Mr Robert De Vincentis v Southern Cross Group Services T/A Southern Cross Security

[2015] FWC 3884

[2015] FWC 3884

FAIR WORK COMMISSION

DECISION

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

Mr Robert De Vincentis
v
Southern Cross Group Services T/A Southern Cross Security
(U2015/7149)

COMMISSIONER WILSON MELBOURNE, 11 JUNE 2015

Application for Unfair Dismissal Remedy; extension of time for the making of application. Application refused.

[1] This matter concerns an application made by Robert De Vincentis alleging unfair dismissal against his former employer, Southern Cross Group Services, trading as Southern Cross Security. Mr De Vincentis’ application to the Fair Work Commission was first received in the Fair Work Commission on 24 April 2015. The document itself is dated on the signature page as 14 April 2015.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Mr De Vincentis’ application is inconclusive about the date upon which his dismissal took effect, referring to two possible dates, being 4 April 2015 or 9 February 2015. The totality of the evidence, set out below, causes me to find that his termination of employment was notified to him and took effect on 8 January 2015, in which case his application was made 85 days out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Mr De Vincentis for the making of his application, and for the reasons set out below, I am not satisfied that a further period should be allowed to him for the making of his application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The Respondent, Southern Cross Security, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[6] Those circumstances include that Mr De Vincentis was first employed by Southern Cross Security in about December 2009 as a security guard. His evidence, not contradicted by Southern Cross Security, is that in recent times he has worked on a full-time basis of about 40 hours per week. Mr De Vincentis was paid as a casual employee and worked as a security guard at the Westfield Airport West Shopping Centre in metropolitan Melbourne. As a result of an incident at that shopping centre in December 2014 he was stood-down from work pending an investigation into his conduct on 19 December 2014. On the relevant day he was working a night shift, and says that he agreed with a colleague to mutually change their hours, and in particular for Mr De Vincentis to finish later than scheduled at 8.30am, the time at which his colleague was to finish, in contrast to his scheduled finish time of 6.00am. In the early hours of the morning, a Southern Cross Security manager arrived and questioned the location of Mr De Vincentis’ colleague. Apparently being dissatisfied with the answers given, the manager also appears to have formed the view that the conduct of and answers given by Mr De Vincentis required investigation. Mr De Vincentis was notified of that; an investigation was apparently undertaken; and Mr De Vincentis’ was invited to a meeting at the Southern Cross Security offices on 8 January 2015.

[7] Mr De Vincentis agrees that in the 8 January meeting he was told that he would no longer be offered shifts at Westfield Airport West and that he was told he would be transferred to duties at an unspecified McDonalds site or sites, or at the Melbourne Aquarium. He agrees that he refused to agree to be transferred to either site. There was apparently a discussion about an alternative of being offered shifts at another Westfield site, at Plenty Valley, however the terms of any offer, if any was to be made, was not resolved in the meeting of 8 January, and the evidence shows it was not resolved in April 2015, or at any time before the making of Mr De Vincentis’ unfair dismissal application.

[8] On or around 20 January 2015, Mr De Vincentis agrees he approached a firm of solicitors, who acted on his behalf, including by making written representations to Southern Cross Security on his behalf. Mr De Vincentis’ evidence is that the firm gave him advice on or around 20 January 2015 that he had “a case for unfair dismissal” on the basis of the circumstances he experienced to that time.

[9] Between about 6 February and 10 March 2015, Mr De Vincentis embarked on an overseas holiday. When he returned, he returned to live at an address in Thomastown, Victoria, which is a different address to that contained within the front part of his unfair dismissal application. His evidence is that on 2 April 2015 he received from Southern Cross Security at the Thomastown address the termination letter attached at the rear of his unfair dismissal application, and which also sets out the Thomastown address. The letter is dated 9 February 2015, and includes the following statements, referring to the meeting that had taken place on 8 January 2015;

“During the meeting, you were given the option of transferring to alternate sites that Southern Cross currently services in Victoria, including McDonalds and Melbourne Aquarium. You advised that you did not want to work anywhere else but Westfield Airport West. You further advised that you will not be attending any shifts rostered for you at alternate sites.

As per your Employment Contract which you signed on 20th June 2013, the conditions clearly stipulate that you are required to work at various locations In accordance with operational requirements.

Southern Cross exercised its right as per the contract to offer you a position at an alternate site. However, this offer was refused. Therefore, Southern Cross acknowledges and accepts this act as tendering in your resignation, effective 8th January 2015.”

[10] Mr De Vincentis denied that he received the letter from Southern Cross Security at any time earlier than 2 April 2015.

