Mr Brandon Filomeno v Omnigrip Direct Pty. Ltd

[2024] FWC 1721

[2024] FWC 1721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Brandon Filomeno
v

Omnigrip Direct Pty. Ltd.

(U2024/5784)

COMMISSIONER WILSON MELBOURNE, 1 JULY 2024

Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – whether exceptional circumstances – exceptional circumstance not found – application dismissed.

1. This decision concerns an application by Mr Brandon Filomeno for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Filomeno’s employment with Omnigrip Direct Pty Ltd (Omnigrip) was terminated with effect from Friday 1 March 2024. The unfair dismissal application was filed in the Fair Work Commission (the Commission) on Wednesday 21 May 2024.

1. 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). The period of 21 days ended at midnight on Monday 31 October 2021. The application was therefore filed 16 days outside the 21-day period. Mr Filomeno asks the Commission to grant a further period for the application to be made under s.394(3). Omnigrip opposes this request.

1. For the reasons set out below, I am satisfied on the material before me there not are exceptional circumstances in Mr Filomeno’s case. It follows that I must dismiss his unfair dismissal application.

1. A hearing in respect of the application was held by me on 25 June 2024, at which Mr Filomeno appeared on his own behalf and was represented by his partner, Ms Brooke Stevens. The Respondent was represented by its National General Manager, Mr Justin Strunk and its Chief Financial Officer, Ms Nerida Mortlock. Each party provided written and oral submissions and Mr Filomeno gave oral evidence about his circumstances.

BACKGROUND

1. Mr Filomeno commenced employment with Omnigrip as a construction worker on 23 March 2020 and his employment ended on 1 March 2024, with Mr Filomeno being told at the time his job was at an end for reason of redundancy.

1. The context dealt with in this decision is whether Mr Filomeno should be allowed an additional period for the making of his unfair dismissal application pursuant to s.394 (2) of the Act. The circumstance of the application in this respect is that Mr Filomeno did not have reason to query the basis of his termination until sometime after 1 March 2024 and specifically on 7 May 2024, when he learned information which caused him to question the veracity of redundancy as the reason for his dismissal.

1. With his employment ending on 1 March 2024, Mr Filomeno did not file an unfair dismissal application until 21 May 2024, 60 days after the statutory time period for the making of such applications, which ended on 22 March 2024.

1. Omnigrip provides road safety services associated with road construction work and is a relatively small business, which at the time of Mr Filomeno’s termination of employment employed 19 people. A related business employed 8 people.

1. In early 2024, Omnigrip was experiencing a reduction in demand for its services. Its response to the situation was, it says, to consider a reduction in its workforce. On or around 29 February 2024, Omnigrip wrote to its Thomastown employees which included Mr Filomeno, advising them it was no longer viable to maintain its current operational staffing levels. It told staff that the impact of the prevailing circumstances would be that two operational positions would be made redundant from its Thomastown workforce. In a Q&A sheet provided to employees, it told them that the redundancies were a result of a severe market downturn. Further, with regard to the potential opportunity for transfer to other sites, Omni group direct stated that no such opportunities were currently available.

1. On 1 March 2024, Mr Filomeno was informed he was one of the two employees who would lose their job and he was given a letter confirming this, which stated;

“Subject: Notice of Redundancy

Dear Brandon,

On the 29 of February, an initial meeting was held with you to discuss your position being made redundant due to a downturn in work via lack of government infrastructure spending.

After further discussions today this letter is to confirm that your position is to be made redundant effective today.

In accordance with the terms of your employment contract your period of notice is 3 weeks, which will be paid in lieu of working out the notice. In addition, you will be paid a redundancy payment in line with the National Employment Standards as well as any other entitlements. These calculations are attached on the next page.

We thank you for your dedicated service with OmniGrip Direct and wish you well for the future.

Your faithfully,

Justin Strunk”

1. At the time, Mr Filomeno did not question his dismissal as being for reasons other than genuine redundancy.

1. After being dismissed, he turned his efforts to obtaining alternative employment and succeeded in obtaining casual employment, first for a time with a company between 4 April and 10 May 2024, and then with another from 20 May 2024.

1. Mr Filomeno has been quite assiduous in looking for other work and as part of this search, noticed three separate advertisements on the seek website for employment with Omnigrip. He saw the first and second advertisement on or around 7 May 2024, for positions in Melbourne, and a few weeks later he saw an advertisement for positions in Queensland. Extracts of the advertisements stated the following (noting that it is unclear from the evidence which of the advertisements was seen first by Mr Filomeno);

·     Document 4

“If you are motivated, enthusiastic, and willing to learn, apply now and join a company who values your safety and wellbeing.

