Nino Albanese v Miss Mai

[2015] FWC 8882

[2015] FWC 8882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nino Albanese
v
Miss Mai
(C2015/835)

DEPUTY PRESIDENT KOVACIC CANBERRA, 22 DECEMBER 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Nino Albanese (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 20 April 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Miss Mai (the Respondent) on or about 29 January 2015 in contravention of the general protections provisions in the Act. The Respondent contends that Mr Albanese was advised of his dismissal on 1 March 2015.

[2] As the application had, based on Mr Albanese’s application, been lodged 59 days outside the statutory timeframe for lodgement set out in s.366(1) of the Act, the Commission issued Directions on 4 May 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[3] In his written submissions, Mr Albanese submitted that his employment had been terminated on 28 February 2015 and that his application was lodged on 16 April 2015 (the date it was signed). Even if the revised termination date is relied upon, his application was still lodged 30 days outside the 21 day timeframe based on the fact that the application was not received by the Commission until 20 April 2015. If 1 March 2015, is relied upon as the date of dismissal, the application was lodged 29 days outside the statutory timeframe.

[4] The application was the subject of a telephone hearing on the extension of time issue on 14 September 2015. At the telephone hearing Mr Nick Wockle appeared with permission for Mr Albanese, while Mr Warren Jones, the Respondent’s Manager, appeared for the Miss Mai.

[5] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[6] Mr Albanese commenced employment with the Respondent on 11 January 2015.

[7] Mr Albanese submitted that he was dismissed because of his sexual orientation. In his application, Mr Albanese contended that his dismissal was in contravention of s.351 of the Act which, among other things, deals with protection related to discrimination based on sexual orientation. The Respondent contended that Mr Albanese was dismissed as a result of a lack of professionalism towards its customers. The Respondent further disputed that Mr Albanese was treated differently from other employees.

[8] More particularly, Mr Albanese stated that he introduced his partner, Mr David Foster, to Mr Jones on or about 30 January 2015. Mr Albanese further stated that shortly thereafter Mr Jones sent him a text message to the effect that under no circumstances could he tell anyone at work of his sexual orientation. When Mr Albanese later asked Mr Jones about the reason for his message, Mr Jones’ response was he did not mind that Mr Albanese was homosexual but that he did not want anyone else to know, particularly his wife as he was not sure how she would react.

[9] Mr Albanese further contended in his application that during his employment he received positive feedback regarding his performance, including being asked to train another employee. Mr Albanese also acknowledged in his application that a number of performance issues were raised with him, e.g. talking too much at work and putting too much meat in sandwiches.

[10] On or about 27 February 2015 Mr Albanese was invited out to lunch by one of his co-workers, Angela, who he later discovered was Mr Jones’ daughter. Mr Albanese asked if Mr Foster could accompany them, which is when he informed her that he was homosexual. Mr Albanese stated in his application that she did not appear to be concerned about his sexual orientation.

[11] In subsequent developments, Mr Albanese stated that on 29 [sic 28] February 2015 he received a text message from Mr Jones indicating that he was no longer suited to Miss Mai and there were no available shifts for him. Mr Albanese contended the reason for his dismissal was for his sexual orientation and for no other reason.

[12] As noted above, Mr Albanese’s application was received by the Commission on 20 April 2015, either 29 or 30 days outside the statutory timeframe specified in s.366(1)(a) of the Act depending on the date of dismissal relied upon.

The Relevant Legislation

[13] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Whether to allow a further period for the application to be made

[14] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[15] The primary ground relied upon by Mr Albanese as to why his application was lodged out of time was that he suffers from difficulties with reading and writing such that he was unable to comprehend the contents of the Form F8 – General Protections Application Involving Dismissal and was therefore unaware of the time limit for bringing a general protections application. That submission was supported by witness statements from Mr Foster, Ms Rebekah Sabatino, Mr Shane Wilson and Mrs Louise Reginato (Mr Albanese’s mother), who all attested to his literacy difficulties. Mr Albanese further submitted that his mental condition at the time of the application constituted exceptional circumstances enlivening the Commission’s discretion to grant an extension of time. Mr Albanese also submitted that he was informed by a friend after the expiry of the 21 day period of the statutory timeframe for bring a general protections application.

