Mr Michael Lauria v NRG Concepts Pty Ltd

[2016] FWC 5400

[2016] FWC 5400

FAIR WORK COMMISSION

DECISION

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

Mr Michael Lauria
v
NRG Concepts Pty Ltd
(U2016/8053)

COMMISSIONER ROE MELBOURNE, 5 AUGUST 2016

Application for relief from unfair dismissal – extension of time.

[1] Mr Lauria was employed by NRG Concepts Pty Ltd (NRG) from August 2014 until his dismissal sometime between 27 May 2016 and 31 May 2016. The employer says that Mr Lauria was notified of the dismissal on 27 May 2016 and that the dismissal took effect on that day. Mr Lauria says that the written confirmation of the dismissal was dated 30 May 2016 and was received on 31 May 2016. Mr Lauria says that he was pursuing unpaid outstanding entitlements during the period following the dismissal and he was advised not to make an unfair dismissal application until the entitlements issue was finalised. The entitlements in dispute in this case were significant. NRG alleged that Mr Lauria owed the company a large sum of money due to overpaid commissions. This amount far outweighed the outstanding annual leave and notice payments. Mr Lauria made his unfair dismissal application on 30 June 2016. The application was therefore between 9 and 13 days late.

[2] A show cause letter was sent by the employer on 20 May 2016 and this was the subject of teleconference on that date. A further teleconference was held on 27 May 2016. A termination letter was sent dated 30 May 2016 and it states that the last day of employment was 27 May 2016.

[3] There was extensive correspondence between NRG and Mr Lauria and their representatives throughout the period from 30 May 2016 until 27 June 2016.

[4] Section 394 of the Fair Work Act 2009 provides that I may allow a further period for the application if I am 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.

The reasons for delay

[5] The only reason given for the delay is that Mr Lauria was engaged in an active dispute with NRG concerning payment of entitlements and alleged debts owed by Mr Lauria to NRG. This dispute explains the whole of the period of the delay in that the application was lodged on 30 June 2016 and the final offer made by NRG in settlement of the dispute is dated 27 June 2016. Generally a dispute concerning unpaid entitlements would not be a reason for delay which would justify a finding of exceptional circumstances. However, in the circumstances of this case NRG was withholding annual leave and other entitlements and requiring Mr Lauria to pay a substantial sum of alleged overpaid commissions and monies advanced. The net payment NRG claimed Mr Lauria should make to NRG, after deduction of outstanding leave and notice entitlements, as set out in the termination letter dated 30 May 2016, is $46,078.32. This is a very substantial sum.

[6] Mr Lauria gave evidence that he had commenced to fill out his unfair dismissal application at the time when he went to seek legal assistance from a law firm. He gave evidence that the lawyers advised him not to proceed with making an unfair dismissal application until after the entitlements issues had been resolved. I accept Mr Lauria’s evidence. The documentation provided by both parties in this matter establishes that the entitlements dispute was not resolved until 27 June 2016 and that there was intensive activity by his lawyers during the period between 30 May 2016 and 27 June 2016. Mr Lauria then made the application without delay on 30 June 2016.

[7] His lawyers are a firm which specialises in termination of employment matters. In these circumstances the advice to Mr Lauria that he should not lodge his unfair dismissal application until after the entitlements dispute was settled was a representative error. I consider this to be an unusual circumstance which strongly supports a finding of exceptional circumstances.

The other factors

[8] Mr Lauria gave evidence that he was told on 27 May 2016 by the General Manager Mr Smith that he had reservations about his employment continuing and that there would be further advice by correspondence. Mr Smith gave evidence that he told Mr Lauria that the company had decided that his employment would not continue and that there would be further advice by correspondence. On balance I am satisfied that Mr Lauria was aware of the dismissal on 27 May 2016 when it took effect. This is therefore a neutral factor in this case.

[9] Mr Lauria did not contest the proposed dismissal but was focused on resolving the entitlements and alleged overpayment dispute during the period following the termination of employment. I consider that this is a neutral factor in the circumstances of this case.

[10] The application was 13 days late. I am not satisfied that there is significant prejudice to the employer. This is a neutral factor.

[11] I have not had the opportunity to consider all of the evidence in this case. There is no basis to conclude that the case is hopeless. This is a neutral factor.

[12] This case depends upon its own particular facts. I do not consider that my decision would be disharmonious with other decisions about related matters. I do not consider there is any issue of fairness as between the person and other persons in a similar position.

Conclusion

[13] Considering all of the factors in Section 394 leads me to conclude that there are exceptional circumstances which justify an extension of time for the application in this case.

COMMISSIONER

Appearances:

Mr M Lauria represented himself.

Mr R Monk and Mr G Smith appeared for the Respondent.

Hearing details:

2016

Melbourne with telephone to Qld

July 29

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