[11] The evidence before me includes Mr De Vincentis’ unfair dismissal application, which includes the letter referred to above and a statement from the Applicant about the circumstances in which he finds himself; his former employer’s response; Mr De Vincentis’ evidence; and some limited other documents filed by the parties. Mr De Vincentis did not file submissions or a witness statement in response to the Commission’s Directions in preparation for the hearing of this matter and, because of that, Southern Cross Security was relieved of the obligation to file its own submissions or witness statements. No witnesses were called on behalf of Southern Cross Security.

[12] It was put to Mr De Vincentis in cross-examination that;

• he had been told in the meeting on 8 January 2015 that his refusal of shifts at McDonalds or the Melbourne Aquarium was taken by Southern Cross Security to be a resignation on his part; and



• the letter attached to his unfair dismissal application had been forwarded to those acting for him in early February 2015; and



• the correspondence that he says he received on 2 April 2015, was a copy sent to him following his request for a further copy, and that included within the correspondence was further material, including a cover letter indicating the letter had been sent to him and his solicitors on an earlier occasion.

[13] Mr De Vincentis denied all such possibilities.

[14] I am not able to accept Mr De Vincentis’ evidence on these matters. Mr De Vincentis’ evidence was given with a significant degree of dissembling; lack of precision on matters of critical recall; and changed answers.

[15] The evidence I prefer is to be found within Mr De Vincentis’ unguarded original evidence, which was then confirmed in an answer to a question in cross-examination – that his solicitors had advised he had a case for unfair dismissal. Despite agreeing he had been given such advice, he could not explain why such advice would be given if he had not been dismissed. He otherwise had no explanation as to why he consulted solicitors at the end of January.

[16] I also take into account, and rely upon, a copy of correspondence provided by Southern Cross Security to the Commission after the hearing of this matter indicating that the letter to Mr De Vincentis dated 9 February 2015 had been sent to the Applicant and his solicitors in February. Mr De Vincentis was given an opportunity by the Commission to comment upon the provision of this correspondence and the extent to which the Commission should rely upon it. The material that Mr De Vincentis subsequently provided does not address the date of the Respondent’s correspondence.

[17] I find therefore, on the balance of probabilities, that Mr De Vincentis first learned he would not be offered further shifts on 8 January 2015, because Southern Cross Security deemed him to have resigned by not accepting a transfer of location. Irrespective of whether it was accurate for Southern Cross Security to have couched this as a resignation on the part of Mr De Vincentis, I am satisfied that it is likely he was aware from that meeting that he would not have any shifts after that time. Such circumstance explains why Mr De Vincentis consulted solicitors, who then engaged with Southern Cross Security for some weeks after the meeting on 8 January.

[18] If I am wrong in this analysis, and there was actually uncertainty about the product of the meeting on 8 January, that uncertainty was resolved it seems with the provision to him of Southern Cross Security’s letter dated 9 February 2015. Despite Mr De Vincentis being out of Australia at the relevant time, it is reasonable to infer that his solicitors would have exercised their professional duty to make him aware of the correspondence and its meaning. It is also reasonable to find that Mr De Vincentis would have learned of the correspondence, whether directly from Southern Cross Security or from his solicitors, at the latest on or around 10 March 2015, when he returned to the Thomastown address indicated in the company’s letter.

[19] As set out in the foregoing analysis, I find that Mr De Vincentis’ employment ended on 8 January 2015. At the latest, this was confirmed to him by 9 February 2015.

[20] An unfair dismissal application relating to a dismissal that took effect on 8 January 2015 would need to have been made no later than 29 January 2015 for it to be within time.

[21] For the purposes of s.396 of the Fair Work Act 2009 (the Act), Mr De Vincentis is otherwise a person protected from unfair dismissal.

EXTENSION OF TIME

[22] The Act requires that, in deciding whether to grant an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account six criteria set out in s.394. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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”. 3

[23] In considering whether an extension of time should be granted to Mr De Vincentis, I am required to consider all of the criteria in s.394, which I now do.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2)  The application must be made:

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

(b)  within such further period as the FWC allows under subsection (3).

(3)  The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

Consideration of the factors set out in section 394(3) of the Act

The reason for the delay

[24] There must be an acceptable reason for the delay 4 and an Applicant needs to provide a credible reason for the whole of the period that the application was delayed.5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.6

[25] In relation to Mr De Vincentis, the evidence includes his evidence that he was out of Australia until 10 March 2015 and his claim that he did not receive notification of the end of his employment until 2 April 2015.

[26] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Mr De Vincentis to lodge his application. In all, that period was a total of 85 days, which is the period between 29 January, being the last day to file an application for a dismissal that occurred on 8 January 2015, and the date on which the application was actually made. The delay is therefore considerable.

