Mr Spiro Manolopoulos v Print Professionals Pty Ltd T/A Print Professionals

[2015] FWC 7218

[2015] FWC 7218

FAIR WORK COMMISSION

DECISION

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

Mr Spiro Manolopoulos
v
Print Professionals Pty Ltd T/A Print Professionals
(U2015/10257)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 21 OCTOBER 2015

Application for relief from unfair dismissal; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to extend should be exercised; extension of time refused; application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 16 October 2015. Mr Spiro Manolopoulos (Applicant) commenced his employment with Print Professionals Pty Ltd t/a Print Professionals (Respondent) on or about 1 May 2014. 

[2] There is some dispute as to the nature of the employment relationship following February 2015, but for present purposes that dispute need not be resolved. It is common ground that the Applicant's employment ended on or about 13 June 2015. What is in dispute is whether or not the employment ended at the initiative of the Respondent, or whether the Applicant resigned his employment. Again, for present purposes that is not a matter that I need to decide but I simply note that the agreed termination date effected by whatever means, occurred on 13 June 2015.

[3] The reason for the termination of the employment, noting that the Respondent maintains that it did not dismiss the Applicant, revolves around an allegation of theft of particular items by the Applicant from the Respondent's premises, and consequently the dismissal assuming it is at the initiative of the Respondent, appears to be on the ground of serious misconduct.

[4] I note that the Respondent is a small business employer within the meaning of the Fair Work Act 2009 (Act) and that the Small Business Fair Dismissal Code (SBFD Code) will apply to the dismissal. Again, whether or not there has been compliance with the SBFD Code is not a matter that I need to decide today, but it will be a preliminary matter that will need to be resolved in the event that an extension of time is granted.

[5] The Applicant applied for an unfair dismissal remedy under s.394 of the Act. That application was lodged with the Fair Work Commission (Commission) on 25 August 2015. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. Based on the termination date taking effect on 13 June 2015, the application for a remedy should have been lodged by no later than 6 July 2015.

[6] That is taking into account that 4 July 2015, which would have been 21 calendar days from the termination date, was a Saturday and 5 July 2015 was a Sunday, so the Applicant was, in accordance with the Acts Interpretation Act 1901, permitted to lodge the application by the 23rd day, being 6 July 2015. The application was lodged outside of the time prescribed. The application was made in effect some 53 days after the last date on which the application was permitted.

[7] The Act allows me to consider extending the period within which an application for an unfair dismissal remedy may be made, but only if I am satisfied that there are exceptional circumstances. Before I deal with the evidentiary matters, I should say a few things for the benefit of the parties, about the principles that are to be applied in considering whether or not I should exercise my discretion.

[8] As is evident from the terms of s.394 of the Act, that provision allows me to allow a further period for the filing of such applications but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances that warrant my considering the exercise of my discretion. The matters that I need to take into account in considering whether or not there are exceptional circumstances are set out in s.394(3). They are:

• The reason for the delay;



• whether the person first became aware of the dismissal after it had taken effect;



• any action taken by the person to dispute the dismissal;



• prejudice to the employer, including prejudice caused by the delay;



• the merits of the application; and



• fairness as between the person and other persons in a similar position.

[9] It is clear from the structure of s.394(3) that each of the matters needs to be taken into account in assessing whether or not there were exceptional circumstances. Individual matters might not, when viewed in isolation, be particularly significant. And so it is necessary not only to consider the matters individually but to look at them collectively and ask whether, collectively, the matters show exceptional circumstances.

[10] ‘Exceptional circumstances’ is not defined in the Act but briefly, ‘exceptional circumstances’ are circumstances that are out of the ordinary, unusual, special or uncommon. The circumstances themselves do not need to be unique or unprecedented. Nor do they need to be very rare. But ultimately, I must be satisfied, taking into account all of the matters that I have outlined, that there are exceptional circumstances.