Please note only successful applicants will be contacted.

OmniGrip Direct supports a workplace culture of zero harm and encourages this in all that we do.

All successful applicants will need to undergo a Pre­Employment Medical and Drug and Alcohol Screening.”

·     Document 5

“Labourers, Installers, Traffic Controllers, Linemarkers
OmniGrip Direct
Casual/Vacation
Thomastown, Melbourne VIC
Are you a Road Maintenance Worker? Line Marker? Road Marker? If so we are looking for you. Apply today

Operations Supervisor - QLD
OmniGrip Direct
Full time
Archerfield, Brisbane QLD

Great opportunity to join OmniGrip Direct, for the supply and install of specialist surfacing for the …”

·     Document 3

“Located in Archerfield, OmniGrip Direct is an ISO certified company that works within the road safety realm. Due to expansion within our business and secured upcoming contracts, OmniGrip Direct are looking for people with the following skills and/or experience to join our team.

• Civil Labourers
• Resin Installers
• Line Markers/Road Markers

Do you have:
• Construction Induction Card (White/Red Card)
• Valid Medium Rigid Truck License or higher
• Traffic Control/Management qualifications
• First Aid and/or CPR
• Knowledge of OHS Obligations
• Punctual and Reliable

If you are motivated, enthusiastic, and willing to learn,”

1. Mr Filomeno believed then, and believes now, that the advertisements described the work he had been engaged to do, which caused him to question for the first time whether his job was actually redundant.

1. Omnigrip’s submission regarding the advertisements is that it was attempting to gather a pool of potential suitably qualified employees who could be engaged at relatively short notice, once demand allowed, for the employment of new employees.

1. The same day that Mr Filomeno saw the first of the advertisements, he contacted three law firms to see if they could assist. He learned from one of them that there was a time limit associated with the making of unfair dismissal applications to the Commission.

1. Two days later, on 9 May 2024 he sent his former manager, Anthony Sangro a text asking about the advertisements;

“Hi Anthony,

I'm still looking around for work atm, I seen the job ad and was wondering if you guys still want workers?”

1. He never got a reply.

1. On 21 May 2024 Mr Filomeno lodged his unfair dismissal application in the Fair Work Commission.

MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION

1. 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”. Exceptional circumstances have been defined as 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]

1. 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) 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.

1. Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:

“394 Application for unfair dismissal remedy

(1) ….

(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.”

1. 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.

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

Reason for the delay

1. The Act does not specify whether a particular reason for the delay might tell in favour, or not 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]

1. The reason for Mr Filomeno’s delay in making an unfair dismissal application outside of the statutory time limit is in three parts.

1. First is the part from 22 March 2024, when the statutory time period for making an unfair dismissal application ended, until 7 May 2024, being the period in which Mr Filomeno had no reason to query the reason given for his dismissal or consider it may have been unfair.  Second is the period after learning of the advertisements to query whether work was available to him, being the time between 7 and 9 May 2024. Third, is the period after the query to Mr Sangro was made on 9 May 2024 and 21 May 2024, when his unfair dismissal application was lodged in the Commission.

1. I find the first and the second parts of delay are acceptable explanations for a late lodgement. The third part though is not connected with an acceptable explanation.

1. In relation to the first part, Mr Filomeno had no reason to consider his termination may be for any reason other than redundancy and there was, during that period, no necessity to lodge an unfair dismissal application. The second part shows Mr Filomeno moved relatively quickly to ask Mr Sangro about the availability of work once he saw the advertisements. It was reasonable that it took from 7 May to 9 May 2024 for Mr Filomeno to ask about the availability of work. As such, those periods would, if not connected with a third part, amount to an acceptable explanation.

1. The third part of the delay, being the 12 day period between sending the text to Mr Sangro and  the eventual lodgement of the unfair dismissal application on 21 May 2024, is not the subject of an acceptable explanation as to the delay.

1. On 9 May 2024 Mr Filomeno asked Mr Sangro whether Omnigrip still wanted workers. The Respondent puts forward that the reason Mr Filomeno did not receive a reply to the text message sent to Mr Sangro is that the advertisements themselves made it clear that “only successful applicants will be contacted”. That may well be the case, however the fact that no one within the company attempted to contact Mr Filomeno, as a former employee, let go for reason of redundancy less than two months earlier is discourteous at the least.

