Mr Daniel Schiavello v Decon Industries Pty Ltd
[2021] FWC 1855
•7 APRIL 2021
| [2021] FWC 1855 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Schiavello
v
Decon Industries Pty Ltd
(U2021/1872)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 7 APRIL 2021 |
Application for unfair dismissal remedy – application filed 10 days out of time – circumstances exceptional – extension of time granted.
[1] On 5 March 2021 Mr Daniel Schiavello 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 Schiavello’s unfair dismissal application is Decon Industries Pty Ltd (Decon Industries).
[2] Mr Schiavello had commenced employment with Decon Industries as an apprentice electrician on 18 July 2018. On 18 January 2021, at which time he was a third-year apprentice, Mr Schiavello was informed that his position was redundant and that his employment would be terminated effective 2 February 2021. This was confirmed in writing by letter dated 19 January 2021.
[3] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Schiavello recorded that the unfair dismissal application was not made within 21 calendar days of his dismissal taking effect. As s.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), this file was allocated to me for the purposes of determining whether an extension of time for the making of Mr Schiavello’s application should be granted. Mr Schiavello’s unfair dismissal application made on 5 March 2021 was filed 10 days late.
[4] Mr Schiavello and Decon Industries filed material in response to the Directions I made on 10 March 2021 and I subsequently conducted a Determinative Conference on 6 April 2021 to consider his application for an extension of time for the filing of his unfair dismissal application. Mr Schiavello appeared and gave oral evidence. He was assisted by his wife, Ms Kaitlyn Schiavello. Ms Catherine Faul (Chief Financial Officer) and Mr Robert Facchini (National Construction Manager) appeared on behalf of Decon Industries. They also gave evidence, along with Mr Mohamad Tawfik (General Manager for RG Ladd Pty Ltd).
[5] 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
[6] 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.
[7] 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 Mr Schiavello’s application.
Reason for the delay – s.394(3)(a)
[8] 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
[9] 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, which in this case ended at midnight on 23 February 2021. 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
[10] Mr Schiavello says he discovered a job advertisement on the Seek website on 2 March 2021, in which RG Ladd Pty Ltd (an associated entity of Decon Industries) was seeking applications from 1st Year Electrical Apprentices in its “specialist switchboard manufacturing division”. I note that the job advertisement in question appears to have been posted on the Seek website on 11 February 2021, 5 which was 9 days after Mr Schiavello’s dismissal took effect. Mr Schiavello submits because the termination of his employment on the basis of redundancy appeared genuine to him until he became aware of the abovementioned job advertisement on 2 March 2021, it is reasonable that his application for an unfair dismissal remedy could not have been made any earlier than 5 March 2021. Mr Schiavello submits that upon becoming aware of the abovementioned job advertisement on 2 March 2021, he immediately conducted research using the Fair Work Ombudsman website, the Fair Work Commission website and the applicable Enterprise Agreement. He also said he then contacted the Electrical Trades Union for advice, before submitting his application as soon as possible.
[11] I consider there is a reasonable explanation for at least 7 days out of the 10-day period of the delay from 24 February 2020 until 5 March 2021. That is, I am satisfied there is a reasonable explanation for the delay from 24 February 2021 until 2 March 2021. However, when Mr Schiavello became aware of the abovementioned job advertisement on 2 March 2021, he already knew he was outside the 21-day time period. This is because from 19 January 2021, Mr Schiavello and his wife were aware that there was a 21-day time period within which to lodge an unfair dismissal application through advice given by the Fair Work Ombudsman to Ms Schiavello that day.
[12] That there is a reasonable explanation for 7 days out of the 10-day period of the delay from 24 February 2020 until 5 March 2021 weighs in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
[13] I am satisfied that Mr Schiavello was aware he would be dismissed effective 2 February 2021 and had the full period of 21 days to lodge his application. This is therefore a neutral consideration.
