Pellegrino Coppola v Independent Cleaning WA Pty Ltd

[2015] FWC 3070

[2015] FWC 3070

The attached document replaces the document previously issued with the above code on 4 May 2015.

On page one, the Respondent’s name in the party details has been changed:

from

Independent Cleaning WA Pty Ltd T/A Strzelecki Group

to

Independent Cleaning WA Pty Ltd

Lauren Thomas

Associate to Deputy President Gooley.

Dated 20 May 2015

[2015] FWC 3070 [Note: An appeal pursuant to s.604 (C2015/4405) was lodged against this decision - refer to Full Bench decision dated 9 September 2015 [[2015] FWCFB 5262] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pellegrino Coppola
v
Independent Cleaning WA Pty Ltd
(U2014/15801)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Pellegrino Coppola alleged that the termination of his employment by Independent Cleaning WA Pty Ltd (Independent Cleaning) on 5 November 2014 was unfair.

[2] Mr Coppola’s unfair dismissal application lodged on 9 December 2014 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] 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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Mr Coppola said he did not lodge his application within 21 days because he was not aware of the 21 day time limit. He further submitted that there was delay because the form had to be sent out to him and he needed assistance completing the form. He also said that this clashed with his already planned and paid for holiday. He said he did not have a computer while he was away. However, Mr Coppola did not go on holiday until after he had lodged the application.

[6] Mr Coppola said he tried to contact Fair Work but it was difficult to get through. He then spoke to someone at Fair Work and was told that he had until the following day to lodge his application. He found that hard to do so he let it go. He then rang the Perth office a few days later and he was told to come in and get the forms, which he did, and then he got someone to help him complete the form.

[7] Mr Coppola’s application had to be filed by 26 November 2014. On his own evidence, he knew on 25 November 2014 that he had 21 days to complete the form and it needed to be lodged the next day. However, he did not lodge it until 9 December 2014.

[8] Mr Coppola submitted that he was in shock as a result of his dismissal. He submitted he was depressed, had sleepless nights and felt useless. He also gave evidence of some personal problems.

[9] Independent Cleaning submitted that Mr Coppola’s explanation is not a reasonable explanation for the delay. Independent Cleaning also submitted that I should have regard to Mr Coppola’s failure to comply with the original direction given in this matter which caused further delay. That is, however, not relevant to my assessment of the reasons for the delay as it is the reasons for delay in lodging the application which is relevant to a finding of exceptional circumstances.

[10] I do not consider that Mr Coppola has a reasonable explanation for the delay. It is not unusual for employees to be ignorant of the time limits which apply. Further, Mr Coppola then became aware of the time limit but still delayed lodging his application. It is also not unusual for employees to be distressed at losing their job. However, in this case Mr Coppola had been on notice from 22 October 2014 that his employment would end on 5 November 2014 and he therefore had additional time to make enquiries about his rights and to get help with the process.

[11] I consider that Mr Coppola’s explanation for the delay does not weigh in favour of extending time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[12] Mr Coppola was aware of the dismissal before it took effect, so he had the full 21 days to lodge his application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[13] Mr Coppola gave no evidence of any action he took to dispute the dismissal. This weighs against extending time.

(d) prejudice to the employer (including prejudice caused by the delay);

[14] Independent Cleaning submitted that it had employed a replacement employee and there is no position for Mr Coppola. I accept that an order for reinstatement may cause prejudice to the employer, however, I do not consider that this prejudice weighs against extending time.

(e) the merits of the application;

[15] Mr Coppola submitted that the reasons relied upon by Independent Cleaning to dismiss him were not valid. Independent Cleaning submitted that the dismissal was consistent with the Small Business Fair Dismissal Code. It relied upon letters of warning given to Mr Coppola.

[16] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider the merits of the matter to be neutral.

(f) fairness as between the person and other persons in a similar position.

[17] No relevant submissions were made on this criterion.

Conclusion

[18] I find that there are no exceptional circumstances. This is not a case where the merits of the application outweigh the lack of a reasonable explanation for the delay in lodging the application. An extension of time will not be granted and the matter must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr P Coppola on his own behalf.

Mr A Thorpe for the Respondent.

Hearing details:

2015.

Hearing via telephone:

1 May.

 1   [2011] FWAFB 975.

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