Mr Marco Macciocca v BHR Pty Ltd T/A Boylans Transport
[2011] FWA 4406
•14 JULY 2011
[2011] FWA 4406 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Marco Macciocca
v
BHR Pty Ltd T/A Boylans Transport
(U2011/7270)
COMMISSIONER CRIBB | MELBOURNE, 14 JULY 2011 |
Application for unfair dismissal remedy – jurisdiction – extension of time.
[1] This decision arises from an application by Mr Marco Macciocca (the applicant), under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of his dismissal by BHR Pty Ltd t/a Boylans Transport (Boylans Transport) (the respondent). The application was lodged on 21 April 2011.
[2] The application did not proceed to a conciliation conference as the respondent lodged a jurisdictional objection to the application on 16 May 2011. The grounds of the objection were that the application had been lodged out of time. The hearing of the extension of time application by Mr Macciocca was held on Friday 1 July 2011.
[3] At the hearing, Mr Macciocca represented himself whilst the company was represented by Mr D Houlihan, as agent for Boylans Transport.
APPLICANT
Evidence and submissions
[4] Mr Macciocca gave oral evidence during the hearing and had filed a statement dated 7 June 2011. 1 He also made oral submissions in support of his application for an extension of time.
[5] It was Mr Macciocca’s evidence that what his family had gone through was an “exceptional circumstance”. He said that being evicted from his home is not a situation that families go through on a regular basis. 2 Mr Macciocca recounted that his main focus had been to try and keep his home and then, after they had been evicted from there, to find another home for his children. He said that, secondly, he tried to get work as quickly as possible to ensure an income stream. His main focus, therefore, was said to be:
“....basically I needed to try and find income to put food on my children’s plates, pay the rent and make sure that I could live some sort of a lifestyle, as much lower than where it was originally....” 3
[6] Mr Macciocca also stated that he had focused on trying to ensure that life was normal for his children so that his mistakes were not visited upon his children as they had been on himself and his wife. He said that he was trying to move on but believed that, at the end of the day, “wrong is wrong”. 4 Mr Macciocca recounted that:
“I feel that I’ve got to give it a shot and see what happens and that’s what brings me here today.” 5
[7] Mr Macciocca recalled that he had made a call to Fair Work Australia on 6 April 2011 which was within the time limit and he left a message on the message bank. 6 He said that with “everything going on”, it had slipped his mind and he was unable to follow it up. He stated that he did not have any documentation to prove this.7
[8] With respect to the second criteria set out in section 394(3), it was Mr Macciocca’s evidence that he was aware of his dismissal. He recounted that he was given no prior warning and had been called into the office as he was leaving to go home. He had then been immediately walked off the premises. 8
[9] It was Mr Macciocca’s evidence that the only action he had taken regarding his dismissal was to lodge an application (albeit late). He had tried to get legal representation but had not been successful. 9 He said that the company had been prejudiced by his application being late by 10 days. He was unsure about the meaning of this section and found it difficult to correlate “prejudice” with “delay”.10
[10] In terms of the merits of the application, Mr Macciocca recounted that he had had several meetings with his supervisor, Mr Boylan, regarding his supervisor’s unrealistic expectations of the transport fleet. He stated that he had asked Mr Boylan if he was being made a scapegoat and he had responded that yes, unfortunately, as he had to be seen to be doing something. Mr Boylan was also said to have stated that the applicant was the highest ranked person in the company so he had to go. 11
[11] Mr Macciocca explained that, at the time the company’s five main clients were increasing their workload, the fleet servicing those clients was reduced from four and a half trucks to three. He stated that one of the customers told Mr Boylan that he did not have enough trucks and that he needed another one. The result of this was said to be that a mistake regarding a delivery had been made on a Sunday night when he was not at work. There was a critical meeting between the client and the company the next morning without Mr Macciocca being present. The outcome was that he was terminated when, technically, it was not his fault but rather, his second in command, whose job it was to manage the deliveries between Friday and Sunday. The applicant said that his deputy had made a mistake yet he (the applicant) had got the blame. 12
[12] In summary, it was Mr Macciocca’s evidence that everyone makes mistakes in life but that he had paid the ultimate price as far as his family was concerned and had lost the family home. He said that his main focus became finding work and a home for his family. He explained that lodging an unfair dismissal application became secondary to these things. Mr Macciocca stated that what he and his family had gone through were “exceptional circumstances”. He said they were not situations people encountered on a daily basis. 13
[13] Mr Macciocca submitted that losing his home is not something that people go through on a regular basis and so, therefore, it met the definition of “exceptional circumstances”. 14
[14] In his written submissions, Mr Macciocca set out the chronology of events as:
- 3 March 2011 - he was issued with a notice to vacate his property.
