Pasquale Davide Erico Dibisceglie v Jw Air & Solar Pty Ltd
[2023] FWC 2459
•22 SEPTEMBER 2023
| [2023] FWC 2459 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Pasquale Davide Erico Dibisceglie
v
Jw Air & Solar Pty Ltd
(C2023/4506)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 22 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal
This is an edited version of my decision delivered ex tempore and recorded in transcript on 22 September 2023. I found that the Application was filed 3 days outside of the timeframe pursuant to s.366 of the Fair Work Act 2009 (Cth) and refused to grant an extension of time, the matter is dismissed.
Mr Pasquale Dibisceglie whom I will refer to as the Applicant, made an application to the Commission under section 365 of the Fair Work Act for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with JW Air & Solar Pty Ltd whom I will refer to as the Respondent, in contravention of Part 3-1 of the Fair Work Act.
Before dealing with the dispute, the Commission must be satisfied that the application was not made out of time.
Having heard the parties, I now proceed to give these reasons for my decision.
This published decision reflects the decision I gave orally at the hearing on 22 September 2023 with corrections for grammatical, syntactical and any other insignificant errors.
Subsection 1 of section 366 of the Fair Work Act provides that an application under section 365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
First, I must consider when the dismissal took effect
The parties are in dispute about when the dismissal took effect.
The Applicant submits that the dismissal took effect on 7 July 2023[1] because he was paid until that date and told he would be paid until that date.
Turning to the evidence, the Applicant’s evidence was that he was notified of the dismissal on 3 July 2023, acknowledges that he was told he would be paid notice until the end of that week (although was unclear if he was told the words “pay in lieu” were used, they may or may not have but he does remember being told he would be paid notice until Friday). The Applicant gave evidence that he told work colleagues that he was sacked and paid out for the rest of the week. I note the Applicants submissions were that he was told he was “given my notice”[2] I also note that the Applicant gave evidence that he had commenced making enquiries about his rights with respect to his dismissal within 3 days of the 3 July 2023 meeting initially in respect of its link to his recent workcover claim and then in respect to an unfair dismissal.
The Applicant also raised that there was some confusion that the Separation Certificate provided by the Respondent evidence a date of termination of 17 July 2023.[3]
The Respondent submits that the dismissal in fact took effect on 3 July 2023, when it was clearly communicated to the Applicant in a meeting on 3 July at 9am.[4]
The Respondent’s evidence provided by two witnesses Mr Wheeler and Ms Dobson both confirmed they were present at a meeting with the Applicant on 3 July 2023 at 9am and that the Applicant was told that he was being made redundant and would be paid 1 week in lieu of notice.
As noted by the Full Bench at paragraph 36 of its decision in Ayub v NSW Trains, which is at [2016] FWCFB 5500, a dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware. Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter (see the decision of the Full Bench in Foyster v Bunnings Group, which is at [2017] FWCFB 3923).
Where an employee is given notice of the termination of their employment, the dismissal will take effect at the end of the period of notice that has been given to the employee (see the decision of the Federal Court in Birrell v Australian National Airlines Commission at (1984) 5 FCR 447, which was cited by the Full Bench in, which is at [2016] FWCFB 5500), however I note that the circumstances in that case are distinguishable from this one.
Whether a dismissal takes effect immediately when payment is made in lieu of notice is a question of fact. Where the employer’s communication is clear and there is no evidence of a contrary intention, termination by payment in lieu of notice will result in immediate termination of the contract of employment when the dismissal is communicated to the employee (see Siagian v Sanel at page 185 of volume 54 of the Industrial Reports).
I accept the evidence of the Respondent which the Applicant was unable to contest, that the Applicant was terminated on Monday 3 July 2023 and that he was told he would be paid in lieu of notice. I am of the view that the date on the separation certificate was a clerical error and there was no evidence put before me that this could be considered anything else because the date on it is unrelated to any of the other evidence of the parties in respect of the date of termination.
On that basis I find that the date of termination was 3 July 2023. I note that the present application was filed on 27 July 2023 and was therefore filed 3 days out of time.
Under subsection 2 of section 366 of the Fair Work Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters listed in that subsection. Those matters are:
(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.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the reason for the delay
The Applicant submitted that the delay was for the following reasons:
· He had suffered concussion from a head injury that had occurred on 2 May 2023 that affected his ability to understand the circumstances of his termination and took him longer to act;[5]
· The Applicant gave evidence that he had been cleared to return to work on a rehabilitation plan on 3 days a week. Further that he had some difficulty depending on certain lights that he was in;
· He had contacted both the Fair Work Commission and the Fair Work Ombudsman within 3 days of the date of termination;
· He had initially made enquiries about the link to his workers compensation;
· He then contacted Caxton Legal Centre who took 1 week and 2 days to meet with in and then a further 2 days to provide advice to him. This is a total of 14 days following the date of the dismissal;
· Following receipt of that advice the Applicant gave evidence that he put it aside for some time, ‘one day turns to another’ and eventually he filed the application on 27 July 2023; and
· He submitted that he was feeling depressed and was seeking medical support in this respect however he did not put any medical evidence before the Commission to support this contention.
In relation to the reason for the delay, the Respondent made the submissions that the Applicant’s medical evidence only indicated that the Applicant ‘may’ not have fully understood his “termination details” because he was still experiencing “concussion symptoms” and that this evidence was at odds with the Applicant’s own evidence as to the actions he had taken leading to the filing of his application and his subsequent submissions.
Having considered the evidence, I find that the reasons for the delay were that the applicant was understandably upset about his dismissal, obtained advice in respect of his rights and then failed to act on that advice within the period of time required. Having regard to the evidence, I accept that the Applicant was cogent and capable to make relevant enquiries, make phone calls, seek appropriate advice, meet with legal advisors, receive and consider their advice. The Applicant then had a further 7 days to consider that advice and take action however he failed to do so within the required time frame because in his words “one day turned into another”.
The next matter I must consider is the action, if any, taken by the Applicant to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 27 July 2023.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I consider this weighs in favour of granting an extension, albeit slightly.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application. I therefore find this to be a neutral consideration in my assessment of whether there are exceptional circumstances.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account each of the matters I have just considered under section 366
As set out by the Full Bench at paragraph 13 in the decision of Nulty v Blue Star Group, which is at [2011] FWAFB 975, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may 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 can be considered exceptional.
Whilst I acknowledge the Applicant will have been distressed about this situation, the stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist (see the Full Bench’s decision in Becke v Edenvale Manor Aged Care at [2014] FWCFB 6809).
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist. This is made clear in the Full Bench decisions of Ellikuttige v Moonee Valley Racing Club at [2018] FWCFB 4988 and Weir v Hydro-Chem at [2017] FWCFB 758.
Further, it was clear the Applicant had advice about his rights and the Applicant made no submission that he was ignorant of the statutory time limit, I note that even the Applicant did claim not to be aware of the statutory time limit, that would not constitute an exceptional circumstance. This is made clear in the Full Bench decisions in Nulty v Blue Star Group at [2011] FWAFB 975 and Miller v Allianz Insurance Australia at [2016] FWCFB 5472.
Having regard to all of the matters listed at subsection 2 of section 366 of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. I order accordingly.
DEPUTY PRESIDENT
Hearing in Brisbane 22 September 2023
[1] DCB p4.
[2] DCB p6, A1.
[3] DCB p26.
[4] DC pp24-33, R1 and Rd.
[5] DCB p14, A1.
Printed by authority of the Commonwealth Government Printer
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