Mr Tony Zerafa v Western Australian Specialty Alloys Pty Ltd

[2013] FWC 5815

[2013] FWC 5815

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Tony Zerafa
v
Western Australian Specialty Alloys Pty Ltd
(U2013/7562)

COMMISSIONER CLOGHAN PERTH, 16 AUGUST 2013

Application for relief from unfair dismissal.

PROCEDURAL BACKGROUND

[1] On 15 March 2013, Mr Tony Zerafa (“Applicant”) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Western Australian Specialty Alloys Pty Ltd (“Employer”).

[2] Mr Zerafa’s employment was terminated with immediate effect on 14 February 2013.

[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)(b) of the FW Act.

[5] As the application was not made within 21 days after the dismissal to effect, pursuant to s.394(2) of the FW Act, it is necessary to determine whether exceptional circumstances exist to allow the application to be made on 15 March 2013.

[6] In determining whether exceptional circumstances exist, it is necessary to take into account the criteria in subsection 394(3) of the FW Act which are as follows:

(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] I should note that Mr Zerafa was represented by a paid representative when making the application. The paid representative ceased to act on 6 May 2013. However, on 21 May 2013, the paid representative filed a notice of discontinuance on behalf of the Applicant. On 27 May 2013, the Applicant withdrew his notice of discontinuance and sought to continue with his application.

[8] I advised the parties that I intended to deal with the issue of whether there are exceptional circumstances to allow Mr Zerafa to file his application on 15 March 2013 by way of written submissions. To assist in the written submissions, I issued procedural directions on 15 May and 14 June 2013.

[9] The Applicant provided his submission on 21 June 2013.

[10] The Employer provides its submission on 15 July 2013.

[11] The Applicant did not take the opportunity to provide a response to the Employer’s submission of 15 July 2013.

[12] Having received the submissions from the parties, this is my decision and reasons for decision on whether the Commission is satisfied that exceptional circumstances existed to allow the application to be filed on 15 March 2013.

APPLICANT’S SUBMISSION

[13] The Applicant’s submission can be summarised as follows:

● following his dismissal, Mr Zerafa contacted WorkSafe (WA) “due to the fact that I believe I was unfairly dismissed for continually challenging...safety issues that were present in the area”;

● “I was then given information in regards to the Fair Work Commission unfair dismissal resolution process...upon the initial claim application process, I was made aware of the post 21 day application clause...I was unaware of”;

● “this is the reason there is a post 21 day delay in this application being lodged as I was also busily trying to acquire further employment and other day to day related tasks”.

EMPLOYER’S SUBMISSION

[14] The Employer’s submission is as follows:

● the Employer disputes the Applicant’s assertion as to why his employment was terminated; and

● in accordance with the provisions of s.394 of the FW Act, the application has not been made within 21 days as required.

CONSIDERATION

[15] 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.

[16] 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.

[17] The vast majority of employees who do 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”. In my view, Parliament’s prescription of having applications filed within 21 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.

[18] The burden lies with Mr Zerafa to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider whether the circumstances set out by the Applicant are exceptional.

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

[19] The Applicant asserts, essentially, four (4) reasons for the delay: following up his dismissal with WorkSafe (WA); unawareness of the time limit; seeking other employment; and other day to day related tasks.

[20] For the large majority of employees, being dismissed necessitates the person to seek further employment. Consequently, there is nothing exceptional in the Applicant having to spend time gaining further employment.

[21] Secondly, being pre-occupied with day to day activities is part of daily living and unexceptional. I am sure that this will not be interpreted wrongly but “life never stops”. When experiencing something exceptional, like being dismissed from your employment, the key to managing those day to day tasks is to ensure they do not get in the way of what is important - such as making an application to the Commission within the statutory timeline to contest that dismissal if the employee considers it unfair.

[22] A third factor which the Applicant puts forward as a reason for the delay is his lack of awareness of the statutory timeline. While it would be wrong to say that unfair dismissal laws are “front and centre” of every employee’s mind, the fact that an employee considers that they have been unfairly dismissed, should increase their conviction to know what legal remedies are available. In this particular application, Mr Zerafa was sufficiently motivated to make enquiries with WorkSafe (WA). In my view, it was only a short step from making enquiries regarding a safe workplace to seeking information regarding the process and statutory timelines for unfair dismissal.

[23] The defence of not being aware of the statutory timeframe has not generally been accepted by the Commission. The FW Act gives employees the right to pursue unfair dismissal against employers within certain parameters. However, these rights are attended by certain performance requirements such as setting out the claim in writing, and making sure that such claim is made within certain timelines. If being unaware of the statutory timeline was exceptional, it would result in employers unreasonably having dismissals challenged at any time an employee is dismissed and becomes aware of the legislative requirements. For these reasons, I am unable to accept that a lack of awareness qualifies as exceptional.

[24] The final factor relates to Mr Zerafa raising the safety of his workplace with WorkSafe (WA). While the safety of his former workplace may have been important to the Applicant, that was a judgement and priority for Mr Zerafa; it does not succeed as circumstances which are exceptional. Mr Zerafa adopted this course of action, however, it was to the detriment of filing his application on time in the Commission.

Paragraphs 394(3)(b)-(f)

[25] The Applicant did not provide any submission in relation to the above criteria. I have taken this fact into consideration in my consideration of whether I should allow an extension of time due to exceptional circumstances.

CONCLUSION

[26] In conclusion, for the reasons set out above, I am not satisfied that exceptional circumstances existed to allow Mr Zerafa to file his application out of time on 15 March 2013. Accordingly, the application must be dismissed. An order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 21 June 2013.

Respondent: 15 July 2013.

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