[16] At the hearing, Mr Albanese contended that he had contacted the Commission about a week after he had been dismissed and left two messages with his contact details. Mr Albanese further contended that the Commission did not call him back. In response to a question from the Commission as to what phone number Mr Albanese contacted the Commission on, he initially indicated that he could not recall but shortly thereafter provided a number which he read from correspondence he received from the Commission. As to the mental condition referred to in his submissions, Mr Albanese clarified that this was a reference to his literacy issues. Mr Albanese also submitted that as he was not aware of the 21 day timeframe, he did not think there was a sense of urgency in submitting his application.

[17] At the telephone hearing the Respondent conceded that Mr Albanese had literacy issues and stated that it had no basic objection to an extension of the timeframe.

[18] I will deal first with Mr Albanese’s submission that he contacted the Commission shortly after he had been dismissed but that his calls were not returned. Unfortunately, the Commission does not keep records of such calls. Hence there is no way of verifying Mr Albanese’s claim. However, I consider it noteworthy that this issue was first raised at the telephone hearing and not referred to in Mr Albanese’s written submissions. In the absence of any evidence to support Mr Albanese’s submission, I attach little weight to the submissions on this point.

[19] As to Mr Albanese’s literacy issues, while I acknowledge the difficulty they present, I find it difficult to comprehend why Mr Albanese did not seek assistance from Mr Foster (or any of the other persons who filed witness statements in support of his application) if he was having difficulty comprehending the Form F8. Further, he could have visited the Commission’s offices and discussed his circumstances, particularly in view of his submission that the Commission did not respond his phone messages. While Mr Albanese did ultimately seek legal advice from the Housing Legal Clinic (HLC – see below), I note that he first attended the HLC on 5 April 2015 which is after the 21 day statutory timeframe had expired.

[20] Finally, with regard to Mr Albanese’s submission that he was not aware of the 21 day timeframe for making a general protections application, I note that in Cheyne Leanne Nulty v Blue Star Group (Nulty) 1a Full Bench of the then Fair Work Australia determined that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[21] The above analysis, together with the decision in Nulty, does not support a finding of the existence of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[22] Mr Albanese submitted that once he became aware of the timeframe for making a general protections application that he sought legal assistance, initially from the Roma Mitchell Legal Centre and subsequently from the HLC, with his application filed shortly thereafter. In his application, Mr Albanese stated that he visited the Respondent following his dismissal but provided no details as to when those visits occurred and what was discussed.

[23] The Respondent acknowledged at the telephone hearing that Mr Albanese had visited the shop twice after his dismissal but did not speak with Mr Jones or his wife on either of those occasions.

[24] Based on the material before the Commission, it appears that Mr Albanese did not take any action to dispute his dismissal prior to lodging his general protections application. This does not support a finding that there were exceptional circumstances.

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

[25] Mr Albanese submitted that this was a neutral consideration as the Respondent would not be prejudiced should an extension of time be granted.

[26] At the telephone hearing, the Respondent agreed that it would not be prejudiced were an extension of time granted.

[27] I therefore consider the issue of prejudice to be a neutral consideration.

(d) The merits of the application

[28] Mr Albanese maintained in his submissions that he had been terminated for reasons related to his sexual orientation, contending that the Respondent’s written submissions did not adequately address the reasons for his dismissal.

[29] The Respondent submitted that there is little evidence to support Mr Albanese’s case.

[30] Little material was put before the Commission to substantiate Mr Albanese’s claim that he was dismissed because of his sexual orientation. In the absence of any evidence to that effect, I consider the merits of Mr Albanese’s application to be poor.

[31] As such, the merits of the application do not support the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[32] Mr Albanese did not address this consideration in his submissions.

[33] The Respondent submitted that at no time was Mr Albanese treated unfairly or differently to other employees.

[34] Against that background, I consider this factor to be a neutral consideration.

Conclusion

[35] The question of exceptional circumstances was dealt with in Nulty in the following way:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[36] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[37] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

Appearances:

N.Wockle for the Applicant.

W.Jones for the Respondent.

Hearing details:

2015.

Canberra and Adelaide (telephone hearing):

September 14.

 1 (2011) 203 IR 1

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