Mr Romeo Armone v Australian Logistics Solutions Pty Limited

[2024] FWC 3390

[2024] FWC 3390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Romeo Armone
v

Australian Logistics Solutions Pty Limited

(U2024/11004)

DEPUTY PRESIDENT ROBERTS SYDNEY, 5 DECEMBER 2024

Application for an unfair dismissal remedy – extension of time – exceptional circumstances

1. On 16 September 2024 Mr. Romeo Armone (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) against his former employer, Australian Logistics Solutions Pty Ltd (Respondent).

1. According to the application, the dismissal took effect on 5 July 2024 and so it is apparent on the face of the application that it was made outside the 21-day time limitation period prescribed by s.394(2) of the Act. The Applicant sought an extension of time for the application to be made pursuant to s.394(3). Directions were made for the Applicant to file material in support of the application for an extension of time and ultimately a written response was provided which dealt, very briefly, with the matters set out in s.394(3).

1. No response to the originating application was filed by the Respondent. The Commission was however advised by correspondence dated 25 October 2024 from the firm Hall Chadwick, that the Respondent had been placed into voluntary administration on 4 September 2023 and that the Respondent’s business had been sold to another entity as part of a deed of company arrangement (DOCA) on 7 July 2024. It was further advised that the sale was approved by a meeting of creditors on 5 July 2024 and that the Applicant had attended the meeting and voted in favour of the DOCA.

1. Hall Chadwick also said in correspondence that prior to the sale of the business, on 31 May 2024, the Applicant was notified by the Administrator that his employment was being terminated and that he was paid for a period of notice before his employment ultimately came to an and on 5 July 2024. They said the termination was effected by the Administrator in accordance with the power conferred on them by s.437A of the Corporations Act 2001 (Cth) (Corporations Act). Hall Chadwick urged that the application be dismissed to avoid unnecessary costs and thereafter elected not to participate in the matter.

1. Section 440D of the Corporations Act provides that during the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with except in certain specified circumstances. However, the Commission is not a ‘court’ for the purposes of that section[1]. I therefore propose to deal with the application on the basis of the material before me.

1. An extension of time may be allowed for an application of this kind where the Commission is satisfied that exceptional circumstances exist. In order to determine whether exceptional circumstances exist to justify an extension of time, I am required to take into account the matters listed in s.394(3). I deal with each of those matters, in turn, below.

Section 394(3)(a) - Reason for the delay

1. The delay is the period after the prescribed 21-day period for lodging an application; it does not include the period from the date the dismissal took effect.[2] However, circumstances arising prior to the delay may be relevant to the reason for the delay.[3]

1. An applicant does not need to provide an explanation for the entire period of the delay. The absence of an explanation for any part of the delay will usually count against an applicant. On the other hand, a credible explanation for the entirety of the delay will generally weigh in an applicant’s favour. The ultimate conclusion as to exceptional circumstances requires a consideration of all of the matters in s.394(3) and the allocation of appropriate weight to each of them.[4]

1. The reason provide by the Applicant for the delay was ‘I did not know the procedures and I went to the Fair Work Ombudsman’ (FWO). The Applicant submitted that the FWO failed to tell him to go to the Fair Work Commission.

1. Unfamiliarity with unfair dismissal procedures is commonplace. Ignorance of the statutory time limit is not an exceptional circumstance.[5] There was no evidence as to when or how the Applicant became aware of the time limitation or when the approach was made to the FWO or the nature of the approach that was made. There was no evidence of any other steps being taken by the Applicant to progress the making of an application. There was no evidence that the Applicant was otherwise impeded from filing an application during the period of the delay. I do not consider that the reason provided supports a conclusion that exceptional circumstances exist.

Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect 

1. The application itself shows that the Applicant was notified of the dismissal on 31 May 2024 and that the dismissal took effect on 5 July 2024. The Applicant had the benefit of the full period of 21days to file the unfair dismissal application. This factor does not support a conclusion that exceptional circumstances exist.

Section 394(3)(c) – Any action taken by the person to dispute the dismissal

1. The Applicant said that he ‘advised that they were supposed to provide me with a new employment contract as per our agreement.’ I understand this to mean that the entity which purchased the Respondent’s business did not provide the Applicant with a new contract as requested. This does not mean that the Applicant disputed the termination of his employment with the Respondent or the Administrator. There is no evidence that he did so. This factor does not weigh in favour of a conclusion of exceptional circumstances.

Section 394(3)(d) - Prejudice to the employer, (including prejudice caused by the delay) 

1. The Applicant said there was no prejudice to the Respondent ‘as the company is under administration and controlled by a third party during administration.’ It is unclear what is meant by the Respondent being controlled by a third party although it appears the Applicant is referring to the purchaser of the business. On the evidence, I am unable to reach a view about prejudice to the employer. I treat the matter as a neutral consideration.

Section 394(3)(e) - Merits of the application

1. It is unnecessary and undesirable to embark on a detailed assessment of the merits here.[6] The Applicant said that his dismissal was unfair because he had been offered employment before the unfair dismissal and was told by the third party (again, an apparent reference to the purchaser) that he would be sent a contract and employed by them after the administration. He said he rejected the employment offer on this basis but was not subsequently employed by the new owner and was not able to secure another position elsewhere.

1. It is apparent from these submissions that the Applicant’s main grievance is with the new owner of the business and not the Respondent or the Administrator of the Respondent who terminated the Applicant’s employment. On the limited material before me I am of the view, at least on a prima facie basis, that the merits of the application are weak. This weighs against an overall conclusion that exceptional circumstances exist.

Section 394(3)(e) - Fairness as between the person and other persons in a similar position 

1. The Applicant submitted that he was the only employee of the Respondent who was not given a new employment contract arising out of the administration process. This relates to the decision to employ persons rather than the dismissal of the Applicant and persons in a similar position to the Applicant. I regard this as a neutral consideration.

Exceptional Circumstances 

1. 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 nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.[8]

1. Having considered the various matters referred to in s.394(3) and weighed them in the balance, I am not satisfied that there are exceptional circumstances in this case. I am therefore unable to extend time for the application to be made. Had such circumstances existed it is unlikely that an extension would have been granted in any event as a matter of discretion, given the company is in administration and has ceased trading and noting that the Applicant was not in substance, challenging the termination of his employment so much as the refusal of the new owner to engage him.

1. The application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Armone - Applicant.
No appearance for the Respondent.

Hearing details:

By Video using Microsoft Teams at 2:00pm AEDT on Tuesday, 3 December 2024.

[1] Krebs v. Pika Wiya Health Service Aboriginal Corporation (Administrators Appointed and under Special Administration)[2015] FWC 1232.

[2] Long v Keolis Downer[2018] FWCFB 4109 at [4].

[3] Shaw v. ANZ Banking Group Ltd [2015] FWCFB 287 at [12].

[4] See Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39] and [40] in relation to similar provisions under Part 3-1. See also Reeves v. Monadelphous Engineering Associates Pty Ltd[2018] FWC 2219 at [20].

[5] Nulty v. Blue Star Group Pty Ltd[2011] FWAFB 975.

[6] See Kyvelos v Champion Socks[2000] AIRC 540. See also Nulty v. Blue Star Group Pty Ltd[2011] FWAFB 975 at [36] in relation to similar provisions in Part 3-1.

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[8] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.

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