Mr Nicholas Verdura v Cooper Real Estate Pty Ltd T/A Cooper Real Estate

[2015] FWC 4889

[2015] FWC 4889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mr Nicholas Verdura
v
Cooper Real Estate Pty Ltd T/A Cooper Real Estate
(C2015/3693)

COMMISSIONER GREGORY MELBOURNE, 31 JULY 2015

Application for extension of time.

Introduction

[1] Mr Nicholas Verdura was employed as a Real Estate Representative by Cooper Real Estate Pty Ltd T/A Cooper Real Estate (“Cooper Real Estate”) in September 2014. He submits he was employed on a commission only agreement but was not provided with a written contract confirming this arrangement. He also states he made requests on a number of occasions for payment of commissions due to him. While some were paid, others remained outstanding.

[2] On 19 March 2015 Mr Verdura met with a Director of the business, Mr Ross Cooper, and was told his services were no longer required. Mr Verdura subsequently made application under s.365, however, his application was not lodged until 24 April 2015. While some doubt exists about the actual date of termination it appears the application was lodged outside the 21 day period provided for in s.366. Mr Verdura accordingly now seeks an extension of time in which to make application.

[3] Mr Brett Samuel of Rosendorff Lawyers was granted permission under s.596(2)(a) to appear on behalf of Mr Verdura. Cooper Real Estate elected not to provide submissions or evidence in response to the application, and decided not to appear in the proceedings. The only explanation provided from Cooper Real Estate for its decision to not appear or involve itself in the proceedings was contained in an email from Ms Simone Taylor on 30 April. It stated in part, “As the claim was not lodged within the required twenty-one days, we will not be responding any further.” Ms Taylor was contacted again by telephone on the day prior to the hearing and again confirmed Cooper Real Estate would not be appearing in the proceedings.

The Issue to Be Determined

[4] Section 366 of the Act states that an application under section 365 must be made:

“(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).” 1

[5] Section 366(2) provides a discretion to the Commission to extend the time for making application if it “is satisfied that there are exceptional circumstances, taking into account:

“(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.” 2

[6] Therefore –

• What was the date of Mr Verdura’s termination of employment?



• If his application was lodged more than 21 days after the date of termination are there “exceptional circumstances” taking into account the matters in s.366(2) to warrant the Commission exercising its discretion to extend time in which to make application?

The Evidence and Submissions

[7] The submissions provided on behalf of Mr Verdura indicate he commenced employment with Cooper Real Estate in September 2014. Mr Verdura said he understood from his discussions at that time with a Director of the business, Mr Ross Cooper, that he would be engaged on a commission only agreement, although this arrangement was not committed to writing at the time. Mr Verdura said from that point he only became entitled to commission payments once a property had settled, and he was constantly having to chase up his commission entitlements.

[8] In November Mr Verdura said he sought to renegotiate his employment contract with Mr Cooper to provide for a wages/retainer plus commission arrangement. However, despite Mr Cooper agreeing to this request nothing further eventuated, and he continued to be paid on the basis of a commission only arrangement.

[9] Mr Verdura said on 19 March 2015 he arrived at work at the Melton office and met with Mr Cooper who told him, “we are letting you go.” 3 Mr Verdura submits he was not provided with a specific reason for his termination, other than he did not fit in with the businesses’ long-term goals. However, Mr Verdura said he has never been provided with anything in writing to confirm his termination and submits, in the absence of any documentation, his application should be considered to have been lodged within the 21 day time period. Alternatively, the termination should be considered to have taken effect 7 days after he was verbally advised of the decision. In that case the date of effect would be 26 March, and the application would have been lodged 8 days after the expiry of the 21 day period.

[10] Mr Verdura said he now believes the only reason he was dismissed was because the business was “tired of me asking to be paid my commissions and simply did not want to pay me.” 4 Mr Verdura said he had a further discussion with Mr Ross Cooper on the day after he was told he had been dismissed and again sought an explanation about why he was being terminated. He also sought confirmation that the outstanding commission payments due to him would be paid. Mr Verdura also stated he was in further contact with Cooper Real Estate on 27 March seeking payment of commissions on a property he had sold previously.

