Piero Lalli v Duo Trading Pty Ltd

[2021] FWC 659

[2021] FWC 659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Piero Lalli
v
Duo Trading Pty Ltd
(U2021/488)

COMMISSIONER WILSON MELBOURNE, 15 FEBRUARY 2021

Application for an unfair dismissal remedy – extension of time; whether “exceptional circumstances” – no exceptional circumstances - application dismissed

[1] This decision concerns an application made by Piero Lalli alleging unfair dismissal against Duo Trading Pty Ltd (Duo or the Respondent). Mr Lalli left the Respondent premises on Wednesday, 16 December 2020 and received a termination letter dated Friday, 18 December 2020. Mr Lalli’s application for unfair dismissal remedy was lodged in the Fair Work Commission on Tuesday, 19 January 2021.

[2] For the reasons that follow I find that the date Mr Lalli’s dismissal took effect was Wednesday, 16 December 2020.

[3] Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates referred to above Mr Lalli’s application was made outside of the statutory time limit, with it having been made after the expiry of the 21 day time period allowed for by the FW Act, which ended on Wednesday, 6 January 2021.

[4] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Lalli’s application. It is to be noted that Duo object to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.

[5] Evidence was received from Mr Lalli on his own behalf and from Mr Peter Fergusson, the Respondent’s Managing Director. A short Witness Statement was filed by Mr Ben Fergusson, the Respondent’s General Manager however he did not give oral evidence in the hearing before me, owing to his unavailability due to illness on the date of the hearing. While I have received the statement as an exhibit, I have placed little weight on its contents, preferring instead the oral evidence of Mr Peter Fergusson.

[6] In considering an application for an extension of time for the making of an unfair dismissal application, the FW Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion 1 and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.2

[7] I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Mr Lalli’s case and an extension of time should not be granted for the making of his unfair dismissal application.

BACKGROUND

[8] Mr Lalli commenced employment with Duo on 15 August 2017. Mr Lalli’s position was as a warehouse/distribution person and he holds a light rigid truck license.

[9] There is dispute between the parties as to the events on Wednesday, 16 December 2020 triggering the dismissal. There is also inconsistency between the parties in their written materials as to the date Mr Lalli was notified of his dismissal and the date Mr Lalli’s dismissal took effect.

Events on Wednesday, 16 December 2020 triggering the dismissal

[10] Mr Lalli submits that he was notified to leave the Respondent premises on Wednesday, 16 December 2020 after he refused to perform a task assigned by the Respondent as he viewed the task as being outside of his job description. 3 He provided by way of background that he returned to work on Wednesday, 16 December 2020 after being on a period of sick leave in the previous week. His account of the event is that he felt overwhelmed with the stockpile that he was assigned and that he felt pressure to resume his role. He provides that he raised his concerns with Senior Management when he was requested to “leave my daily duties and workstation and clean rubbish up on a vacant block.”4

[11] The Respondent views the events on Wednesday, 16 December 2020 differently. They assert that as Mr Lalli was the only employee at Duo who held a light rigid truck license that:

“An integral part of the applicant’s position was driving the company truck and something that occurred daily. This duty was refused by the applicant without sighting any grounds as to why he couldn’t carry out his duty which we do not deem to be an unusual request to an employee in a warehouse / distribution position.” 5

[12] The Respondent asserts that Mr Lalli was asked whether he was ready to drive the company truck around to their old warehouse to assist with the clean-up of the site. Mr Ben Fergusson, the Respondent’s General Manager provided in his Witness Statement that Mr Lalli responded to the request that the task was outside of his job description and Mr Fergusson provided Mr Lalli the opportunity to leave if he maintained that attitude. Mr Lalli then left the premises and as he did so “proceeded to provide other employees with a verbal opinion of what he thought of them on his exit from his position as inappropriate and rude what the comments were and certainly no way someone should conduct themselves.”  6 Mr Peter Fergusson, the Respondent’s Managing Director in his evidence also recalled that Mr Lalli left the premises making unpleasant remarks and gestures. Duo maintains that Mr Lalli’s termination of employment was at his initiative, with him having abandoned his employment when he let Duo’s premises.