[11] I will now turn to consider each of those matters beginning with the reason for the delay. It is well established in this tribunal that when considering an explanation given or a reason given for the delay, that the explanation or the reason must be a credible reason or an acceptable reason, and it must explain the whole of the period of the delay.

[12] The reasons given by the Applicant essentially amount to this. Firstly, in relation to the period immediately following the dismissal, the Applicant thought, as had been the case in the past that the altercation that had occurred on 13 June 2015 between he and his employer would blow over and so he allowed time to pass in the hope that the circumstances which led to his dismissal would pass, and that he would continue with his employment with the Respondent.

[13] As things turned out, that did not eventuate. The Applicant gave evidence that about two weeks after the dismissal, he began suffering stress and anxiety which ultimately resulted in what he says is a diagnosis of depression, which manifested itself in him becoming disengaged, not motivated and lacking interest. The Applicant also relied upon evidence given by Mr Peter Tarquinio, a friend, who confirmed that during the period following the dismissal the Applicant had been anxious and irritable, acted out of character and lacked motivation.

[14] Mr Tarquinio also gave evidence that during that period he endeavoured to encourage the Applicant to pursue his rights, but that the Applicant showed a lack of interest in, or lack of engagement in, assisting Mr Tarquinio to assist him in making an application. Although the Applicant says that he is suffering from depression and that he has been consulting a psychologist since at least mid-July 2015, on a weekly basis, I do not have any medical evidence before me which establishes the nature of the mental illness, and, more importantly, the impact of that mental illness on the Applicant's cognitive functioning during the period following his dismissal and until this application was lodged.

[15] I note that during that time and, in particular, between 12 July 2015 and 3 August 2015, the Applicant communicated with the Respondent by email, in which he was able to construct coherent and articulate propositions concerning the circumstances of his dismissal and the collection of his belongings. Without medical evidence about the nature, circumstances and effect of the mental illness that has been alleged, Exhibit 3 which contains the emails to which I have just referred, would indicate that during that period the Applicant was able to think coherently and act accordingly.

[16] Given that the Respondent disputes that the Applicant has a mental illness and that, if he has a mental illness, it contributed to or explains the delay, then absent any medical evidence particularly directed to the impact of any mental illness on the Applicant’s cognitive functioning and capacity to make an application, I am not satisfied that the reason given by the Applicant satisfactorily or adequately explains the whole of the period of delay. In the circumstances this is a matter that weighs against the Applicant.

[17] Turning next to the question of whether the Applicant first became aware of his dismissal after it took effect, it is common ground that the termination of employment, to use a neutral term, took effect on 13 June 2015 and so it is clear that the Applicant became aware of his dismissal on the day it took effect. That he was aware of the fact that his dismissal took effect on the day it took effect is a factor that weighs against the Applicant in this case because he had the full benefit of the entire 21 day period. Indeed, by reason of the 21st day falling on a Saturday, the Applicant had the benefit of 23 days in which to make his application.

[18] Turning then to the question of any action that the Applicant took to dispute his dismissal. The Applicant said that he had a conversation with Mr Jennings of the Respondent, in early July 2015 in which he discussed and disputed his dismissal. It was a conversation that occurred at a time when he attended the premises to collect his belongings. He also produced some email correspondence to which I have already referred and which has been exhibited as Exhibit 3, passing between he and Mr Jennings, in which it is clear that the Applicant is disputing the reasons for the dismissal. In the circumstances, I am satisfied that the Applicant did take some steps other than making this application, to dispute his dismissal. In the circumstances, I am prepared to weigh that matter in favour of the Applicant.

[19] Turning to the question of prejudice, the Respondent did not point to any particular prejudice that it might suffer as a consequent of the application or the grant of an extension of time.  It is clear that the critical conversations that occurred, occurred between the Applicant and Mr Jennings. Other witnesses that the Respondent might rely upon are available should the need arise. So no particular prejudice is identified.