[11] Mr Verdura said he was then absent from Australia from 6 April until 22 April while visiting his future in-laws in Vietnam. This trip had been planned well in advance. He also stated he had not previously sought legal advice to that point for two reasons. Firstly, he was unaware he was not going to receive his commission payments. Secondly, he was not aware of the option of making a claim under the General Protections provisions in the Fair Work Act.

[12] Mr Verdura was then involved in a further discussion with Cooper Real Estate on 23 April in which he was told he would not be receiving any further commission payments. He then decided to seek legal advice about non-payment of these amounts.

[13] Mr Verdura also states that following his dismissal he was “an emotional wreck” 5 and went to see his G.P. as he believed he was suffering from depression. He also said the legal advice he obtained indicated he should not have been placed on a commission only arrangement, as he did not satisfy the minimum income test in the Real Estate Industry Award 20106. He also believes Cooper Real Estate has failed to provide a number of other entitlements due to him under the Award.

[14] The submissions provided on behalf of Mr Verdura also deal with the various matters in subsection 366(2) the Commission is required to take into account when considering whether to exercise its discretion to grant additional time in which to make application.

(a) The reason for the delay

[15] Mr Verdura provides various reasons for the delay in making application. He submits, firstly, he was never provided with any form of written notice of termination and, as a consequence, was unsure of the exact date of his dismissal. In the discussions with Mr Cooper on 19 March he was not told his dismissal was to take effect immediately, and he believed his employment might continue until such time as his commission payments were finalised. He had a further discussion with Mr Cooper on the following day, but again was not provided with confirmation of the date of effect of his dismissal.

[16] He also said he did not seek legal advice immediately because he had received assurances from the Cooper Real Estate that his commissions would be paid, and he was unaware of the additional entitlements due to him under the terms and conditions in the Real Estate Industry Award 2010. He also made further requests for payment of his commissions on 27 and 30 March 2015.

[17] Mr Verdura was also absent from Australia during the period 6 April until 22 April when he visited his future in-laws in Vietnam. He was again in contact with Cooper Real Estate immediately following his return to Australia, but was then told he would not be receiving any further commission payments. He then sought legal advice about enforcing the non-payment of these amounts. He was then advised about the option of making application under s.365.

(b) Any action taken by the person to dispute the dismissal

[18] Mr Verdura does not believe there was a valid reason for his dismissal and submits that no issues were raised about his work performance or behaviour during the time he was employed. He returned to the office on the day after he had been told he had been dismissed to try and obtain an explanation for the decision to dismiss him. He later sought legal advice and then lodged this application.

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

[19] Mr Verdura submits there is no prejudice to Cooper Real Estate as the delay in making application is minimal.

(d) The merits of the application

[20] Mr Verdura submits that throughout his employment he regularly made complaints about the commission payments, and made numerous requests for payment of these amounts. He submits this was an exercise of a workplace right and he was terminated because he sought to pursue this entitlement. He also submits Cooper Real Estate has breached the Real Estate Industry Award 2010 as it was never entitled to engage him on a commission only arrangement. He also submits it has breached the Award in a number of other respects.

(e) Fairness as between the employee and other employees in a similar position

[21] Mr Verdura submits this consideration is not relevant in the circumstances of this matter.

[22] Mr Verdura also relies on the decision in Nulty v Blue Star Group Australia Pty Ltd 7 as authority for what is required to constitute “exceptional circumstances.”

Consideration

[23] In coming to a decision in this matter the Commission is obviously hindered by the fact it does not have the benefit of submissions or evidence from the respondent, Cooper Real Estate. However, I am satisfied it has been provided with every opportunity to make submissions and provide evidence, but has made a conscious and informed decision not to do so. The various correspondence, emails and telephone communications with Cooper Real Estate and its responses, or the lack thereof, are evidence of this.

