Mr Francesco Condo v Covid-19 Quarantine Victoria (CQV) Acting Subsidiary Branch of Government Entity: Department of Justice and Community Safety (DJCS)
[2023] FWC 479
•27 FEBRUARY 2023
| [2023] FWC 479 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Francesco Condo
v
Covid-19 Quarantine Victoria (CQV) Acting Subsidiary Branch of Government Entity: Department of Justice and Community Safety (DJCS)
(U2023/282)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 27 FEBRUARY 2023 |
Application for an unfair dismissal remedy – application made outside 21-day timeframe – circumstances not exceptional.
Mr Francesco Condo made an application for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 10 January 2023. The respondent, Covid-19 Quarantine Victoria (CQV) Acting Subsidiary Branch of Government Entity: Department of Justice and Community Safety (DJCS), objects to the application on the basis that:
(a) Mr Condo resigned from his employment; and
(b) the application for an unfair dismissal remedy was not filed within 21 days after the alleged dismissal took effect.
Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). This decision deals with the issue of whether the Commission should allow Mr Condo a further period of time to lodge his unfair dismissal application pursuant to s 394(3) of the Act.
For the reasons that follow, I am not satisfied that there are exceptional circumstances. The respondent’s jurisdictional objection is upheld and Mr Condo’s application for an unfair dismissal remedy is dismissed.
Background
Mr Condo commenced employment with CQV as a Residential Support Officer on 17 December 2020. Mr Condo’s employment ceased on 7 March 2022. From 31 December 2022, CQV ceased operations and its remaining functions are now performed by DJCS.[1]
On 24 February 2022, the respondent advised Mr Condo that it had commenced an investigation into allegations of misconduct against him pursuant to clause 25 of the Victorian Public Service Enterprise Agreement 2022. Mr Condo was provided until close of business on 9 March 2022 to respond to the particulars of the alleged misconduct.[2]
Mr Condo provided a partial response to the concerns on 4 March 2022. In the email Mr Condo stated “[w]here to go from here” followed by the following options:
“1. Change Team.
2. Change to Mickleham Facility to provide assistance with Ukraine Refugee situation.
3. I will Quit.”[3]
The respondent replied on 7 March 2022 stating, amongst other things, “if you wish to resign from your employment and I cannot provide you with any advice on this, other than to advised you that the misconduct investigation will continue while you remain a CQV employee.”[4]
Mr Condo responded later on 7 March 2022 relevantly stating “[k]indly accept my letter of resignation.”[5] It is noted that no attachment appears with the email.
The respondent replied by email on 8 March 2022 accepting Mr Condo’s resignation and requesting the return of certain properties.[6]
The unfair dismissal application was made on 10 January 2023.
Statutory framework
The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[7] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can 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.
Under s 394(3) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:
(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.
These matters are considered below.
Consideration
Reason for the delay: s 394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension. 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.[8]
It is not in dispute that the date the purported dismissal took effect was 7 March 2022.[9] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application lapses, being the 288 days from 29 March 2022 to 10 January 2023.[10] However, the circumstances from the time of the alleged dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[11]
Mr Condo explains the delay on the following basis:[12]
“Organizational Structure is Convoluted, making it difficult to pursue such a case:
- Francesco’s personal email was blocked from contacting the organization.
- Internal Staff have refused to cooperate in providing further useful Contact information.
- Stress surrounding an unpleasant departure from the enterprise weighs negatively on
his Mental Health.
- Further Delay may be attributed to his necessity to pursue alternate Employment to
avoid slipping into Financial Hardship.”
At the hearing, Mr Condo gave evidence that he had attempted to contact the respondent to resolve an alleged underpayment of “over 100 hours of annual leave” in or around late March 2022. Mr Condo alleges that the respondent used the misconduct investigation to prevent him from accessing his entitlement to annual leave. Mr Condo purportedly tried to appeal the investigation or the alleged failure to pay him his annual leave internally. This process was said to be unsuccessful and led to Mr Condo doubting whether he could contest the dismissal.
With respect to the respondent’s organisational structure, Mr Condo submits that he had difficulty identifying who remained employed with the respondent at an unidentified stage following the cessation of his employment. Mr Condo contends that this contributed to the delay in making the unfair dismissal application. Mr Condo sought the full names and contact details of certain persons at the respondent which he considered necessary to pursue his claim. He also sought details about the “unresolved allegations” that led to the purported dismissal including when the investigation was finished, where the “sanction” was located, where did he “stand,” what were the records and other issues. Mr Condo considers that he only had a copy of the “initial accusations” and a claim that was “false.” Mr Condo also took some time to compile the information in response to the accusations.
