Mr Tindaro Armaro v Match Projects Pty Ltd

[2015] FWC 193

[2015] FWC 193

FAIR WORK COMMISSION

DECISION

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

Mr Tindaro Armaro
v
Match Projects Pty Ltd
(U2014/14551)

COMMISSIONER CLOGHAN PERTH, 9 JANUARY 2015

Application for relief from unfair dismissal - jurisdictional objection - out of time.

[1] On 23 October 2014, Mr Tindaro Armaro (Mr Armaro or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Match Projects Pty Ltd (Employer).

[2] Mr Armaro states in his application that his dismissal took effect on 29 July 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Mr Armaro has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(b) of the FW Act, a further period for the application to be made, that is, 23 October 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[6] The relevant legislative provisions are as follows:

“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.

(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.”

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 23 October 2014, I issued procedural directions to the parties on 3 November 2014 advising that the matter would be determined by written submissions.

[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 23 October 2014.

CONSIDERATION

[9] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[10] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[11] The majority of employees, who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[12] The burden lies with Mr Armaro to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended.

RELEVANT BACKGROUND

[13] The Applicant commenced employment with the Employer on 15 March 2010 on a full-time basis as an Accountant. The Applicant ceased employment on 29 July 2014.

[14] I now turn to the criteria in s.394(3) of the FW Act.

CONSIDERATION

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[15] The Applicant acknowledges that he received, on 3 June 2014, a letter of termination which reads:

“Under the terms of your employment contract dated 1 July 2011 we hereby provide you with 8 weeks’ notice that your employment with Match Projects Pty Ltd will terminate on 29 July 2014.”

[16] On 12 June 2014, Mr Armaro’s representative, a “Registered Agent & Workers’ Compensation Agent” communicated with the Employer. The Agent put the Employer on notice that the Applicant did not accept his dismissal as reasonable or valid. The Applicant stated that he was giving consideration to seeking reinstatement in the Commission.

[17] On 1 July 2014, Mr Armaro’s Agent advised the Employer that Mr Armaro had now been certified totally unfit for work from 3 June 2014 due to a compensable condition.

[18] On 24 July 2014, Mr Armaro’s Agent advised the Managing Director of the Employer that he had been instructed to act in relation to both his workers’ compensation claim and “alleged unlawful dismissal” from his employment.

[19] The Applicant’s Agent also advised the Employer’s Chief Financial Officer that the Applicant intended to file and application for unfair dismissal in the Commission. Further, that Mr Armaro may file an application for unlawful dismissal.

[20] For the period after 21 July 2014, the Applicant submits that he experienced difficulties relating to the identity of the Employer’s workers’ compensation insurer and concludes that he “moved to file this application with the thought that the new insurer [QBE] might take some more significant amount of time to come up to speed with the file before any further negotiation could take place”.

[21] In considering this criterion, my first observation is that, unlike many other employees who make similar applications to the Commission, the Applicant was given eight (8) weeks’ notice. In comparison to other employees, this is a substantial period of time in which to prepare and make an application alleging unfair dismissal once the dismissal has taken effect.

[22] Secondly, approximately nine (9) days after receiving his notice of termination of employment, the Applicant advised the Employer that he was giving consideration to seeking reinstatement of his employment in the Commission.

[23] Approximately five (5) days before the termination of employment took effect, Mr Armaro advised the Employer that he intended to file an unfair dismissal application in the Commission.

[24] Despite deliberately informing the Employer of his intentions, Mr Armaro does not pursue an application to the Commission alleging unfair dismissal until approximately four and a half months after being advised of his termination of employment and nearly three (3) months after the dismissal took effect. The delay is not insignificant, it is substantial.

[25] It is clear from the Applicant’s submission that, prior to the dismissal taking effect, he was aware of his statutory entitlement to pursue an application for unfair dismissal.

[26] It is inconceivable that the Applicant, as an Accountant, would not be aware of statutory timelines for lodging documents.

[27] It appears that the Applicant took the view that he would pursue his workers’ compensation claim as a priority, or in combination with his alleged unfair dismissal; that was a choice for the Applicant.

[28] Making and pursuing a workers’ compensation claim and an unfair dismissal application are two entirely separate actions. While, in some cases, there may be an overlap of substance in both matters, the matters are discrete statutory rights. With those rights, come statutory responsibilities such as filing an application within the statutory timeline.

[29] A person is not relieved of the statutory timeline in relation to making an application alleging unfair dismissal, because he or she elects to pursue another statutory entitlement. Further, such action is not exceptional circumstances - it is a choice made by the person and brings with it, in this case, unwelcomed consequences, that is, the application is barred by lapse of time.

[30] In conclusion, I am satisfied that the Applicant informed himself of his statutory entitlement to make an application for unfair dismissal, but for other reasons, determined not to pursue that right. Adopting an alternative course of action is neither out of the ordinary, unusual, special nor uncommon, it is routinely encountered. Shortly put, adopting an alternative course of action is not exceptional, it is a disposition encountered daily but brings with it consequences.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[31] There is no dispute that the Applicant was notified of his dismissal on 3 June 2014 to take effect on 29 July 2014.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[32] The Applicant submits that in correspondence, telephone and email discussions, he attempted to obtain information as to the basis of his dismissal to enable him to dispute the merits of such dismissal. The Employer states that the Applicant did not take any action other than this application to dispute his dismissal.

[33] This criterion is not determinative of whether there were exceptional circumstances to allow the application to be filed on 23 October 2014, however, I disagree with the Employer’s position to the extent of the correspondence from the Applicant’s agent I have sighted.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[34] The Applicant submits the Employer is not prejudiced by the delay in making the application. The Employer cites Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[35] I have adopted a neutral position with respect to this criterion.

Paragraph 394(3)(e) - the merits of the application

[36] The Applicant submits that his claim has “significant merit”, there was no reason for the dismissal and that the Employer failed to comply with the Small Business Fair Dismissal Code. The Employer states that the Applicant’s application is without merit. In view of the competing assertions, I have adopted a neutral position with respect to this criterion.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[37] The Applicant submits that this criterion is not relevant. I agree. I have adopted a neutral position with respect to this criterion.

CONCLUSION

[38] In conclusion, for the reasons set out above, I am not satisfied, pursuant to paragraph 394(2)(b) of the FW Act, that exceptional circumstances existed which led to a delay in the Applicant filing his application beyond the statutory time of 21 days after the dismissal took effect. An Order to this effect will be issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 18 November and 9 December 2014.

Employer: 28 November 2014.

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