[13] Mr Lalli submits that he provided a medical certificate to the Respondent, the certificate covered the period Wednesday, 16 December to Thursday, 24 December 2020 inclusive. 7 A copy of the medical certificate is before the Commission. In his oral evidence, Mr Lalli recounted that he formed the view on Wednesday, 16 December 2020 that he had been dismissed as he saw a Facebook post from the company advertising his position approximately one hour after he left the Respondent premises. His oral evidence confirmed that the medical certificate was obtained after he formed the view that he had been dismissed. The certificate was provided to the Respondent by way of email on Thursday, 17 December 2020.8 It is accepted by me that the medical certificate was obtained after the dismissal event.

Notification of dismissal and the date the dismissal took effect

[14] Mr Lalli in his initiating application provides the date he was notified of his dismissal and the date his dismissal took effect was Wednesday, 16 December 2020. In his submissions on the jurisdictional matter, he provides both dates as Friday, 18 December 2020.

[15] Duo in its Form F3 – Employers Response to Unfair Dismissal Application provides the date Mr Lalli was notified of his dismissal as Friday, 18 December 2020 and the date Mr Lalli’s dismissal took effect was Wednesday, 16 December 2020. In its submissions on the jurisdictional matter, Duo provides both dates as Friday, 18 December 2020.

[16] On the material before the Commission, I find that the date Mr Lalli’s dismissal took effect was Wednesday, 16 December 2020. As a consequence, for his unfair dismissal application to be within time, it would have had to be filed no later than Wednesday, 6 January 2021, when in fact it was lodged on Tuesday, 19 January 2021, 13 days out of time.

LEGISLATION

[17] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:

“394 Application for unfair dismissal remedy

(1) ….

(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.”

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[18] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria.

[19] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”  9 

[20] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 10

[21] In considering whether an extension of time should be granted to Mr Lalli, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[22] The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 11 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.12 An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.13 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.14

[23] The delay to be considered in matters such as these is the delay in making the application after the expiry of the statutory time limit. In Mr Lalli’s case the relevant period to be considered is that after the last day for a lodgement to be within time, Wednesday, 6 January 2021.

[24] In his oral evidence, Mr Lalli recalled that the reasons for the delay in filing the application was that:

•  for the period Wednesday, 16 December to Thursday, 24 December 2020 he was covered by a medical certificate;

•  for a period of 15 days commencing on Thursday, 24 December 2020 he was on a family holiday.

[25] He reported that he did not take steps to research his rights until Saturday, 9 January 2021 being 24 days after his dismissal took effect. He then filed a claim with Employee Dismissal Claims Australia on Monday, 11 January 2021 and received a reply from them on Tuesday, 19 January 2021 at which time he filed the application in the Commission. His evidence as to why he contacted Employee Dismissal Claims Australia was that he did not have to pay money.

[26] Mr Lalli attributes part of the delay in making his application to making a claim with Employee Dismissal Claims Australia on Monday, 11 January 2021 and not being notified until Tuesday, 19 January 2021 that the organisation was not taking any additional claims. 15 He also submits that:

“I submitted by unfair dismissal claim to the incorrect authority. As it was over the Christmas/New year holiday period, I considered their response to be delayed as a result. It was only later I realised my error and quickly rectified.” 16

[27] As Mr Lalli’s dismissal took effect on Wednesday, 16 December 2020, his evidence of contacting Employee Dismissal Claims Australia or of submitting an unfair dismissal claim to the incorrect authority on Monday, 11 January 2021 does not support an extension of time being granted since that date itself is outside of the 21 day time limit prescribed by the FW Act. Further, his evidence that he did not start researching his rights until Saturday, 9 January 2021 due to being on a family holiday does not support an extension of time as that does not ground a reasonable basis for being unable to take steps to dispute his dismissal.

[28] Mr Lalli also submits that as he was covered by a medical certificate for the period of Wednesday, 16 December to Thursday 24 December 2020 and that his dismissal could not take effect until the expiry of that period. 17 This submission alone also does not support granting an extension of time, as there is no evidence that Mr Lalli was so incapacitated by illness as to be unable to attend to his affairs, including making an unfair dismissal application.

[29] It follows that Mr Lalli has not provided the Commission with an acceptable explanation for the delay in making his unfair dismissal application.

[30] Accordingly, my assessment is that consideration of this criterion does not resolve in favour of Mr Lalli for the granting of an extension of time for the making of his application.

