Massimo Fabbri v Spotless Facility Services Pty Ltd T/A Spotless

[2014] FWC 7825

[2014] FWC 7825

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Massimo Fabbri
v
Spotless Facility Services Pty Ltd T/A Spotless
(U2014/13225)

DEPUTY PRESIDENT MCCARTHY PERTH, 4 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Massimo Fabbri (the Applicant) lodged an unfair dismissal application (the Application) on 10 October 2014 at about 12:30 pm at the Perth Registry offices of the Fair Work Commission (FWC). The Application states that the Applicant was dismissed from his employment with Spotless Facility Services Pty Ltd (the Respondent) on 16 September 2014. The Respondent disputes the date of dismissal and asserts the Applicant was dismissed on 12 September 2014. It appears that the date of dismissal was the date the Respondent asserts. Even taking the Applicant’s version of the dismissal date the Application should have been lodged by 8 October 2014. It was lodged therefore either 2 or 6 days later than is allowable.

[2] The Applicant knows that he made the Application outside the allowable time and stated in his Application that the FWC should take into account the following reasons in considering whether the Applicant should be allowed:

“My mother in law has Cancer an has been receiving treatment in hospitals. She lives in Esperance we’ve had to bring her up to Perth an stay with us. This means driving her to appointments for treatment an back home. The effects of the treatments have made her very ill and caused complications. This has been a great concern for us and focused on her welfare.

Please excuse me being 2 days late for this application my mind was with Mum.”

[3] I wrote to the Respondent on 14 October 2014 and advised them that the Application had been lodged and attached a copy of it. I also wrote to the Applicant on 14 October 2014 and requested that he provide me with information (by 5:00pm on 28 October 2014) on matters I must take into account in considering whether the Application should be allowed. The Applicant responded to that request on 27 October 2014 at 10:25 am and stated as follows:

“In response to 1.4:

1.  After 38 years in the workforce I have never been sacked so I was not aware of my legal rights or obligations.

2.  I made contact with the Electrical Trade Union to gather information, and advised them that I would commence proceedings against Spotless for Unfair Dismissal.

This date was the 22/9/14, please find attached the email to verify this  A meeting was held with a Spotless representative, myself and a Union representative on the 9/9/14.  No statements gathered or CCTV footage was presented regardless of several requested by us to have the opportunity to view this evidence, and has never been forthcoming.

3.  On the 10/10/14 a co-accused worker, Dan Bailey, who was my apprentice on site, received 3 statements, of the bar staff from the night in question.  Making these allegations from Spotless.

Dan Bailey read them out to me and they revealed so many untruths and lies that I then realised I needed to take this further, and the reasons why these allegations were made be revealed.

4.  Dan Bailey also advised me that the area manager, Bill Feeney for Spotless, had announced at a pre-start meeting in front of approximately 20 Spotless workers, that it was Spotless who made the decision to sack us.

5.  The 8 other statements from people present on the night where collected by Spotless and have not been seen.  Which possibly indicates that the client Rio Tinto also have not seen them or the CCTV footage.  It appears a one sided arrangement was orchestrated.

6.  I have since been suffering from severe depression and anxiety, and am now on medication for this, since my unfair sacking.  I am suffering financial pressure.

My mother in law has been going through a horrific battle with cancer since the 1/9/14 which has taken priority of our time, with transport to treatment and caring for her.

We have had to put our home on the market to help deal with my unexpected lose of income.

7.  These lies have set up a massive barrier for me to ever obtain employment in the future with Rio Tinto, as my reputation has been destroyed.

If I could please be granted the 2 days extension of time to have the opportunity to have my name cleared.”

[4] The Respondent lodged an Objection to the Application (the Objection) on 27 October 2014 at 11:11 am. In the Objection the Respondent gave extensive submissions on reasons why the Application should not be allowed. The Respondent also gave further submissions in response to the Applicant’s submissions. I deal with the relevant arguments of the Respondent in my considerations below.

[5] The reason the Applicant proffered for the delay was that: (i) he was unaware of his legal rights or obligations; (ii) he has been suffering from severe depression and anxiety; (iii) his mother-in-law is being treated for cancer which has taken priority with transporting her and caring for her.

[6] The Respondent in their Objection argued that the Applicant did not provide medical evidence regarding the illness and treatment requirements of either his mother-in-law or himself and suggested this “raise(s) doubt about the validity of the claims concerning the Applicant’s medical condition and that of his mother-in-law”. The Respondent also submitted in their response to the Applicant’s submissions that ignorance of his legal rights is not a reason for extending time.

[7] I agree with the Respondent that ignorance does not weigh in favour of a finding of an exceptional circumstance. I also accept that if the Applicant was intending to rely on his own medical condition that there is an obligation on him to provide some supporting documentation or evidence of his condition without it having to be expressly requested.

[8] I do not agree with the Respondent that the Applicant should provide medical or any other information regarding the condition and treatment of his mother-in-law. I cannot imagine that either the condition nor the needs and demands it creates would be something anyone would fabricate or exaggerate. I also note that the Applicant’s mother-in-law usually resides in Esperance which is over 720 kilometres by road from Perth.

[9] I also observe that the Respondent did not lodge an Employer Response to the Application and only lodged the Objection two weeks after I had sent them a copy of the Application and after the Applicant had provided his submissions regarding the extension of time he was seeking.

[10] The circumstances regarding the care of the Applicant’s mother-in-law I consider would take precedence over other matters during the period following the Applicant’s dismissal. I regard that circumstance as something unusual and consider it weighs in favour of a finding of an exceptional circumstance.

[11] I stated above that the Applicant asserts a different date of dismissal to that of the Respondent and that it was more than likely that the Respondent’s account is accurate. Whether the date of dismissal was that asserted by the Applicant or that asserted by the Respondent makes no real difference to my considerations as to when the Applicant became aware of the dismissal. I find this element of my considerations weighs against a finding of an exceptional circumstance.

[12] The Applicant asserts he sought advice from a Union when he was dismissed. There is nothing provided which suggests that he gave any instructions to that Union nor that he took any action to dispute the dismissal. I find that this element of my considerations weighs against a finding of an exceptional circumstance.

[13] The Respondent submitted that the Respondent cannot engage the Applicant because their client has withdrawn his access to the site where he was working. I do not consider this argument is relevant to my considerations regarding the allowing of the Application. I do not consider that there will be prejudice to the Respondent if the Application is allowed however I give this element of my considerations a neutral weighting.

[14] The facts concerning the merits of the Application are disputed. The Respondent asserts that the Applicant was abusive and threatening at the closing time of the tavern at the Pannawonica town site where the Applicant was employed. The Respondent submitted that when they asked for a response to the allegations that the Applicant provided a “mere denial”, presumably meaning that the Applicant did not elaborate. The Applicant doses not expressly dispute that the conduct occurred. He does dispute the evidence that the Respondent asserted they had collected and especially that he was not provided with a copy of that evidence or was able to view a CCTV of the incident. The Applicant seems to be inferring that the conduct did not occur but his main submission is directed at the evidence the Respondent has to sustain their allegation about his conduct. Given the nature or the conduct asserted, the number of people that appear to have been present and the evidence the Respondent is likely to be able to bring the merits of the Application weigh in favour of finding against an exceptional circumstance.

[15] I find that the fairness as between the Applicant and other persons in a similar position weighs neutrally.

[16] In assessing all of the matters above I consider that most weight should be given to the reason for the delay. I consider that exceptional circumstances do exist and I will allow the Application by extending the time allowed to the time when the Application was lodged.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 27 October 2014.

Respondent, 30 October 2014.

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