Mr David Mazzuchelli v Airatherm Pty Ltd
[2023] FWC 3132
•11 DECEMBER 2023
| [2023] FWC 3132 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr David Mazzuchelli
v
Airatherm Pty Ltd
(C2023/6098)
| COMMISSIONER LEE | MELBOURNE, 11 DECEMBER 2023 |
Application to deal with contraventions involving dismissal; Application lodged late; Consideration of factors under S. 366(2); not satisfied exceptional circumstances; application dismissed.
This is an edited version of a decision given ex-tempore on 22 November 2023.
David Mazzuchelli commenced employment with Airatherm Pty Ltd on or about 7 June 2023. He was employed in the position of a boilermaker. The reason given by the respondent for the decision to terminate the applicant's employment was: there were complaints about him talking too much; that there was low productivity; that he was making unfounded allegations about sabotage of machinery and that there was an altercation involving him “ranting” at a fellow worker. The Applicant was then terminated within his three‑month probationary period.
The applicant applied for a general protections application remedy under s.365 of the Fair Work Act 2009 (Act) and that application was lodged on 6 October 2023. The application was filed outside the statutory time frame. Applications under s.365 must be made within 21 days after the dismissal took effect.
The applicant's employment was terminated by the respondent with effect from 22 August 2023. Based on a termination date taking effect on 22 August 2023, the application for a remedy should have been lodged no later than 12 September 2023. The application was, therefore, lodged outside of the time prescribed. The application was made, in effect, 24 days after the last date on which it could have been made. The Act provides an application under s.365 not made within 21 days after the dismissal took effect; may be made within a further period as the Fair Work Commission (Commission) allows if the Commission is satisfied there are exceptional circumstances.
Before dealing with the evidence in this matter, I will say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 366(2) of the Act, the statute allows me to allow a further period where the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay;
· any action taken by the applicant to dispute the dismissal;
· prejudice to the respondent including prejudice caused by the delay;
· the merits of the application; and
· fairness as to between the applicant and other persons in a similar position.
Each of the matters need to be taken into account in assessing whether there are exceptional circumstances. The requirement these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show 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 or unprecedented, nor do they need to be very rare. I must be satisfied that taking into account the factors in s.366(2) that there are exceptional circumstances and I am now going to consider those matters in the context of this application starting, of course, with the reason for the delay.
Reason for the delay
The Act does not specify what the 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 the circumstances have to be considered.
In the applicant's Form F8 he accepted that his application was late and the reason given in the Form F8 by the applicant was: I accidentally lodged an F50 discontinuation and have already notified Fair Work Commission about that incident.
On 9 November 2023 my chambers issued Directions to the applicant to file his materials in this matter to deal with the extension of time by no later than close of business, Thursday, 16 November 2023. The applicant failed to file his materials by the requisite time and a non-compliance hearing was held on 21 November 2023.
The applicant indicated he did not see the directions, but at the noncompliance hearing, the applicant stated that he lodged a first application shortly outside the 21‑day period, around 13 September 2023. He submitted that then on the same day, he lodged a Form F50, notice of discontinuance straight thereafter. There is no satisfactory explanation as to why he lodged a notice of discontinuance, but, in any event, that is what the Applicant did and that had the effect of bringing that application to an end.
The applicant then took another 21 days approximately to lodge a second application. There is no satisfactory explanation as to why it took the applicant that long to lodge his second application. The applicant spoke about expecting someone from the Fair Work Commission to contact him by phone. There was no reason to have such an expectation.
During the hearing the applicant gave what were rather incomprehensible statements about missing emails and having trouble keeping track of them. How that explains the failure to lodge the second application within the 21 days is not evident. He did correctly concede there is no excuse for his ignorance, and I agree with that, as one might expect. I have taken into account the applicant's evidence in respect of the reason for the delay. In the circumstances I am not satisfied that the applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the applicant in this case.
Action taken by the Applicant to dispute his dismissal
The applicant did not make any submission or provide any evidence regarding action taken to dispute the dismissal. I will say that the fact that he put in a first application, albeit late, then discontinued it could arguably be said that it was some action that he took to dispute the dismissal at an earlier time, but I have to take into account that that application was already late. In the circumstances I will take that into account, but this factor overall is a neutral consideration in the circumstances.