Action taken to dispute the dismissal – s.394(3)(c)
[14] Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time. 6
[15] Mr Schiavello did not initially challenge his dismissal directly with Decon Industries and nor did he take any action to dispute his dismissal until he completed the process of filing this application. As outlined above, Mr Schiavello’s wife contacted the Fair Work Ombudsman on 19 January 2021 and was advised that based on the information she provided, the redundancy appeared genuine. Even if the contact Ms Schiavello had with the Fair Work Ombudsman on 19 January 2021 on Mr Schiavello’s behalf could be said to constitute “action to dispute the dismissal”, I would attribute to it only the most minimal weight in the consideration of whether there are exceptional circumstances.
Prejudice to the employer – s.394(3)(d)
[16] I cannot identify any greater prejudice that would accrue to Decon Industries caused by the application being dealt with now than there would have been had it been made within the 21-day time period. 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 very little weight in the consideration of whether there are exceptional circumstances.
Merits of the application – s.394(3)(e)
[17] 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.
[18] I observe that in broad terms, Decon Industries performs electrical contracting work in the construction industry and engages electrical mechanics, while RG Ladd Pty Ltd performs electrical switchboard manufacturing work and engages electrical fitters. It does not appear to be disputed that shortly before his dismissal, Mr Schiavello was assigned to the RG Ladd Pty Ltd workshop in an attempt by Decon Industries to maintain his employment and that this move saw him performing different work to that which he had previously been performing.
[19] Mr Schiavello submits that he was not dismissed due to a genuine redundancy and therefore his dismissal was unfair. Mr Schiavello relies on the following matters in support of this contention:
• The Seek job advertisement, first posted on 11 February 2021, supports his proposition that the job he was performing at the time of his redundancy (i.e. in the workshop) is required to be performed by someone;
• The Decon Industries workshop is operational, employees are still working in it and in the past, the workshop has been used to provide temporary work for electrical employees from associated entities, such that it is reasonable to expect that practice would continue;
• Decon Industries still employs apprentice electricians, which establishes that an apprentice role is still required to be performed;
• While it is accepted that Decon Industries and its associated entities were experiencing a decrease in demand for its services, the Seek job advertisement contradicts the proposition that RG Ladd Pty Ltd was experiencing a downturn of work;
• In the RG Ladd Pty Ltd and ETU Switchboards Enterprise Agreement 2011-2015, 7 RG Ladd Pty Ltd commits to ensuring that all apprentices undertake the Certificate III in Electrotechnology, which was the Apprenticeship he was undertaking;
• Decon Industries was attempting to replace him with a more junior (and less expensive) Apprentice position and he was not given the option of applying for such position; and
• While he was receiving JobKeeper payments at the time of his dismissal, a JobKeeper stand down direction was not discussed with him as an alternative to termination.
[20] Decon Industries says it has experienced a downturn in projects in Victoria and that it has not recently secured any significant future projects or enough new projects to sustain its employees, thus necessitating redundancies. The evidence of Ms Faul was that over the last 12 months, 50 employees of Decon Industries have resigned or have been terminated due to redundancy and in the case of RG Ladd, the number of redundancies has been approximately 15-20. Ms Faul also gave evidence that there have been no new Decon Industries hires since August 2019 and the position with RG Ladd Pty Ltd is that there had been no new hires from January 2020 until approximately two weeks ago, when an electrical supervisor and a 1st Year Electrical Fitter Apprentice were employed. Ms Faul said JobKeeper payments had enabled Decon Industries to keep employees working for longer by moving them to areas within the various Decon Corporation entities that still had work.