1. However, the lack of response to Mr Filomeno does not alter the approach which must be taken by me in respect of the third part of the overall delay.

1. It would have been reasonable for Mr Filomeno to wait a day or two after sending the text to Mr Sangro, and to then surmise that no response was about to come. Mr Filomeno should then have commenced his unfair dismissal application immediately if he held concerns about whether his dismissal was other than genuine redundancy. As there was no response from Mr Sangro, it cannot be said that the Applicant was being strung along waiting for an answer that never came.

1. Given that he sent the text on 9:30 AM Thursday, 9 May 2024, it could be reasonably expected that Mr Filomeno would have commenced the application either on the following Monday, 13 May or Tuesday, 14 May 2024 at the latest. To leave the making of the application for a further week, until Tuesday, 21 May 2024, in the absence of any demonstrable reason as to why there should be a further delay, means that there is not an acceptable explanation for me in respect of the third part of the overall delay.

1. As I have found that there is a significant period associated with the overall delay which is not the subject of an acceptable or reasonable explanation, my consideration of this criterion leans against an extension of time being granted to Mr Filomeno for the making of his unfair dismissal application.

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

1. Mr Filomeno was notified of the dismissal on the same day that it took effect. This is therefore a neutral consideration in my determination of whether there are exceptional circumstances.

Action taken to dispute the dismissal

1. The evidence before the Commission demonstrates that, having become aware of the advertisements for jobs with Omnigrip on 7 May 2024, Mr Filomeno immediately took steps to seek legal advice, and then on 9 May 2024, queried his former manager on whether there were in fact jobs available. It stands to the Applicant’s credit that he raised the question about employment with Omnigrip. This action allows the finding made above to the effect that the first and second parts of the overall delay in the lodgement of the application are satisfactorily explained.

1. However, in context, there was limited action taken to dispute the dismissal. The action taken by Mr Filomeno could well have continued beyond the sending of the single text on 9 May 2024, and perhaps more formally so. 

1. As there was no further contact between Mr Filomeno and Omnigrip, pertinent to the third part of the delay, my consideration of this criterion overall is that it is a neutral consideration in determining whether an extension of time should be granted for the making of Mr Filomeno’s application.

Prejudice to the employer

1. I cannot identify any prejudice that would accrue to Omnigrip if an extension of time were to be granted, and none is asserted by the Respondent. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances in this particular case.

Merits of the application

1. The merits of the application to which I must have regard are formed upon a consideration of whether the limited evidence I have before me discloses a likely unfair dismissal.

1. At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[4] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively, whether it appears an applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[5]

1. As very little has been filed by either party in respect of the merits of their respective cases, this is a neutral consideration in my overall decision about an extension of time.

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

1. In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants, whose applications are either currently before the Commission, or have been decided in the past.[6] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[7] In relation to the question of fairness as between applications arising out of the same employer, although it must be noted that one other person were terminated also for reason of redundancy at or around the same time as Mr Filomeno, it is unknown as to whether they took action to dispute their dismissal either before the Commission or elsewhere. This matter is therefore a neutral consideration in determining whether there are exceptional circumstances in relation to Mr Filomeno’s application for unfair dismissal remedy.

CONCLUSION

1. Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mr Filomeno, I am not satisfied that there are exceptional circumstances that would warrant an extension of time for the making of his application for unfair dismissal remedy.

1. As explained above, the first and second parts associated with the reasons for delay are positives for Mr Filomeno and might otherwise lean towards the finding of exceptional circumstances. However, the fact that the third part of the delay is not explained and is much lengthier than could be expected given there was no response from the Respondent to the Applicant’s work enquiry, causes me to find that the overall consideration of delay leans against a finding of exceptional circumstances.

1. That fact, together with there being no other compelling matters associated with the other s.394(3) criteria that would lean towards an extension of time, causes me to finally conclude that I am not satisfied there are exceptional circumstances that would warrant an extension of time for the making of Mr Filomeno’s application for unfair dismissal remedy.

1. As a result of this finding, Mr Filomeno’s unfair dismissal application must itself be dismissed and an order to that effect is issued at the same time as this decision.[8]

COMMISSIONER

Appearances:

Ms B Stevens, for the Applicant

Mr J Strunk and Ms N Mortlock, for the Respondent

Hearing details:

Melbourne.
25 June.
2024.

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

[2] Ibid.

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

[4] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].

[5] Haining v Deputy President Drake (1998) 87 FCR 248, [250].

[6] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

[7] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].

[8] PR776574.

Printed by authority of the Commonwealth Government Printer

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