- 7 March 2011 - he contacted mortgage brokers.
- 14 March 2011 - he was advised by the mortgage broker that theycould not provide assistance.
- 28 March 2011 - his employment was terminated by the company.
- 6 April 2011 - contacted Fair Work Australia and left a message but was not called back.
- 8 April 2011 - date by which the property had to be vacated.
- 21 April 2011 - date he lodged the application. 15
RESPONDENT
Submissions
[15] No witness evidence was called by the company but oral submissions were made by Mr Houlihan in addition to the written submissions filed. 16
[16] The respondent submitted that the Tribunal’s discretion was limited to extend time and that it could only be exercised if the Tribunal was satisfied that there were exceptional circumstances taking into account the factors listed in s.394(3)(a) to (f). It was argued that all of the factors were relevant - a multi-phased test. 17
[17] With respect to the word “exceptional”, it was contended that its meaning had been settled and that it meant a situation out of the ordinary course - unusual, special or uncommon. 18 Mr Houlihan argued that looking for another job and moving home did not amount to “exceptional circumstances”. These were said to be normal everyday occurrences which happen to everybody at some point in their lives. It was contended that they were not special or unique.19
[18] Mr Houlihan indicated that the applicant’s evidence was accepted regarding the timetable of events concerning losing his house. 20 However, it was stated by the respondent that the vacation date of the applicant’s house was three days before the end of the statutory time period. Mr Houlihan contended that there was no explanation from the applicant as to why he did not file his application as soon as he had moved or why it took him until 21 April 2011 to do so.21 It was argued that no proper reason for the delay had been given by Mr Macciocca.22
[19] In terms of s.394(3)(b), Mr Houlihan stated that it was not disputed that Mr Macciocca was advised at the time of his dismissal. 23 The respondent also contended that the applicant did not take any steps to contest termination.24 He said that there had been no communication from Mr Macciocca to the company following his dismissal.25 Mr Houlihan accepted that the applicant might have contacted Fair Work Australia on 6 April 2011. However, that was said to be the only evidence before the Tribunal of any steps taken by Mr Macciocca to challenge his dismissal.26 Further, Mr Houlihan stated that there was no additional prejudice to the company other than the prejudice associated with an additional hearing.27
[20] With regard to the merits of the case, the respondent submitted that this was not a case where the merits were clearly such, that the applicant’s case is hopeless. It was stated that there was a valid reason for the dismissal and that it was procedurally fair. It was accepted, however, that there could be a contest in relation to this. 28 Therefore, Mr Houlihan argued that the merits of the applicant were neutral.
[21] In terms of the factor contained in s.394(3)(f), the respondent stated that it was not relevant in this case. 29
[22] In summary, Mr Houlihan submitted that the applicant looking for work and for a place to live and moving were not exceptional circumstances. Further, as the move occurred within the statutory time period and there was no evidence of a reason for the delay of 10 days in lodging the application, the Tribunal was urged to dismiss the application. 30
CONCLUSIONS
[23] Section 394(2) of the Act provides:
“(2) [Standard time limit] The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).”
[24] Section 394(3) provides:
(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(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.”
[25] I will deal with each of these factors in turn.
Reasons for the delay s.394(3)(a)
[26] The applicant’s reasons for the delay in lodging his application were that, because he lost the family home and his job, his main focus was on finding somewhere for his family to live and a job so that he had an income.
[27] It was the respondent’s view that the applicant had not provided a proper reason for the delay. There was said to be no evidence about what steps were taken between 8 April 2011 (vacation date) and 21 April 2011 (lodgement date) and the reasons why the application was not made directly after 8 April 2011 which would have been within time (by 3 days).