[24] The only explanation for Cooper Real Estate’s decision not to participate in the proceedings was contained in an email provided to my Associate on 30 April 2015 by Ms Simone Taylor who was indicated to be “Administration Cooper Real Estate.” The email stated:

“In response to your email in regards to confirmation of date of ceasing employment.

I can confirm that employment did not cease on Friday 3rd April (being Good Friday). Nicholas Verdura's employment ceased with Cooper Real Estate on Thursday the 19th Of March 2015.

Also the addressee being myself Simone Taylor is the incorrect person to address any documents to. I am an administration worker, who has no say over employment, wages or decision making within the business.

As the claim was not lodged within the required 21 days, we will not be responding any further.” 8

[25] However, these circumstances do not prevent the Commission from proceeding to determine the matter in accordance with the relevant provisions in the Fair Work Act.

[26] As indicated, s.366(2) sets out the various considerations that the Commission is required to take into account in dealing with this matter. The question of what constitutes “exceptional circumstances” has also been considered in previous decisions of this Tribunal, including in the decision of Nulty v Blue Star Group 9(“Nulty”), referred to in the submissions provided by Mr Verdura. The Full Bench in that mattercame to the following conclusion about what is required to constitute “exceptional circumstances” when it stated:

“[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.

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 10

[27] In summary, the decision makes clear that to establish the existence of “exceptional circumstances” requires something out of the ordinary or unusual, and such circumstances might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter by reference to these considerations and the matters in s.366(2) I must take account of.

(a) The reason for the delay

[28] There are several reasons relied upon by Mr Verdura for the delay in making application. Firstly, it took time for him to finally come to the realisation he was not going to receive the balance of the commission payments he believed were due to him from the sales he had been involved in when employed by Cooper Real Estate. This only occurred when he contacted his former employer immediately following his return from overseas and it was made clear in that discussion that no further payments would be made. That confirmation also led him to conclude his repeated attempts to obtain his commission payments during the time he was employed were actually the reason for his termination.

[29] He also submits he felt upset and depressed as a consequence of his dismissal and this impacted on his judgement and decision making. He was also absent from Australia from 6 April, during the two week visit to meet his future in-laws in Vietnam. This trip had been planned for some time. Finally, it was not until he obtained legal advice immediately after his return to Australia, and after it was made clear the outstanding commissions would not be paid, that he became aware of the option of making a General Protections application.

[30] In considering these various reasons I note, firstly, that no medical evidence was provided to support the submissions made about Mr Verdura’s state of mind following his termination. I have no doubt he was distressed and upset by the circumstances surrounding his termination, particularly as it appears to have been totally unexpected. However, I also note that previous decisions of this Tribunal have found that feelings of upset and anxiety about being dismissed from employment are entirely understandable and expected reactions, rather than being something exceptional or unusual.

[31] I also note the submissions and evidence indicate Mr Verdura had an ongoing battle to obtain the commission payments due to him, both during and after his employment ended. However, it was not until some time after his employment concluded that it was finally made clear to him that his Cooper Real Estate did not intend to make any further payments to him.

[32] It appears this realisation led Mr Verdura to finally conclude that his persistent pursuit of these commission entitlements was actually the reason why he was dismissed. The fact he left Australia on a long planned visit to Vietnam shortly after being dismissed obviously contributed to the delay as well. However, on his return to Australia, and after the further discussion with the Cooper Real Estate on 23 April, he immediately sought legal advice and was informed about the option of bringing a General Protections application.

[33] In considering the reason for the delay I am satisfied it can, in large part, be explained by the fact Mr Verdura was not actually aware his repeated attempts to obtain the commission payments due to him were the reason why he was dismissed until Cooper Real Estate finally confirmed it did not intend to make any further payments to him. Until this point he remained optimistic that the matter could be resolved on an agreed basis. However, the discussions on 23 April put into context his earlier attempts to obtain payment and provided an explanation for the decision to terminate his employment. Once this became clear Mr Verdura immediately sought legal advice and his General Protections application was lodged.

