Numeiri Daggash v La Casa Del Formaggio
[2010] FWA 8306
•28 OCTOBER 2010
[2010] FWA 8306 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
Numeiri Daggash
v
La Casa Del Formaggio
(U2010/8151)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 28 OCTOBER 2010 |
Termination of employment - jurisdiction - 100 employees or fewer - extension of time.
[1] This decision deals with preliminary issues relative to an application made by Mr Daggash pursuant to section 643 of the Workplace Relations Act 1996 (the WR Act), with respect to the termination of his employment by La Casa Del Formaggio (La Casa). I note at the outset that La Casa Del Formaggio is the registered business trading name for La Casa Del Formaggio Pty Ltd.
[2] The termination of Mr Daggash’s employment occurred on 15 April 2009. As a consequence, the WR Act which applied at that time, has application. By virtue of Schedule 2 of Part 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the function of the Australian Industrial Relations Commission (the Commission) with respect to section 643 are referred to Fair Work Australia.
[3] Mr Daggash’s application was made on 21 April 2010. Accordingly, Mr Daggash seeks an extension of time in which to lodge the application.
[4] On 4 May 2010 EMA Consulting, representing La Casa lodged a notice of employer’s appearance in which it objected to the granting of an extension of time but did not object to the matter initially proceeding to conciliation.
[5] Consistent with the practice generally adopted by the Commission, Mr Daggash’s application was listed for conciliation before me on 11 May 2010. At an early point in this conference, the conference had to be abandoned, as Mr Daggash became unwell and agitated. The matter was consequently adjourned pending his recovery.
[6] After this conference I advised La Casa of the likely delay and sought confirmation of the employer position with respect to future proceedings. On 17 May 2010 I received advice of a changed employer position such that La Casa confirmed its objection to the granting of an extension of time and additionally asserted that the application could not be made on the basis that at the time of the termination of Mr Daggash’s employment, it employed fewer than 100 employees. La Casa sought that these preliminary matters be determined “on the papers” pursuant to sections 647 and 648 of the WR Act.
[7] It is appropriate to pause at this point and deal with the legislative requirements impacting on Mr Daggash’s application.
[8] The WR Act which applied to Mr Daggash’s circumstances provided for a qualified capacity to make an application for relief with respect to a termination of employment. Section 643 sets out this capacity. Whilst it is not necessary that I recite the entirety of this section, I note that Mr Daggash’s application is made pursuant to section 643(1)(a) on the ground that the termination of his employment was harsh, unjust or unreasonable.
[9] Subsections 643(10), (11) and (12) state:
“(10) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if, at the relevant time, the employer employed 100 employees or fewer, including:
(a) the employee whose employment was terminated; and
(b) any casual employee who had been engaged by the employer on a regular and systematic basis for at least 12 months;
but not including any other casual employee.
(11) For the purposes of calculating the number of employees employed by an employer as mentioned in subsection (10), related bodies corporate (within the meaning of section 50 of the Corporations Act 2001) are taken to be one entity.
(12) For the purposes of subsection (10):
(a) the relevant time is the time when the employer gave the employee the notice of termination, or the time when the employer terminated the employee’s employment, whichever happened first; and
(b) for the purposes of calculating the number of employees employed by the employer, employee has the same meaning as in paragraph (b) of the definition of that term in section 636.”
[10] Consequently, if La Casa, including any related bodies corporate, employed fewer than 100 employees at the relevant time, Mr Daggash is excluded from being able to pursue his application.
[11] I have referred to this as the 100 employee issue.
[12] Secondly, subsection 643(14) requires that an application must be lodged within 21 days after the day the termination took effect. However, this subsection granted a discretion to the Commission to extend this time limit. The general approach adopted by the Commission in this respect was set out in the Industrial Relations Court of Australia decision in Brodie-Hanns v MTV Publishing Ltd 1. This approach involves consideration of the following factors:
“1. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. The explanation for the delay is significant.
2. Action taken by the applicant to contest the termination, other than applying under the Act may be relevant. It may show that the termination decision is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay may go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the discretion to extend time.”
[13] I have referred to this as the extension of time issue.
[14] Other parts of the WR Act are relevant to Mr Daggash’s application.
[15] Firstly, section 645 mandated that an employer could move for the dismissal, on jurisdictional grounds, of an application made under section 643 at any time, including a time before the Commission had begun dealing with the application. In relation to any such initial request, the Commission was obliged, on request, to deal with the jurisdictional complaint before taking any further action to progress the application.
[16] This means that I am obligated to deal with the jurisdictional objections now pursued by the employer before taking any further action relative to this application.
[17] Secondly, section 647 provided the Commission with the capacity to determine an extension of time issue on the basis of written materials, without a hearing. Further, section 648 provided the Commission with the capacity to determine the 100 employee issue without a hearing.
[18] Mr Daggash’s application was, for a time, referred to Acton SDP in my absence. Subsequent to medical advice that Mr Daggash was capable of pursuing the application again, the matter was referred back to me in early September 2010.
[19] I issued directions on 13 September 2010. In these directions I indicated that I would deal with both preliminary matters on the basis of written material which the parties were invited to provide within specified time periods. I decided not to convene a hearing because of the medical advice that this would be a stressful event for Mr Daggash, because of language difficulties and because it appeared to me that such an approach was more appropriate to these circumstances.
[20] The directions I issued on 13 September 2010 provided an extended time period for Mr Daggash’s responses to allow him time to obtain interpretive assistance. In these directions I noted that a Mr Angok, a social worker with the South Australian public sector was assisting Mr Daggash. My directions set out the time period within which Mr Daggash and La Casa were required to provide and then respond to each other’s material relative to the 100 employee issue and the extension of time issue. My directions made clear that I proposed to reach a decision on these matters on the material provided to me.
[21] I have subsequently received submissions from both parties.
[22] Mr Daggash was clearly suffering from an illness which has the potential to represent an acceptable reason for the very long delay in lodging of the application. However, there is no utility in considering the extension of time issue if Mr Daggash is excluded from making an application because of the 100 employee issue. Consequently, I have initially considered this issue.
[23] La Casa has provided a statutory declaration made out by Mr Claude Cicchiello, as Managing Director. This statutory declaration relevantly states:
“1. As at 15 April 2009, the date on which Mr Daggash was terminated, La Casa Del Formaggio employed:
8 full-time employees;
3 part-time employees; and
20 casual employees (engaged on a regular and systematic basis for at least 12 months)
2. As at 15 April 2009, La Casa Del Formaggio had related bodies corporate, but none of them employed any staff.
3. Attached to this declaration is a list of all employees as at 15 April 2009 by employment category and start date.”
[24] Mr Daggash has not provided any information which disputes these employee numbers, or the relevant time.
[25] As a consequence, I have concluded that Mr Daggash is excluded from making an application pursuant to section 643(1)(a) as a consequence of section 643(10). The absence of any contest with respect to the number of employees engaged by La Casa distinguishes this situation from the majority position adopted by a Full Bench of the Commission in Layton v North Goonyella Coal Mines 2 in that as there is no contest about the 100 employee issue, that jurisdictional issue may be determined first.
[26] Mr Daggash’s application must be dismissed in accordance with the WR Act. An Order [PR503168] to this effect will be issued. This Order does not mean that the application is without merit, but simply that there is no jurisdiction under which it may be considered.
SENIOR DEPUTY PRESIDENT
1 (1995) 67 IR 298
2 [2007]AIRCFB 713
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