[28] I have considered carefully all of the material before me and I find that the applicant has provided an acceptable explanation for the delay. There were a series of events which, when taken together, provide a reasonable explanation for the delay. Four days after he was issued with a notice to vacate the family home, Mr Macciocca sought help from a mortgage broker. A week later (on 14 March 2011), the mortgage broker advised that they could not help. The family were then required to vacate their property by Friday 8 April 2011. This was in about 3 and a half weeks time. Two weeks into the 3 and a half week period, Mr Macciocca was dismissed. His family moved by 8 April 2011 which was within about a week and a half after he was terminated. As at 8 April 2011, there were 3 further days when Mr Macciocca could have filed an in-time application. However, he did not lodge it until 13 days after he was required to have vacated his property. It was Mr Macciocca’s evidence that, during the period from 28 March 2011 to 21 April 2011, he was also focused on obtaining another job. Given all of this, it is my view that the applicant has provided an acceptable explanation for the 10 day delay.
Aware of the dismissal - s.394(3)(b)
[29] It was Mr Maccoiocca’s evidence that he was told of his dismissal at the time it took effect.
Any action taken - s.394(3)(c)
[30] It would seem from the evidence that Mr Maccoiocca telephoned the Tribunal on 6 April 2011 and left a message. He filed an unfair dismissal application on 21 April 2011. Apart from doing these two things it does not appear that Mr Maccoiocca took any other actions to dispute his dismissal.
Prejudice to the employer - s.394(3)(d)
[31] The respondent contended that there was no additional prejudice to the company other than the prejudice associated with an additional hearing. Therefore, I find that there is no other prejudice to the respondent other than the usual prejudice which accompanies any granting of an extension of time.
Merits of the application - s.394(3)(e)
[32] It was submitted by the respondent that this was not a situation where the applicant’s case was hopeless. Whilst arguing that there was a valid reason for the dismissal and that it was procedurally fair, it was accepted that there was a contest with respect to the merits.
[33] Given this, it is my view that it is not possible to say that the application is without merit.
Fairness as between the applicant and other persons in a similar position - s.394(3)(f)
[34] This factor is not relevant in this matter.
Are there exceptional circumstances s.394(3)
[35] The basis on which it is decided if the Tribunal’s discretion should be exercised to grant an extension of time is whether there are “exceptional circumstances” taking into account the factors considered in paragraphs 26 to 34 above.
[36] The term “exceptional circumstances” has been considered in a number of decisions of Fair Work Australia. A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd summarised various decisions which dealt with the meaning of “exceptional circumstances”. The Full Bench found that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 31
[37] I respectfully adopt this approach.
[38] Taking account of all of the factors set out in s.394(3) of the Act, I find that there are “exceptional circumstances” such that I should exercise my discretion and grant an extension of time. The situation outlined by the applicant could be, in my view, described as one which is “out of the ordinary course, unusual, special or uncommon”. To lose one’s family home through eviction cannot be fairly described as “common” or “usual”.
[39] Accordingly, Mr Macciocca’s application for an extension of time is granted. The date for lodgement of his application is extended to 21 April 2011.
[40] An order to this effect will be issued separately. 32
[41] The application will be referred for conciliation.
COMMISSIONER
Appearances:
M Macciocca.
D Houlihan for BHR Pty Ltd T/A Boylans Transport.
Hearing details:
2011.
Melbourne.
July 1.
1 Exhibit A1
2 Transcript, PN 62
3 Ibid
4 Ibid
5 Ibid
6 Ibid and Exhibit A1
7 Ibid
8 Ibid PN 63
9 Ibid PN 67 - 68
10 Ibid PN 69 - 71
11 Ibid PN 75
12 Ibid
13 Ibid PN 82
14 Ibid PN 101 - 105
15 Exhibit A1
16 Exhibit R1
17 Transcript PN 120 - 121
18 Ibid PN 121 and Exhibit R1 at paragraphs 4 - 7
19 Ibid PN 123 and Ibid at paragraphs 13 - 14
20 Ibid PN 124
21 Ibid PN 126
22 Ibid PN 127
23 Ibid PN 127 and Exhibit R1 at paragraph 15
24 Ibid PN 127
25 Ibid PN 125 and Exhibit R1 at paragraph 16
26 Ibid PN 125
27 Ibid at PN 128 and Exhibit R1 at paragraph 7
28 Ibid at PN 128 - 130
29 Ibid at PN 120 and 132 and Exhibit R1 at paragraph 19
30 PN at 133
31 [2011] FWAFB 975 at paragraph 13
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