[21] The position of Decon Industries in relation to Mr Schiavello is that the prolonged downturn resulted in his job not being required to be performed by anyone. Mr Tawfik gave evidence about the Seek job advertisement posted on 11 February 2021. He said RG Ladd Pty Ltd was looking for 1st year apprentices in anticipation of there perhaps being new projects obtained from the NBN, Coles or Woolworths. He explained that the particular wording used in the advertisement, such as “a permanent position” and “we are currently recruiting”, was simply standard wording used by RG Ladd Pty Ltd on an expression of interest basis only in order to ascertain what sort of candidates were in the market. Mr Tawfik said the advertisement lapsed after one month. Ms Faul explained that the terms with Seek were that job advertisements were purchased for a 30-day period, whereupon they dropped off the website. In response, Mr Schiavello submits the Seek advertisement was misleading. I further note the evidence from Mr Tawfik that whereas the RG Ladd Pty Ltd and ETU Switchboards Enterprise Agreement 2011-2015 8 outlined the commitment to ensure that all apprentices undertake the Certificate III in Electrotechnology, the situation has changed and there is now a specific electrical fitters course undertaken by RG Ladd Pty Ltd apprentices.
[22] While there does not seem to be any dispute that Decon Industries had experienced a significant downturn in the volume of its work which had resulted in a large number of redundancies and that it had relied on JobKeeper payments along with a range of other measures to keep Mr Schiavello employed until February 2021, there are a series of disputed facts going to the question of whether Decon Industries complied with the consultation obligations 9 in the Decon Industries Pty Ltd and ETU Enterprise Agreement 2017-202110 (the enterprise agreement) and whether it would have been reasonable in all the circumstances for Mr Schiavello to have been redeployed within RG Ladd Pty Ltd,11 even if the position was only for 1st year apprentices and the advertisement was not placed until 9 days after Mr Schiavello’s dismissal took effect.
[23] The weight to be given to this merits consideration is dependent on the extent to which there is merit in the substantive application. 12 It is evident to me that the merits of the application turn on some contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. Mr Schiavello is not without a prima facie case, to which Decon Industries raises some apparent defences. As much as might be concluded at this stage is that it would not appear that the consultation obligations in the enterprise agreement were complied with. I am therefore satisfied that Mr Schiavello’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 – s.394(3)(f)
[24] 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. In this matter it would appear that at the same time as Mr Schiavello was dismissed, Decon Industries also terminated two other employees (one of whom was also an apprentice). Apart from this, neither party brought to my attention any other relevant matter concerning this consideration and I am unaware of any other relevant matter. The matters Mr Schiavello otherwise raised were instead directed at the merits of his case. As Mr Schiavello appears to have been treated in the same manner as his fellow apprentice, I consider this to be a consideration that weighs against a finding of exceptional circumstances in the present matter.
Conclusion
[25] 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. The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” 13
[26] I have considered each of the matters specified in the various paragraphs of s.394(3) of the Act. I have found paragraph (b) is neutral and paragraph (f) weighs against. However, paragraphs (a), (c) (d) and (e) weigh in favour of the grant of an extension, albeit only to a slight degree in the case of paragraphs (c) and (d). Having weighed each of the considerations in s.394(3) of the Act and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.
[27] I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act and I am also satisfied that it is appropriate to exercise my discretion to extend the time for Mr Schiavello to make the Application to 5 March 2021. An Order to that effect will be issued with this Decision.
[28] Accordingly, the matter will now be the subject of further directions so that the question of whether Mr Schiavello’s dismissal was a case of genuine redundancy and the merits of the Application can be conciliated and if necessary, heard and determined.
DEPUTY PRESIDENT
Appearances:
Mr D Schiavello on his own behalf assisted by Ms K Schiavello.
Ms C Faul and Mr R Facchini for Decon Industries Pty Ltd.
Hearing details:
2021.
Melbourne (via Microsoft Teams):
April 6.
Printed by authority of the Commonwealth Government Printer
<PR728389>
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 Exhibit A6 at DCB 329.
6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
7 [2011] FWAA 8332.
8 Ibid.
9 Fair Work Act 2009, s.389(1)(b).
10 [2018] FWCA 684.
11 Fair Work Act 2009, s.389(2)(b).
12 Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
13 [2018] FWCFB 901.
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