Mr Enrico Cappelli v Dean Phillips—Darkon Pty Ltd

[2013] FWC 7836

[2013] FWC 7836

FAIR WORK COMMISSION

DECISION

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

Mr Enrico Cappelli
v
Dean Phillips—Darkon Pty Ltd
(U2013/10393)

DEPUTY PRESIDENT SMITH MELBOURNE, 9 OCTOBER 2013

Application for relief from unfair dismissal—multiple jurisdictional objections—application not made within period required—no exceptional circumstances exist to exercise the discretion to extend time for lodging—application dismissed.

Introduction

[1] Mr Enrico Cappelli lodged an application with the Fair Work Commission (the Commission) alleging that the termination of his employment by Darkon Pty Ltd (Darkon) was harsh, unjust or unreasonable. Mr Cappelli made his application pursuant to s.394 of the Fair Work Act 2009 (the Act)

[2] Darkon raised a jurisdictional objection to the application arguing that Mr Cappelli resigned his employment on 25 March 2013. Darkon also argued the application was lodged out of time. The jurisdictional objections must be considered before the merits of the application. 1

[3] Mr Cappelli and Ms Laura Gargano, General Manager of Darkon, gave evidence about a meeting on 25 March 2013. Mr Cappelli argued that the meeting constituted the worst case of bullying and that he was effectively thrown out of his employment.

[4] Ms Gargano’s evidence was that Mr Cappelli stated that unless he received an apology from the employer and a pay rise he would not return to work. During the proceedings Mr Cappelli agreed that 25 March 2013 should be the day upon which his termination took effect and, in his view, the termination was at the initiative of the employer.

[5] The evidence of how Mr Cappelli’s employment ended was strongly contested by Darkon, however, I propose to accept for the purpose of the extension of time application that Mr Cappelli was dismissed from his employment on 25 March 2013.

Extension of time

[6] It is therefore appropriate to now consider s.394(3) of the Act, which sets out matters that the Commission must take into account when considering whether or not it is satisfied that exceptional circumstances exist in order to exercise its discretion to allow a further period for the application to be lodged. During the proceedings I wrongly mentioned that an application must be made within 14 days after the dismissal took effect, whereas the Act now provides for 21 days.

The reason for the delay

[7] Mr Cappelli submitted that he tried for two weeks to contact a relevant person within the Commission, but was frustrated by the automated telephone system, which was confusing and sent him between the Commission and the Fair Work Ombudsman. He said that he was not computer literate and became very frustrated by the system, which did not assist him with multiple and confusing options.

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

[8] Mr Cappelli agreed the date his employment ended was 25 March 2013, although it appeared to me that he did so out of frustration with the proceedings. In any event, there is evidence that he could not have been in any doubt that his employment had ended when he received an SMS message from Ms Gargano on 18 April 2013 about a letter sent by the company accepting his resignation, which it said occurred on 25 March 2013. Mr Cappelli replied by SMS that he had not received a letter. The application was lodged on 11 June 2013—some 54 days out of time. The attempts to speak to someone at FWA could account for two weeks from his evidence but not the full period.

Any action taken by the person to dispute the dismissal

[9] Apart from what is argued about the automated telephone system there is no indication any other action was taken to dispute the dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[10] There is no evidence that there would be any prejudice to the employer.

The merits of the application

[11] In this matter the employer draws attention to the Small Business Fair Dismissal Code and the argument in relation to whether Mr Cappelli resigned. Mr Cappelli made a number of allegations of improper treatment of employees and of him in particular. He argued that he would not have resigned his employment given his age and perceived issues with securing further employment. I have already stated that for the purpose of the extension of time application I will treat this matter as if Mr Cappelli had been dismissed.

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

[12] It would be difficult to find that an extension of time should be given as a result of a complaint about an automated telephone system. That would make the 21 days in the legislation meaningless. Whatever the frustrations experienced by Mr Cappelli he could have attended the offices of the Commission and sought help from the registry in person.

Decision

[13] On the material before me, I am not satisfied that there are exceptional circumstances warranting the grant of a further period of time in which to lodge the application.

[14] Mr Cappelli’s application is struck out.

DEPUTY PRESIDENT

Appearances:

E. Cappelli the Applicant.

D. Phillips with L. Gargano on behalf of Darkon Pty Ltd.

Hearing details:

2013.

Melbourne:

October, 4.

 1   s.396(a) and (d) of the Act.

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