in the vicinity of $180,000.00. Debts were owed to two finance companies, the Respondent’s landlord, the ATO and employees of the Respondent (for superannuation). The Respondent had been forced to cease operating the café on or about 24 March 2020 due to the impacts of COVID-19 and had become eligible for JobKeeper payments.

[10] It would seem that by the end of June 2020, Mr Maglione and Mr Adamowicz were embroiled in a dispute about liability for the Respondent’s debts and the way in which these might be met. The parties became entrenched in their respective positions and by 3 July 2020, Mr Maglione’s employment had been terminated by the Respondent with immediate effect. Mr Maglione claims that in the days and weeks that followed, Mr Adamowicz would not respond to his attempts to make contact, such that he engaged a lawyer to act on his behalf. Mr Maglione’s lawyer sent a letter of demand to Mr Adamowicz dated 22 July 2020 claiming payment for superannuation and entitlements. This was met with a letter in response from Mr Adamowicz dated 28 July 2020 outlining what he considered to be Mr Maglione’s responsibilities and obligations as a former director of the Respondent.

[11] There appears to have been no correspondence in reply to this letter until an emailed response by Mr Maglione’s lawyer on 12 August 2020. In this email, Mr Maglione’s lawyer advised that Mr Maglione had made contact with the Fair Work Ombudsman (FWO). Mr Maglione said this contact occurred on 7 August 2020, when he sought assistance in relation to the recovery of Job Keeper payments. The 12 August 2020 email prompted some initial dialogue between Mr Adamowicz and Mr Maglione’s lawyer. Mr Adamowicz says that he proposed that if Mr Maglione agreed to make a contribution towards the debts of the Respondent and withdraw his FWO complaint, the parties could discuss reinstatement but that his proposition was rejected. Mr Maglione said the FWO officer dealing with his complaint against the Respondent attempted to facilitate a conference between Mr Maglione and Mr Adamowicz but it had to be cancelled because Mr Adamowicz did not attend.

[12] Mr Maglione said he continued corresponding with the FWO officer during August 2020 but says it was not until 3 September 2020 that he was advised by her that he should make an unfair dismissal application. He also says it was at this time that he became aware, through the FWO officer, that there was a 21-day time limit and that he was already late. Mr Maglione alleges the FWO officer told him he had a strong case and encouraged him to make a claim. The FWO officer sent Mr Maglione some material by email on 3 September 2020 which provided information regarding the making of a general protections dismissal application, although it did point out that for such claims, there was a 21-day time limit for lodgment.

[13] Mr Maglione said he then wanted to get some legal advice. When I put it to Mr Maglione that this seemed to take some time, he said this was because his lawyer was busy and could not meet with him until approximately 14 September 2020. When I asked Mr Maglione whether he told his lawyer that his application would be late, he said he had done so and he also stated that his lawyer does not practice in the unfair dismissal jurisdiction.

[14] I do not consider there were any circumstances within the 21-day period prescribed for making an application that had any bearing on the 54-day period of delay from 25 July 2020 to 16 September 2020. Mr Maglione retained a lawyer during that time and a letter of demand dated 22 July 2020 was prepared and sent. This letter appears to have outlined claims for various payments and the claim for JobKeeper payments was predicated on Mr Maglione being employed but nowhere amongst the contents the letter of demand dated 22 July 2020 was a potential unfair dismissal claim raised.

[15] Nor do I consider there was an acceptable or reasonable explanation for the 54-day delay from 25 July 2020 to 16 September 2020. It is evident that Mr Maglione spent a considerable period from the time of his termination of his employment until 3 September 2020 seeking JobKeeper and other payments from the Respondent and by the time Mr Maglione began to consider making an unfair dismissal application upon receipt of the advice from the FWO officer on 3 September 2020, he was already 41 days out of time. Mr Maglione’s focus on receiving various payments on an unconditional basis had remained unchanged until then and it appears he rejected an offer to be reinstated because he did not agree with the terms associated with it.

[16] As to the period up until 3 September 2020, it was Mr Maglione’s choice to seek advice from various sources and to ultimately proceed the way he did until then. Not receiving advice relating to the making of an unfair dismissal application from the FWO or his lawyer before 3 September 2020 did not preclude Mr Maglione from conducting his own research. Unfair dismissal applications can be made without legal or other professional advice by reference, for example, to the Commission’s website material designed to assist members of the public to prepare and lodge applications. It is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed. 5 I also do not consider there is an acceptable or reasonable explanation for the delay from 3 September 2020 until 16 September 2020. From 3 September 2020 on, Mr Maglione knew that if he made a claim, it would be late and yet he elected to wait until his lawyer said he would be available, instead of taking action himself. This was in circumstances in which he had been armed with the links to information that had been provided by the FWO and could conceivably have done so in a more expeditious manner.

[17] The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances and I do not consider that Mr Maglione’s explanations outlined above, individually or collectively, provide an acceptable or reasonable explanation for the delay. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.

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

[18] I am satisfied that Mr Maglione was aware he had been dismissed effective 3 July 2020 and had the full period of 21 days to lodge his application. This is therefore a neutral consideration.

Action taken to dispute the dismissal

[19] As above, Mr Maglione retained a lawyer and sought restoration of JobKeeper payments and the payment of other entitlements. He also attempted to meet with Mr Adamowicz. Mr Maglione also made contact with the FWO, however this was initially only in the context of attempting to obtain his unpaid entitlements rather than action taken to dispute the dismissal, even if it was ultimately advice from the FWO officer that set Mr Maglione on the path of filing the unfair dismissal application.

[20] I accept Mr Maglione’s evidence that he attempted to contact Mr Adamowicz without success and am satisfied he was challenging the basis for his dismissal. However, in all the circumstances of this matter, this factor weighs only marginally in favour of a finding that there are exceptional circumstances.

Prejudice to the employer

[21] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. I do not consider the mere absence of prejudice as a factor that would point in favour of granting an extension of time. It is a neutral factor. Some decisions of the Commission take a different view and have held that the absence of prejudice weighs in favour of an extension. Even if I was to adopt this approach, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[22] I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

[23] Mr Maglione says his dismissal was unfair as the decision was made unilaterally, without notice and on grounds that are unlawful in that the Respondent requested payments from him which were not due or owing, with an ultimatum that if those payments were not made, his employment would be terminated and that he would be removed from the JobKeeper program.

[24] Mr Adamowicz says there was no work for Mr Maglione and the business was not operating at the time of Mr Maglione’s dismissal, its trading having ceased due to COVID-19 on 24 March 2020. Moreover, he said the business was “over” by 29 June 2020 when the Respondent’s landlord terminated its lease of the business premises.

[25] The weight to be given to this merits consideration is dependent on the extent to which there is merit in the substantive application. 6 While the Respondent purported to terminate Mr Maglione’s employment due to a lack of work, the termination occurred in circumstances where Mr Maglione and Mr Adamowicz were in dispute about liability for company debts and Mr Adamowicz had stated to Mr Maglione that if he did not agree to follow his action plan, he would ‘un-enrol’ him from the JobKeeper program. I am therefore satisfied that Mr Maglione’s unfair dismissal application is of sufficient merit so as to weigh in favour of a finding of exceptional circumstances

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

[26] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[27] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[28] Having regard to and weighed all the matters I am required to take into account under s.394(3), and all of the matters raised by Mr Maglione, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Mr Maglione’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

L Maglione for himself.
D Adamowicz for the Respondent.

Hearing details:

2020.
Melbourne (via Microsoft Teams):
October 9.

Printed by authority of the Commonwealth Government Printer

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 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   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

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

 6   Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].