[27] Mr De Vincentis’ evidence that he only received notification about the end of his employment with Southern Cross Security on 2 April 2015 is implausible, and I do not accept it. By that time he had been without income from the Respondent since 19 December 2014, a period of over 3 months. In January he had questioned, through his solicitors, his status with Southern Cross Security, but without success. He had gone on holiday in February and returned in March. He had waited until April to be advised that further shifts would not be provided to him with the company regarding him as having had resigned. Such scenario invites acceptance of the proposition that he waited several weeks to learn the outcome of the continuation of his employment between the time of returning to Australia on 10 March and 2 April when he received a letter from Southern Cross Security making clear that they viewed him as having resigned and was no longer an employee. Although he gave some evidence about making contact with a manager in the Respondent when he returned, such evidence is not compelling and does not rise to being active questioning of his situation.

[28] Mr De Vincentis’ evidence does not dissuade me from the view that he was aware in January that the company was not going to offer him further shifts and that it deemed him to have resigned.

[29] Mr De Vincentis has not offered any reason for the delay in making his application, instead arguing he was not aware until 2 April that his job had ended.

[30] His unfair dismissal application form itself is dated 14 April 2015 within the form’s signature block, even though it was not lodged in the Commission until 24 April 2015. Mr De Vincentis agreed in giving evidence that he had filled the form out on or around 14 April 2015. His explanation for the period between the time of completing the form and the time of lodgement is that he had computer problems and needed assistance in lodging the application.

[31] As a result of these circumstances, I consider an acceptable reason has not been put forward for the delay in Mr De Vincentis making an unfair dismissal application. Accordingly, this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.

Whether the person first became aware of the dismissal after it had taken effect

[32] On the basis of the evidence before me, I am satisfied that Mr De Vincentis first became aware of the termination of employment on 8 January 2015, which was confirmed to him and his solicitors on 9 February 2015 through Southern Cross Security’s correspondence.

[33] This is therefore not a circumstance where Mr De Vincentis only became aware of his termination at some point after the time that it did. Accordingly, this is a neutral factor in my consideration.

Any action taken by the person to dispute the dismissal

[34] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 7

[35] Mr De Vincentis’ evidence is that he disputed what Southern Cross Security said it would do in the meeting on 8 January 2015 by retaining a firm of solicitors to have acted on his behalf and, on the available evidence, continued to do so until at least mid-February. By 9 February 2015, when Southern Cross Security sent the letter attached to Mr De Vincentis’ unfair dismissal application form, the opportunity to dispute his circumstance with Southern Cross Security was at an end.

[36] Were this to be a circumstance where an unfair dismissal application had not been filed because activities of a solicitor on their behalf were ongoing and had not yet concluded, it is possible that such matter would be taken into account in favour of the Applicant in considering an extension of time. However, because the closure of the interaction between Mr De Vincentis’ solicitors and Southern Cross Security was well before the time that his unfair dismissal application actually was made, this is not a factor in the Applicant’s favour on this occasion.

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

[37] The delay in the filing of the application is 85 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[38] While there has been prejudice and disruption to the former employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 8

[39] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

The merits of the application

[40] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[41] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 9

[42] The evidence discloses only that there was a dispute between Mr De Vincentis and Southern Cross Security on 19 December 2014, apparently about whether the Applicant was entitled to agree with a colleague to mutually swap their finishing times, as well as being about whether the Applicant gave truthful answers to the Respondent in the course of its enquiries to him about the circumstances on that shift. There is presently insufficient evidence before the Commission to undertake any assessment as to the merits of the decision-making of Southern Cross Security and the connection of those merits with the requisite criteria for unfair dismissal within the Fair Work Act 2009.

[43] Accordingly, I give a neutral assessment of the merits of this matter in relation to the criteria for an extension of time allowed for the making of an unfair dismissal application.

Fairness as between the person and other persons in a similar position

[44] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either are currently before the Commission, or have been decided in the past. 10

[45] In applying Mr De Vincentis’ facts to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that there had been some process of diligent inquiry or dispute by him not long after their dismissal. While credit can be given to him for having approached a solicitor during January 2015, and the work they then did on his behalf in the following few weeks, by mid-February that activity on his behalf appears to have been concluded. There is then no further inquiry or dispute by Mr De Vincentis until the making of his application in late April 2015. It could be considered therefore to be unfair to unfair dismissal applicants generally to allow an extension of time to Mr De Vincentis.

[46] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making Mr De Vincentis’ unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Mr De Vincentis’ case but also to the criteria set out within s.394(3) of the Act.

[47] After consideration of the whole the material before me and the legislative criteria, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr De Vincentis.

[48] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Fair Work Act and will issue an order dismissing Mr De Vincentis’ application as being out of time.

COMMISSIONER

Appearances:

Mr R De Vincentis on his own behalf

Mr C Delaney (Australian Security Industry Association) and Ms A Acosta for the Respondent

Hearing details:

2015.

Melbourne (video link to Sydney)

5 June

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]

 3   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 [16].

 9   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 10   Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP, 15 April 2010) [24]‒[29] (in passing).

Printed by authority of the Commonwealth Government Printer

<Price code C, PR568173>