Prejudice
Mr Rich, on behalf of the respondent, did not make any submission that the Respondent was prejudiced in any particular way as a result of the delay and so that is a neutral consideration.
Merits of the application
As always in cases such as this where the substantial merits of an application are not fully examined into or agitated it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the applicant's case at its most favourable.
The merits, in summary, are that the applicant was employed for less than three months by the respondent as a boilermaker. The applicant claims that while he was employed someone was sabotaging his machinery and he complained about the state of his machinery. An altercation then occurred, at around 21 August 2023 with someone called Jack, who was a co‑worker of Mr Bullen - where the applicant asserted Mr Bullen was sabotaging the machines, as I understand what was in the material of the applicant.
The applicant then, in his application refers to, 'Mr Bullen (or Jack)', suggesting the Applicant is unsure about who threatened to punch him. However, in any event Mr Rich concedes in his reply material that the Applicants co‑worker Jack did make a threat to punch the applicant and subsequent to the dismissal of the applicant, was given a warning for doing so. In any event, the applicant resigned is what is asserted, giving a week's notice. The respondent does not take the jurisdictional objection on that point that the applicant has resigned because they, in any event, terminated his employment on 22 August 2023 and paid the weeks’ notice in lieu, so there is no doubt that the termination was at the initiative of the employer.
Mr Rich, in his Form F8A, set out that the applicant was continually interrupting other welders and talking, and did not cease that practice when asked. That the complaints made about machine sabotage were unfounded and that the applicant became increasingly antagonistic towards Mr Bullen. Ultimately the applicant claims he was dismissed for complaining about the machines, as outlined in his Form F8, and further at the Hearing, he indicated that he had also made other complaints about his employment, although there was not a great deal of clarity as to what they were.
The merits of this case, like many others, will turn on findings of fact, not the least of which would be whether the welding machines were being sabotaged at all, in which case there would be no basis for the complaints being made by the applicant about them and likely no merit to the case. Alternatively, if the machines were being sabotaged in some way, the case may well have some merit.
It seems to me, therefore, that the applicant's claim on a preliminary assessment basis only is not without merit. I am not sure it is a particularly strong case, but in any event, it is not without merit. That is not to suggest it would succeed, but I am satisfied there is at least some merit which would give the applicant a justifiable reason to pursue the claim. In the circumstances that is a matter that weighs slightly in favour of the applicant, although in all the circumstances I do not think it has an enormous amount of merit.
Fairness as between the Applicant and other persons in a similar position
Cases of this kind generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the applicant and other persons in a similar or like position.
Its 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 and of an employer responding to a general protections application. Neither party brought to my attention any relevant matters concerning this consideration and I am unaware of any relevant matter. I, therefore, consider this to be a neutral consideration.
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring a general protections application are an expression of the parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty.
The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party – in this case in relation to a dismissal – that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances the right to bring the action will be lost. A person who seeks relief in a general protections application must make the application within 21 days after the dismissal takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period.
Weighing all the matters that I must weigh into account, taking into account the matters set out in section 366(2), I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period. Essentially the reason for the delay – it is a lengthy delay and there is, frankly, no satisfactory explanation at all for the delay in lodging this application. That weighs against the applicant.
All the other factors are a neutral consideration with the exception of merits. In respect of merits, that weighs somewhat slightly in favour of the applicant. Taking all the factors into account, without a testing of the evidence there is some merit in the applicant’s case. However, I do not view it as such a strong factor that it outweighs the fact that this application was significantly delayed and there is no acceptable reason for that in evidence.
Weighing all the factors together I am not satisfied that there are exceptional circumstances. In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and, therefore, there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application.
An extension of time is, therefore, refused and the application for a general protections application under s.365 that has been made by the applicant is dismissed. An order[1] to that effect will separately be issued.
COMMISSIONER
Appearances:
D Mazzuchelli from the Applicant.
I Rich from the Respondent.
Hearing details:
2023.
Melbourne:
November 22.
[1] PR768750.
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