In relation to Mr Condo’s stress and other related matters, Mr Condo made the following further submissions:
(a) Mr Condo’s personal and professional image was affected by the dismissal;
(b) Mr Condo’s family situation was changing;
(c) Mr Condo prioritised his mental health over the making of the unfair dismissal application;
(d) Mr Condo had to get his life in order before pursuing the unfair dismissal application;
(e) Mr Condo had a death in the family and a funeral in or around April 2022;
(f) Mr Condo moved house in April or May 2022; and
(g) Mr Condo was married in May 2022.
Mr Condo affirmed that he was severely affected by stress in the lead up to the cessation of employment. These health issues increased after his employment ended, largely due to the effect of the dismissal.
I make the general observation that it is difficult to address Mr Condo’s reasons for the delay in a chronological fashion as his evidence at the hearing was not organised. It is therefore necessary to consider all of Mr Condo’s submissions collectively. Nevertheless, Mr Condo affirmed at the hearing that the primary reasons for the delay were his mental health and his difficulty contacting the respondent and these matters may be considered in turn.
While I accept Mr Condo’s submission that he experienced feelings of stress as a consequence of the cessation of his employment, I am not satisfied that this represents a credible explanation for any part of the delay. Mr Condo has produced no medical evidence which establishes that his mental state was severely impacted in such a manner so as to impair his capacity to make an unfair dismissal application.[13] Mr Condo’s submissions in relation to his professional image, his financial pressures and his changing family and residential situation are not borne out by the evidence. Regardless, even if these matters are taken at their highest, Mr Condo has not explained why he was capable of moving house and getting married after his employment ceased but was not capable of making an unfair dismissal application.
I also do not accept that Mr Condo’s alleged difficulties in contacting the respondent represent a credible reason for the delay. Notwithstanding his oral evidence, Mr Condo has provided no written evidence of his attempts to contact the respondent, unsuccessful or otherwise. Any attempts by Mr Condo to resolve his concerns directly with the respondent was a personal decision and was not a process that the respondent invited, or which was compelled pursuant to an internal dispute resolution process such that it would explain why Mr Condo chose to delay lodging his unfair dismissal application.
Further and in any event, there is nothing before the Commission which explains how the respondent’s organisational structure contributed to the delay, as contended. Significantly, CQV remained operative until 31 December 2022, being over nine months after Mr Condo’s employment ceased. The evidence does not establish that Mr Condo held insufficient information to identify the respondent’s details for the purposes of filing the Form F2 application. Rather, the material before the Commission establishes that Mr Condo was in possession of emails from the respondent which contained the signature details of certain management employees.
Finally, the pursuit of alternative employment opportunities following the cessation of employment is a routine matter and does not provide a credible explanation for the delay.
I do not consider that any of the matters raised by Mr Condo amount to a credible reason for any part of the delay. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)
Mr Condo became aware of the cessation of his employment the day it took effect on 7 March 2022. It follows that Mr Condo had the benefit of the full period of 21 days to lodge an unfair dismissal application in the Commission. This weighs against a finding of exceptional circumstances.
Action taken by the person to dispute the dismissal: s 394(3)(c)
Where an applicant takes action to dispute an alleged dismissal, it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[14]
Mr Condo submits as follows:[15]
“Francesco highlighted concern and sought to remedy conditions surrounding his dismissal after discovery his financial entitlements were wrongly withheld. Relevant employer party did not accept Francesco’s initiative to remedy falsely imposed financial and contractual conditions even after offering satisfactory evidence for claims. Communication was then severed by employer.”
Mr Condo’s evidence at the hearing is that he first attempted to contact the respondent in late March 2022 regarding his outstanding employment-related concerns. While I observe that Mr Condo’s communications with the respondent at or about this time appear to be related to an alleged underpayment issue and not an unfair dismissal, there is insufficient evidence before me to conclude on the particulars of these communications.
I consider this neutral in my assessment.
Prejudice to the employer: s 394(3)(d)
The respondent submits that it would be prejudiced by the grant of further time because:[16]
(a) the length of time which has passed is substantial;
(b) the majority of CQV staff ceased employment by 31 March 2022;
(c) CQV ceased operations on 31 December 2022 and its remaining functions were transferred to DJCS; and
(d) key staff involved in the management of Mr Condo and the misconduct investigation are not employed by DJCS, including Mr Condo’s immediate line managers, the relevant internal human resources staff and the senior investigator responsible for conducting the misconduct investigation.