2. Whether the person first became aware of the dismissal after it had taken effect

[31] Mr Lalli gave oral evidence that he first formed the view that he was no longer employed by Duo after viewing a Facebook post advertising his position on Wednesday, 16 December 2020, a few hours after he left Duo’s premises. He received written confirmation that Duo no longer required his services in a letter dated Friday, 18 December 2020. This is therefore not a circumstance where the Applicant only became aware of Duo’s decision an extended time after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[32] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 18

[33] The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time” 19 (underlining added).

[34] Mr Lalli responded to the company’s Friday, 18 December 2020 letter on the same day disagreeing with its contents and seeking clarification on his position with the company. The Respondent in a letter dated Tuesday, 22 December 2020 confirmed the Respondent viewed Mr Lalli as having abandoned his employment with immediate effect on Wednesday, 16 December 2020. Mr Lalli provided a further response to Duo advising he would “take his grievances to fair workplace standards” and that he had “obtained some professional advice on this matter.” 20

[35] While Mr Lalli disputed what Duo had done, I do not hold the view that consideration of this criterion resolves in his favour. It is not the case that the delay in making this application was contributed to by difficulties in resolving the dispute Mr Lalli had brought to Duo’s attention.

4. Prejudice to the employer (including prejudice caused by the delay)

[36] The delay in the filing of the application is 13 days.

[37] The Respondent asserts that Mr Lalli has not provided any reasonable grounds for the application being filed late. 21 Beyond this, the Respondent has not provided any written submissions as to prejudice it may face if the application were to proceed and Mr Peter Fergusson in his oral evidence confirmed there was likely to be little prejudice suffered by the Respondent as it’s circumstances had not altered.

[38] Consideration of this criterion is a neutral factor in considering whether there were not exceptional circumstances.

5. The merits of the application

[39] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[40] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters. 22 Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.23

[41] There is limited material before me addressing the merits of Mr Lalli’s application. The Respondent has provided in support of its position two warning letters issued to Mr Lalli for his performance during his employment. Mr Lalli accepts that he was issued with the first of these, from October 2019, but disputes the one dated 18 September 2020 was ever given to him.

[42] Mr Peter Fergusson in his evidence claimed that the company could not rely on Mr Lalli being present at work due to taking periods of sick leave.

[43] The material before me at this time is inconclusive on most matters. While it is likely a full hearing would lead to a finding Mr Lalli had been dismissed as a result of the argument he had with Mr Ben Fergusson on Wednesday, 16 December 2020, there is less clarity as to whether a finding of unfair dismissal would follow. While such is possible, it is not in a “high prospects” category, and there are factors in the likely narrative from both parties that may lead to a finding he was not dismissed unfairly. The uncertainties about each party’s case lead me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of Mr Lalli’s unfair dismissal application.

6. Fairness as between the person and other persons in a similar position

[44] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 24 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.25 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for the same underlying issue.26

[45] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Lalli.

[46] As a result, Mr Lalli’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr P. Lalli for himself

Mr P. Fergusson for the Respondent

Hearing details:

2021.
Melbourne (via video conference);
12 February.

Printed by authority of the Commonwealth Government Printer

<PR726806>

 1   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].

 3   Form F2, Unfair Dismissal Application, 19 January 2021, item 3.1.

 4   Exhibit A1, Applicant Outline of Submissions on Jurisdictional Objection, 1 February 2021, item 7.

 5   Form F3, Employer Response to Unfair Dismissal Application, 20 January 2021, item 3.2.

 6   Witness Statement of Ben Fergusson, 9 February 2021.

 7   Exhibit A1, Applicant Outline of Submissions on Jurisdictional Objection, 1 February 2021, item 3.

 8   Exhibit A3, Applicant Document, Letter to Ben Fergusson, 18 December 2020.

 9   Nulty v Blue Star Group, 2011, 203 IR 1, [13].

 10   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

 12   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].

 13   Ibid, [40].

 14   Ibid, [41].

 15   Form F2, Unfair Dismissal Application, 19 January 2021, item 1.5.

 16   Exhibit A1, Applicant Outline of Submissions on Jurisdictional Objection, 1 February 2021, item 6.

 17   Ibid, item 4.

 18   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

 19   Ibid.

 20   Exhibit A3, Applicant Document, Second Letter to Ben Fergusson, 22 December 2020.

 21   Form F3, Employer Response to Unfair Dismissal Application, 20 January 2021, item 2.2.

 22   Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].

 23   Haining v Deputy President Drake (1998) 87 FCR 248, [250].

 24   Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

 25   Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].

 26   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].