Pasquale De Angelis v Codess Interiors Pty Ltd
[2018] FWC 3846
•10 JULY 2018
| [2018] FWC 3846 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pasquale De Angelis
v
Codess Interiors Pty Ltd
(U2018/3179)
DEPUTY PRESIDENT DEAN | SYDNEY, 10 JULY 2018 |
Application for an unfair dismissal remedy.
[1] Mr Pasquale De Angelis was employed by Codess Interiors Pty Ltd (Codess) until he was dismissed on 28 February 2018.
[2] On 26 March 2018 Mr De Angelis lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act)claiming that he had been unfairly dismissed by Codess. His application was made five days outside the 21 day period prescribed by s.394(2) of the Act.
[3] The matter was listed for hearing on 4 July 2018 to determine whether Mr De Angelis should be granted an extension of time pursuant to s.394(3) of the Act to make his application. At the hearing Mr De Angelis appeared on his own behalf and Mr J Gould appeared with permission on behalf of Codess.
[4] Section 394(3) of the Act provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.
[5] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Mr De Angelis.
[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:
“[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.”
[7] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[8] Mr De Angelis submitted that the principle reason for the delay in filing his application was that his mother-in-law was terminally ill and was admitted into the intensive care unit of a hospital on 14 March 2018. Mr De Angelis further submitted that:
“This was a very distressful and traumatic period for my family and I and whilst under duress I lost track of timeframes hence why my application was late as I want [sic] not in a good frame of mind as my time was spent supporting and caring from my family and my father in law whilst my wife took care of her terminally ill mother.”
[9] Mr De Angelis’ mother-in-law passed away the day after this application was filed.
[10] At the hearing, Mr De Angelis confirmed the matters set out in his written statements of 18 May and 4 June 2018 and expanded on some aspects of those statements.
[11] In response, Codess submitted that there were no exceptional circumstances demonstrated by Mr De Angelis which would warrant the granting of an extension of time. Codess submitted that:
“Dealing with the death of someone is what most people deal with from time to time and are required to carry on with their the payment of bills, taking children to school, visiting the sick in hospital. The Applicant does not produce a medical certificate in relation to personal health issue arising from his mother in law’s hospitalisation.”
[12] Mr Gould made further oral submissions on behalf of Codess during the hearing which supplemented its written submissions.
[13] While I am sympathetic to Mr De Angelis’ circumstances, I do not accept that he has provided satisfactory explanation for his failure to lodge the unfair dismissal application within the statutory time period. There was no evidence that he was incapacitated or that there were any impediments which had prevented him from lodging the application within time. This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[14] There is no dispute that Mr De Angelis was advised of his dismissal on 28 February 2018. I find that this this weighs against a conclusion that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[15] There is no suggestion that Mr De Angelis took any action to dispute his dismissal until the present application was lodged. I find that this weighs against a conclusion that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[16] I am not persuaded that granting an extension of time would result in a prejudice to Codess. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[17] For the purpose of determining whether to grant an extension of time for Mr De Angelis to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’2
[18] Mr De Angelis maintains that he was unfairly dismissed as he believed the duties of an installer did not fall within the scope of his job description.
[19] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[20] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4
[21] I do not consider that there are other relevant persons in a similar position to Mr De Angelis, and I therefore find it to be a neutral consideration.
Conclusion
[22] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Mr De Angelis are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
[23] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
P De Angelis, on his own behalf.
J Gould, for Codess Interiors Pty Ltd.
Hearing details:
2018.
Sydney:
July 4.
Printed by authority of the Commonwealth Government Printer
<PR608563>
1 [2011] FWAFB 975.
2 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
3 [2015] FWC 8885.
4 Ibid at [29].
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