Mr Paul Pagliarella v MPBH Pty Ltd T/A Telstra Licenced Store (TLS) Rosebud

[2021] FWC 3993

[2021] FWC 3993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Paul Pagliarella
v
MPBH Pty Ltd T/A Telstra Licenced Store (TLS) Rosebud
(C2021/2891)

DEPUTY PRESIDENT CROSS SYDNEY, 17 AUGUST 2021

Application to deal with contraventions involving dismissal – dismissal.

[1] On 20 May 2021, Mr Paul Pagliarella (the Applicant) lodged an application pursuant to s.365 (the Application) of the Fair Work Act 2009 (Cth), (the Act), alleging that he had been dismissed from his employment with MPBH Pty Ltd (the Respondent) in contravention of the Act.

Background

[2] The Applicant indicated in his Application to the Commission that he was dismissed by the Respondent on 24 April 2021. The Applicant subsequently filed the Application with the Commission on 20 May 2021. An applicant has 21 days from the date of dismissal within which to file a General Protections claim pursuant to s.365 of the Act. The matter was allocated to my Chambers on 2 June 2021 to deal with the Jurisdictional Objection, being that the Application was filed 5 days out of time.

[3] On 7 June 2021 my Chambers issued a Notice of Listing and Directions (the Listing) to the parties. The Listing scheduled the matter for a Jurisdictional Hearing on 1 July 2021 (the Hearing), with Directions made as to the filing of materials prior to that Hearing. Those Directions were as follows:

1. Paul Pagliarella (the Applicant) is directed to file with the Fair Work Commission, and serve on MPBH Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in relation to the Jurisdictional Objection raised by the Respondent in this matter by 4pm on 15 June 2021.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in relation to the Jurisdictional Objection raised in this matter by 4pm on 22 June 2021.

3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 29 June 2021.

4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 22 June 2021.

[4] The Listing specified that the Hearing would take place by video using Microsoft Teams, and Microsoft Teams links and other dial in information was contained within the Listing.

[5] On 15 June 2021, at the request of the Applicant, my Chambers emailed the parties requesting an extension of time within which materials may be filed for the Hearing. The extension of time allowed for compliance with Direction 1 by 18 June 2021, with a commensurate extension of time for Directions 2 – 4. These new Directions (the Amended Directions) were communicated to the parties by email on 15 June 2021.

[6] The Applicant failed to submit his materials in accordance with the Amended Directions.

[7] On 29 June 2021, my Associate emailed the Applicant noting that there had been no submissions received from the Applicant, and requesting that the Applicant contact my Chambers urgently to advise as to the status of his submissions. My Chambers did not receive a response to this email.

[8] On 30 June 2021, the Respondent emailed my Chambers requesting confirmation that the Hearing would be proceeding given that the Applicant had apparently not complied with the Directions. On 1 July 2021, my Associate emailed the parties in the following terms:

“Dear Parties,

I confirm that the Commission has not received any correspondence from the Applicant in relation to this matter.

The Hearing listed for this afternoon will proceed, and any procedural or administrative queries can be raised with the Deputy President.

Could the parties please confirm their attendance for this afternoon, outlining in reply who will be attending the Hearing on behalf of the Applicant and the Respondent, and their contact numbers in case the call is disconnected this afternoon.”

[9] In addition to the above email correspondence sent from my Chambers, my Associate attempted to contact the Applicant via telephone. My Associate contacted the Applicant on the telephone number listed in his Application on the following dates:

29 June 2021 – No answer from the Applicant, left voicemail.

30 June 2021 – No answer from the Applicant, left voicemail.

1 July 2021 – No answer from the Applicant, left voicemail.

[10] At 1:00pm on 1 July 2021, the Hearing proceeded as listed, and no appearance was entered on behalf of the Applicant. My Associate attempted to contact the Applicant by telephone at the time of the Hearing, and attempted to join the Applicant by telephone to the Microsoft Teams call.

[11] During the Hearing, I made Directions for the filing of materials in relation to the Jurisdictional Objection, and, I instructed my Associate to send an email to the parties in the following terms:

“Dear Parties,

The above matter was listed for Jurisdictional Hearing this afternoon at 1:00pm. I note the appearance of the Respondent, Mr Bennet-Hullin, and that the Applicant did not attend.

The below Directions were made:

1. That the Applicant is to file with the Commission, and serve on the Respondent, any submissions they wish to put in relation to the Jurisdictional Objection raised by the Respondent by 4:00pm Friday 2 July 2021;

2. If the Applicant complies with Direction 1, The Respondent is to file with the Commission, and serve on the Applicant, any reply to submissions filed in compliance with Direction 1 by 4:00pm Friday 8 July 2021.

The Deputy President will then consider the materials filed by the parties determine the matter on the papers.

Mr Pagliarella, if you fail to comply with the above Directions, I advise that your matter may be heard in your absence, which could result in the dismissal of your matter.”

[12] The Applicant did not file any material pursuant to the above Directions.

Consideration

[13] Pursuant to s.366(1)(b) of the Act,I may allow a further period within which an application under s.365 may be made. The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances allowing an extension of time are contained in s.366(2) of the Act:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC 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.”

[14] It is clear from the structure of s.366(2) that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[15] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) that there are exceptional circumstances.

[16] It is essential, however, for an Applicant seeking an extension of time to establish a basis for the conclusion that exceptional circumstances exist. The Applicant has completely disregarded three opportunities to advance his application, in the Directions, the Amended Directions and the further directions issued during the Hearing. Accordingly, the Applicant has failed to establish the existence of any exceptional circumstances.

Conclusion

[17] I am not persuaded therefore that there are exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant any different conclusion.

[18] The application for extension of time is refused and the application is dismissed.

DEPUTY PRESIDENT

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