A long delay gives rise to a general presumption of prejudice.[17] The 288-day delay in Mr Condo’s unfair dismissal application can only be described as lengthy. A relevant prejudice is one that the respondent would not have suffered had the application been made within 21 days of the purported dismissal taking effect. Having regard to the material before the Commission, I accept that the significant delay in making this application gives rise to a material and relevant prejudice to the respondent, for the reasons identified at [32] above. This factor weighs against a finding of exceptional circumstances.
Merits of the application: s 394(3)(e)
For the consideration in s 394(3)(e) to weigh in favour of a finding of exceptional circumstances, it must be shown that there is some merit in the substantive application.[18] However, this proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[19]
Mr Condo’s position is that the dismissal was unfair for the following reasons:[20]
“1. Organization has Targeted and defamed employee’s professional character in a deliberate manner and without basis, with intention to unlawfully dismiss.
2. Organization has Artificed Allegations to deny Employee rights to his Annual Leave.”
The respondent submits that the merits of the substantive application are undermined on the basis that Mr Condo resigned from his employment and was not dismissed. In this respect, the respondent further contends that there is no evidence that it pressured Mr Condo to resign and therefore Mr Condo cannot establish that he was forced to resign because of conduct, or a course of conduct engaged in by the respondent.[21] Instead, the respondent’s position is that there is evidence of misconduct by Mr Condo which led to the respondent engaging an investigation pursuant to its enterprise agreement. The respondent submits that Mr Condo made an election to resign instead of further participating in the investigation.[22]
The issue of whether a person was forced to resign because of conduct by their employer requires a detailed consideration of all the available evidence before it is possible to reach any conclusions on the circumstances of the alleged dismissal. Further, Mr Condo’s substantive application alleges intentional defamation of his character by the respondent which is a matter that Mr Condo would be required to develop further before a view may be formed. In circumstances where neither party has had the opportunity to present any evidence in relation to the investigation, and there is no evidence from the relevant CQV personnel, I am unable to form a view on the merits of the application.
I consider this neutral in my assessment.
Fairness as between Mr Condo and other persons in a similar position: s 394(3)(f)
Mr Condo contends as follows:[23]
“Employer abused their position of authority and convoluted nature of their enterprise to pressure Francesco to resign. Employer has deliberately leveraged conditions surrounding his ejection for their financial gain (at his expense). Further, his professional reputation may be negatively affected as result of their unwillingness for cooperation in resolving False Accusations surrounding his dismissal.”
Mr Condo’s submissions in respect of this factor do not raise considerations relevant to the inquiry under s 394(3)(f). Nor do I consider any issues of fairness in this context arise. I therefore regard this as neutral in my consideration.
Are there exceptional circumstances?
The test of exceptional circumstances in s 394(3) of the Act is a stringent one, establishing a high hurdle for an applicant for an extension.[24] Having regard to my consideration of the statutory criteria, and the conclusions reached, none of the s 394(3) factors weigh in favour of a finding of exceptional circumstances. I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.
Order and disposition
As I am not satisfied that there are exceptional circumstances in this case, there is no basis for me to allow further time for Mr Condo’s unfair dismissal application to be made.
The respondent’s objection is upheld Mr Condo’s application for an unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr F Condo on his own behalf
Mr C Golden-Cooper on behalf of the respondent
Hearing details:
21 February 2023, by Microsoft Teams
[1] Form F2 at 1.1; Respondent outline of submissions at [3]-[4]
[2] Form F3 at [3]-[5]; Respondent outline of submissions at [5]-[7]
[3] Attachment R1 to respondent’s submission (Email dated 4 March 2022)
[4] Ibid (Email from respondent to Mr Condo dated 7 March 2022)
[5] Ibid (Email from Mr Condo to respondent dated 7 March 2022)
[6] Ibid (Email dated 8 March 2022)
[7] [2011] 203 IR 1
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[9] Form F2 at 1.5; Form F3 at 1.4
[10] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]
[11] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]
[12] Exhibit A1 – Applicant Outline of Argument (undated) at 4; see also Form F2 at 1.6
[13] Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285 at [21]-[22]; Woolworths Ltd v Lin[2018] FWCFB 1643; (2018) 273 IR 380 at [65]-[67]; Becke v Edenvale Manor Aged Care[2014] FWCFB 6809 at [9]
[14] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
[15] Exhibit A1 at 5
[16] Respondent outline of submissions at [19]-[23]
[17] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at CLR, 556
[18] Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 at [71]
[19] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T2421 at [14]
[20] Form F2 at 3.2; Exhibit A at 7
[21] Fair Work Act 2009 (Cth) s 386(1)(b)
[22] Respondent outline of submissions at [24]-[26]
[23] Exhibit A1 at 8
[24] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; (2018) 273 IR 156 at [14] citing Lombardo v Commonwealth[2014] FWCFB 2288 at [21]
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