[20] However, the mere absence of prejudice does not mean that there are exceptional circumstances. And in the present circumstances, I consider the absence of prejudice to be a neutral factor.

[21] Turning then to the merits, I have already indicated there are significant areas of dispute as between the Applicant and the Respondent about the circumstances of the termination of the employment.

[22] There is also the matter of the application of the SBFD code, and the issue concerning whether, if there was a dismissal at all, it occurred in February 2015, and that what occurred thereafter was an ending of a business relationship rather than one of employment. In cases involving an extension of time, it is usually the case that it is not possible, nor appropriate, to embark upon a full assessment of the merits of a claim.

[23] The nature of the extension of time hearing is necessarily an interlocutory or an interim step along the process.  It is appropriate, therefore, that I examine the merits of the case from the prism of looking at the Applicant's case at its highest. Allegations have been made about theft of material. Those allegations are denied. In the context of a SBFD code compliance issue, the question will be whether the Respondent had reasonable grounds for believing that the Applicant engaged in the conduct alleged.

[24] In a more substantive case, should a finding be made that the SBFD code was not complied with, questions about valid reason and procedural fairness will also arise. I am prepared to assume, based on the material that I have and looking at the Applicant's case at its highest, that the Applicant’s case – assuming he can establish that he was dismissed, is one that is not without merit, and is arguable.

[25] That is not to say that if I were to grant an extension of time that ultimately the Applicant’s application would succeed, but simply that there is some sound basis on which the allegation of unfair dismissal may be made and prosecuted. In the circumstances, I am prepared to give slight weight in favour of the Applicant in this case.

[26] Turning then to the question of fairness as between the Applicant and other persons in a like position. Neither party made any submissions on this point, and in any event, cases of this kind will generally turn on their own facts. This consideration is concerned with the importance of the application of a consistent principle in cases of this kind, so as to ensure that the Applicant and other people in a similar position or a like position are treated in the same way.

[27] This consideration may relate to matters that are currently before the Commission or to cases that have been previously decided. Neither party brought my attention to any particular case that might be relevant; nor have I been able to identify any particular relevant case. In the circumstances, this is a neutral consideration.

[28] Statutory time limits that are applicable for the exercise of a person's right to bring an unfair dismissal remedy application are an expression of Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right of an individual to bring an application or an action when they are aggrieved, against the right of a respondent to know that once the action has been taken and the time for disputing that action has passed, that that is the end of the matter.

[29] Parliament also recognises that in some circumstances a party should be allowed to prosecute their claim even though their claim has been made outside the time prescribed. However, it recognises that that is an exception rather than the rule, and so it has set out particular circumstances that must be taken into account in assessing whether or not there are exceptional circumstances.

[30] But generally, a person who seeks relief from unfair dismissal must make an application within 21 days and it will only be in exceptional circumstances that the Commission will consider allowing a further period. When I weigh all of the matters that I need to take into account, whether individually or collectively, I am not satisfied that there are exceptional circumstances warranting the consideration of the exercise of my discretion.

[31] There has not been an acceptable explanation for the delay provided. The merits of the application are arguable at best. The Applicant had the full benefit of the statutory time periods because he was made aware of the dismissal on the day it took effect, and although the Applicant took some steps to dispute his dismissal the other considerations to which I have referred, operate in a neutral fashion. As I have indicated, when I look at the evidence in this case and the circumstances that I need to take into account collectively or individually, I am not satisfied that exceptional circumstances exist.

[32] As a consequence, I do not need to consider whether I should exercise my discretion. The application to allow a further period within which the Applicant’s application should be lodged is refused.  As a consequence the application to lodge is dismissed.

[33] An order giving effect to this decision is separately issued in PR573106. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S. Manolopoulos for the Applicant.

Mr S. Jennings for the Respondent.

Hearing details:

2015.

Melbourne.

October 16.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR573105>