Marco Paladini v AC and AJ Williams T/A Seasons and the Spanish Bar and Grill

[2014] FWC 6805

[2014] FWC 6805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marco Paladini
v
AC and AJ Williams T/A Seasons and the Spanish Bar and Grill
(U2014/8836)

DEPUTY PRESIDENT SMITH MELBOURNE, 30 SEPTEMBER 2014

Application for relief from unfair dismissal - jurisdictional objection - out of time.

[1] Mr Marco Paladini had his employment terminated with AC and AJ Williams T/A Seasons and the Spanish Bar and Grill (Seasons) on 30 October 2012. Mr Paladini argues that it was a constructive dismissal but Seasons states that it dismissed Mr Paladini.

[2] On 19 August 2014, Mr Paladini made an application for an unfair dismissal remedy. Given the application was out of time an extension of time was sought. This is opposed by Seasons.

[3] Section 394 of the Fair Work Act 2009 (the Act) provides:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) any action taken by the person 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 person and other persons in a similar position.

[4] It is plain that the application exceeds the 21 day period although at the time it was a 14 day period. Therefore attention is given to the terms of s.394(3). It is to those statutory criteria to which I now turn.

The reason for the delay

[5] Mr Paladini was engaged by Seasons under a Regional Migration Scheme Subclass 119/857 Visa as a Pastry Chef and Chef. In a letter to Seasons, which appears to have been sent on the day of his termination, Mr Paladini advises that unless certain conditions are met then Fair Work Australia would be notified. Mr Paladini is Italian and has limited proficiency in English. At the time of his termination of employment (however described) it is clear that he contemplated lodging an application but, he submits, was persuaded against such a course because it would impact upon his immigration status.

[6] Mr Paladini has now lodged the application because the Department of Immigration and Border Protection has now discovered that the terms of his Visa no longer apply. Mr Paladini argues that he needs to challenge the dismissal because of the very serious consequences of being deported and not being permitted to re-enter Australia for a significant period of time. It is the very serious consequences of this action which, it is argued, constitutes exceptional circumstances.

[7] It appears to me that the reason for delay is based upon the desire of Mr Paladini to stay in Australia in a manner which was inconsistent with his Visa. This is indeed exceptional but not exceptional in the context of the Act. It cannot be that conduct which is known to be inconsistent with the terms of a Visa could constitute a reason for which the Commission could regard as appropriate for the grant of an extension of time.

[8] Exceptional circumstances cannot be grounded in such conduct.

[9] In reaching this conclusion I have had regard to the age of the applicant, his limited English and what was said to be the advice he received from to be a community leader in Mildura.

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

[10] However the termination of employment is described, there is no issue as to the date on which it took place.

Any action taken by the person to dispute the dismissal.

[11] Other than the letter, to which I have referred, there was no action taken until the Department of Immigration and Border Protection took action over the Visa status.

Prejudice to the employer (including prejudice caused by the delay)

[12] Given the effluxion of time I find that there would be prejudice to the employer as memories fade.

The merits of the application

[13] This matter may have merit although much would turn on the resolution of the evidence. I would make a neutral finding in this regard.

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

[14] I see no issue arising in relation to this test where there is a deliberate act to avoid scrutiny of visa conditions would give rise to fairness as between the person and other persons in a similar position.

[15] I find that the there are no exceptional circumstances which would warrant the granting of an extension of time and the application is dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S. Corsi for the Applicant.

T. Wolff for the Respondents.

Hearing details:

2014.

Mildura and Melbourne (Skype):

September 23.

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