Mr David Carrafa v Nu NrG Technologies Pty Ltd (All Seasons Synthetic Turf)
[2023] FWC 81
•16 JANUARY 2023
| [2023] FWC 81 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Carrafa
v
Nu NrG Technologies Pty Ltd (All Seasons Synthetic Turf)
(U2022/12246)
| COMMISSIONER JOHNS | MELBOURNE, 16 JANUARY 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
On 31 December 2022 David Carrafa (Applicant), made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Nu NrG Technologies Pty Ltd (All Seasons Synthetic Turf) (Respondent).
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Submissions
In addition to his Form F2 Application, which at item 1.6 explained why his application was not filed within 21 days of the dismissal, the Applicant filed a witness statement in the Commission on 9 January 2023.
The Respondent filed a Form F3 and objected to the matter proceeding because the application was out of time.
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect.
Submissions
The Respondent submits that the dismissal took effect on 5 December 2023 when its Director, Dani Wokulski, advised the Applicant that his performance was unsatisfactory and that he would no longer be required to attend for work.
The Applicant submits that the dismissal took effect on 9 December 2022 after he collected his personal belongings from the workplace on 8 December 2022.
Before me the Applicant gave evidence that he worked all of 5 December. He did not attend for work on 6 or 7 December, but that he attended the work site on 8 December to collect his belongings.[1]
On 8 December 2022 the Applicant received confirmation of the termination. The letter is poorly drafted and unclear about the date the termination took effect. The letter states that the “last working day will be the 9/12/2022.”
Findings
Consequently, I find that that date of dismissal was 9 December 2022.
When was the application made?
It is not in dispute, and I so find, that the application was made on 31 December 2022.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As I found above, the dismissal took effect on 9 December 2022. The final day of the 21 day period was therefore 30 December 2022 and ended at midnight on that day. As I found above, the application was made on 31 December 2022. Therefore, the application was made 1 day late.
Because the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. That is to say, I need to consider whether to grant the Applicant an extension of time.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 30 December 2022. The delay is the period commencing immediately after that time until 31 December 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]
Submissions
The Applicant submitted that the delay was for the following reasons:
·From 25 December 2022 he began experiencing intense pain to both his feet and ankles due to the stress of his dismissal.
·He was unable to walk or move from his apartment and was restricted to having his legs elevated in bed.
·He was unable to gain access to his laptop until 31 December 2022.
·He was unable to complete the application on his mobile phone because it was not working.
In relation to the reason for the delay, the Respondent submitted that the Applicant had notified it of a pre-existing condition with the swelling of his legs and that it was not a recent condition due to stress. It submitted that 21 days was more than enough to make an unfair dismissal claim.
Evidence
No evidence relating to the medical condition of the Applicant was provided by either party.
Before me the Applicant confirmed the chronology above. He further explained that he was late for Christmas lunch because of his condition. After lunch he returned home, but left his car at his parents’ home. Then on 30 December 2022 he returned to his parents’ home to collect his car. [7] I observe that the chronology leaves me with the impression that, at least on both 25 and 30 December 2022 the Applicant was able to drive a car. A person who can drive a car can also complete an online application for unfair dismissal.
Further, before me the Applicant confirmed that he had a mobile phone.[8] No satisfactory explanation was provided for why the Applicant could not complete an online application in the lead up to 30 December 2022. The Applicant gave evidence that he tried to use his mobile phone, but gave up.[9]
Findings
Having regard to the above, I am not satisfied that the reasons for the delay evidence exceptional circumstances. They do not cause me to be inclined to grant an extension of time.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on 8 December 2022, the day before it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
Other than challenging the director about how his position could be made redundant on 5 December 2022, there was no action taken by the Applicant to dispute the dismissal.
Having regard to the above, I find that the Applicant did not take any substantive action to dispute the dismissal prior to making the application on 31 December 2022.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent did not assert any particular or special prejudice. I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[10] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay (as stated above)
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the actions taken by the Applicant to dispute the dismissal;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[11] 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.[12]
Having regard to all of the matters at s.394(3) of the FW Act and the findings I have made above, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
[1] Transcript PN13.
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Transcript PN35.
[8] Transcript PN37.
[9] Transcript PN46.
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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