Mr Anthony Inguanti v Tru Energy trading as Tru Energy Iona Gas Plant

[2011] FWA 4039

Note: An appeal pursuant to s.604 (C2011/5287) was lodged against this decision - refer to Full Bench decision dated 26 September 2011 [[2011] FWAFB 6512] for result of appeal.

[2011] FWA 4039

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Mr Anthony Inguanti
v
Tru Energy trading as Tru Energy Iona Gas Plant
(U2011/5989)

COMMISSIONER SMITH CANBERRA, 13 JULY 2011

Extension of time; not granted.

Introduction

[1] On 15 March 2011, Fair Work Australia received an application from Mr Anthony Inguanti pursuant to s.394 of the Fair Work Act 2009 (the Act). The application stated that the date of the applicant’s dismissal was 15 November 2010.

[2] The application was made outside the time limit prescribed by s.394(2) of the Act and the employer, Tru Energy trading as Tru Energy Iona Gas Plant (Tru Energy), filed a Form F3 on 31 March 2011 raising a number of jurisdictional objections. One objection, which must be dealt with first, was that the application was lodged “out of time by more than 4 months”.

[3] Section 396 of the Act requires Fair Work Australia (FWA) to consider whether an application is made within time prior to considering the merits of the application.

[4] At the hearing to determine the jurisdictional objection Mr Inguanti appeared on his own behalf and Mr Proietto, Solicitor, appeared with permission, on behalf of Tru Energy.

The Legislation

[5] Section 394(3) of the Act provides Fair Work Australia with a discretion to extend the time limit of 14 days as fixed by s.394(2) if it is satisfied that there are exceptional circumstances pertaining to the late lodgement.

“394(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

Submissions

[6] Mr Inguanti is required to persuade the Tribunal to exercise the discretion to extend time. Mr Inguanti submitted that:

• He was engaged by Tru Energy as a contractor from May 2009.



• During the period in which he was engaged he was advised that he would be made a permanent employee.



• His engagement with Tru Energy ended on 15 November 2010 and he thought a permanent position was going to be advertised.



• On 17 February he lodged a complaint with the Fair Work Ombudsman (FWO) believing that he was an employee of Tru Energy and that he was the subject of a sham contracting arrangement.



• He waited until 17 February to take action because he believed that he still may be made permanent.

[7] Tru Energy submitted that:

• The applicant was a contractor whose work had come to an end.



• There was no commitment to permanent employment.



• On the applicant’s own evidence he was a contractor, although he alleges it was a sham contracting arrangement.



• It was the evidence of Mr Inguanti’s that he did nothing from 15 November 2010 until 17 February 2011 and further from 17 February 2011 until the application was lodged on 15 March 2011.

Conclusion

[8] I now turn to consider the statutory tests. Firstly what was the reason for the delay? It seems clear that Mr Inguanti took no action because he was expecting to be employed. This has two problems in the reasoning. The first is that it conveys an underlying acceptance of the fact that he was not an employee but if that is not right as he believed he was an employee then the time delay is unexplained.

[9] It is clear that Mr Inguanti was aware that his engagement came to an end on 15 November 2010 and that he took no action to challenge the matter until at least 17 February 2011. The confusion which existed between FWO and FWA appeared to be short lived and it still took until 15 March 2011 for Mr Inguanti to lodge with FWA.

[10] As to the prejudice to the employer I am not persuaded one way or the other.

[11] Next, I must consider the merits of the application which are only considered in the context as to whether or not the application is wholly without merit. Whilst I make no finding on the merits, the application may well be wholly without merit if Mr Inguanti was found to be a contractor.

[12] In addition, it was not contested that the work Mr Inguanti was doing was no longer a discrete task, nor was it contested that the work he was doing is now redundant.

[13] Finally, the fairness between the persons and other persons in a similar situation needs to be considered. The situation described by Mr Inguanti does not have sufficiently peculiar circumstances to enable me to conclude that exceptional circumstances exist.

[14] I refuse the application.

COMMISSIONER

Appearances:

A. Inguanti the applicant.

D. Proietto Solicitor on behalf of Tru Energy trading as Tru Energy Iona Gas Plant.

Hearing details:

2011.

Melbourne:

June, 10.

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