(b) any action taken by the person to dispute the dismissal

[34] Mr Verdura sought confirmation about the reasons for his dismissal at the time it occurred. He also returned to the office on the following day, again seeking confirmation about why he had been dismissed. He continued to be in contact with his former employer on a number of other occasions seeking payment of the outstanding monies he believed were owed to him. As indicated, he finally took action in the form of this application once it became clear to him why he had been terminated.

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

[35] Mr Verdura submits there will be little prejudice to his former employer if he is provided with additional time to make application because of the limited period of delay. These submissions are noted, however, there will inevitably be some prejudice to Cooper Real Estate if he is provided with additional time to make application, given it will be required to prepare its response.

(d) the merits of the application

[36] Mr Verdura submits the facts of the matter indicate the application has significant merit. He submits he sought to exercise a workplace right, being the enquiries made about amounts owing to him, on numerous occasions. He also submits it was the exercise of this workplace right that led to the decision by Cooper Real Estate to terminate his employment, particularly as he was provided with no other specific reason, and no issues had previously been raised about his work performance or behaviour.

[37] The Commission obviously does not have the benefit of any response from Cooper Real Estate about these submissions and I am clearly unable to form a concluded view about the merits or otherwise of Mr Verdura’s application. However, the relevance of the issue of “merit” when determining an application for an extension of time was considered previously by a Full Bench of the former Australian Industrial Relations Commission in the matter of Kyvelos v Champion Socks Pty Ltd 11(“Kyvelos”) when dealing with similar legislative provisions to those in the Fair Work Act. The Full Bench stated:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 12

The Full Bench continued:

“It should be emphasised that in considering the merits the Commission not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 13

[38] As indicated, it is not possible to form a concluded view about the respective merits of the present application, based on the submissions and evidence now before the Commission. However, the decision in Kyvelos makes clear it is not necessary to do so at this point.

(e) fairness as between the person and other persons in a like position.

[39] This consideration does not appear to be of particular significance in the present application.

Conclusion

[40] There is some doubt about when Mr Verdura was terminated, given the limited information provided to him at the time, and the decision by Cooper Real Estate to not participate in these proceedings. However, based on the material now before the Commission I am satisfied the relevant date was either 19 March, being the date when Mr Verdura was advised by Mr Cooper his services were no longer required, or one week after that date, being the requisite period of notice that would normally be expected to be provided to Mr Verdura, given his length of service. In any case I am satisfied the application was lodged outside of the 21 day period provided for in s.366.

[41] However, I am also satisfied it was only with the passage of time, and the subsequent confirmation from Cooper Real Estate that Mr Verdura would not be receiving the outstanding commission payments, that led him to form a concluded view about the reason for his termination. He then acted promptly to obtain legal advice and lodge the present application. These circumstances can be considered to be “exceptional” in that they are out of the ordinary course or unusual in the manner contemplated by the decision in Nulty. I am also satisfied they warrant an exercise of the discretion provided for in s.366(2) to extend time for making application.

[42] I have had regard to all the circumstances involved in this matter, and the considerations in s.366 that I am required to take account of. As indicated, I am satisfied that it is appropriate for the Commission to exercise the discretion available to it to grant Mr Verdura additional time in which to make application. The matter will now relisted for conference to enable it to be dealt with in accordance with s.368(1).

COMMISSIONER

Appearances:

Brett Samuel of Rosendorff Lawyers appeared on behalf of the Applicant.

Hearing details:

2015.

Melbourne:

20 May.

 1   Fair Work Act 2009 (Cth) at s.366(1)

 2   Ibid at s.366(2)

 3   Exhibit NV2 at para 16

 4   Ibid at para 18

 5   Ibid at para 28

 6   MA000106

 7   [2010] FWA 6989

 8   Email from Simone Taylor to the Chambers of Commissioner Gregory dated 30 April 2015

 9   [2011] FWAFB 975

 10   Ibid at para 13 to 14

 11   Dec 1294/00 M Print T2421

 12   Ibid at para 14

 13   Ibid

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