Nick Benedetto v Carbridge WA T/A Connect Buses

[2015] FWC 198

[2015] FWC 198 [Note: An appeal pursuant to s.604 (C2015/1389) was lodged against this decision - refer to Full Bench decision dated 26 March 2015 [[2015] FWCFB 1263] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nick Benedetto
v
Carbridge WA T/A Connect Buses
(U2014/15312)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 JANUARY 2015

Application for relief from unfair dismissal.

[1] Mr Nick Benedetto alleged that the termination of his employment by Carbridge Pty Ltd was unfair.

[2] Mr Benedetto’s employment with Carbridge ended on 20 October 2014 and as he did not lodge his unfair dismissal application until 20 November 2014 the application was not made within 21 days of the date of the dismissal.

[3] The application was listed for an extension of time hearing. At the conclusion of the hearing I advised the parties that there were no exceptional circumstances that would warrant the granting of an extension of time and that Mr Benedetto’s application for unfair dismissal was dismissed. These are my reasons for that decision.

[4] The Fair Work Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must have regard to the following criteria.

The reason for the delay

[5] Mr Benedetto did not dispute that he resigned his employment. He sent a letter to Carbridge on 12 October 2014 complaining about the changes made to his hours of work. Mr Benedetto in that letter said “as soon as you can replace me I would like to go.” On 20 October 2014 he spoke to Mr Luke Todd and it was agreed that he could finish up that day. Mr Benedetto said he did not consider lodging an unfair dismissal application until he received his final pay 16 days later and he found that Carbridge had not paid his long service leave (LSL). He then received a letter from Mr Bruce White, the operations manager, dated 11 November 2014 explaining why he was not paid his LSL. Mr Benedetto also explained that he attempted to contact the Commission and the Fair Work Ombudsman on numerous occasions but on each occasion the phone was not answered and there was no capacity to leave a message.
[6] As I explained to Mr Benedetto at the hearing, the Fair Work Commission is not able to resolve a dispute over the non payment of long service leave.

[7] Even if it were reasonable for Mr Benedetto to decide to wait until he received his final pay to decide if he was going to lodge an application for unfair dismissal he had no satisfactory explanation for why, after being told by Mr White that he would not be paid LSL on 11 November 2014, he took another nine days to lodge his application. Even if I accept that Mr Benedetto was not able to speak to someone at either the Commission or the Ombudsman that does not explain why he did not promptly lodge the application.

[8] I find that the reasons for the delay provided by Mr Benedetto weigh against extending time.

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

[9] Mr Benedetto was aware of the dismissal on the day it took effect and therefore had the full 21 days to lodge his application. This weighs against extending time.

Any action taken by the person to dispute the dismissal

[10] Mr Benedetto did not in the period between 12 October and 20 October 2014 seek to withdraw his resignation and other then disputing the non payment of his LSL he did not dispute his dismissal. This weighs against extending time.

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

[11] No specific prejudice to the employer if an extension was granted was identified. This weighs in favour of extending time.

The merits of the application

[12] Mr Benedetto accepts that he resigned his employment. He submitted that this was a constructive dismissal. It was his view that Carbridge changed his shifts for the purpose of forcing him to resign. Mr Wilson explained that he had changed Mr Benedetto’s shifts because Mr Benedetto was not completing all the required tasks. After making those changes he said that there were occasions when Mr Benedetto notified that he would be sick and the amount of notice and, on one occasion, the method of giving the notice, had created operational difficulties. Mr Benedetto then had 4 weeks off sick and during that time Mr Wilson decided to roster Mr Wilson onto an early morning shift as it would be operationally easier to replace him if he was not available to work. Mr Wilson provided Mr Benedetto with advanced notice of this roster change. It was this change that Mr Benedetto objected to.

[13] In making his decision to change Mr Benedetto’s hours of work, Mr Wilson did not appear to have regard to clause 10.4 of the Passenger Vehicle Transportation Award 2010 (the Award) which only allows a part time employee’s agreed hours of work to be altered by agreement. Mr Wilson considered that the Award allowed him to change Mr Benedetto’s hours of work provided he gave him sufficient notice of the roster change.

[14] Whether this unilateral change of hours of work meant that Mr Benedetto was forced to resign because of this conduct by Carbridge is not able to be determined without a full hearing. I find on the material before me that Mr Benedetto had an arguable case. I am not able to make a final determination of the merits of the claim as this would require an examination of all of the evidence. That his claim is not without merit weighs in favour of extending time.

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

[15] There was no other person in a similar position.

Conclusion

[16] Mr Benedetto’s claim for unfair dismissal was independent of any dispute over his LSL. In any event he was aware that he was not being paid his long service leave when he received his pay which was before the 11 November 2014. He still did not act promptly and waited another nine days before lodging his claim. This is not a case where the strength of Mr Bernedetto’s claim outweighs the lack of a reasonable explanation for the delay in lodging the application. I am therefore unable to find that there are exceptional circumstances which warrant the granting of an extension of time and therefore Mr Benedetto’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr N. Benedetto representing himself.

Mr B. White and Mr L. Todd representing Carbridge WA T/A Connect Buses.

Hearing details:

2015;

Melbourne:

8 January.

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