Ramon Gaggino v Central Cleaning Supplies (Australia) Pty Ltd

[2014] FWC 5818

[2014] FWC 5818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ramon Gaggino
v
Central Cleaning Supplies (Australia) Pty Ltd
(U2014/7929)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 22 AUGUST 2014

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] The following is an edited version of a decision handed down in transcript at the conclusion of the hearing on an application for an extension of time for the making of an unfair dismissal application.

[2] In this case, Mr Ramon Gaggino (the Applicant) made an application on 18 June 2014 under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy regarding his dismissal by Central Cleaning Supplies (Aust) Pty Ltd (the Respondent) on 19 May 2014. The application was made 30 days after the dismissal which is outside the 21 day timeframe specified in s.394(2) of the Act. Mr Gaggino requested that, in accordance with s.394(3) of the Act, the Fair Work Commission (the Commission) allow a further period for the application to be made.

[3] In his application, Mr Gaggino states that:

“I have never been in a situation (in almost 40 years of working) where my employment was terminated for reasons other than redundancy. I was therefore not fully aware of my rights & entitlements. I only became aware that I may have a claim for unfair dismissal during a discussion with an acquaintance on Wednesday 11.06.14.

I investigated the matter further on Friday 13.06.14. ...” 1

[4] In short, Mr Gaggino only became aware of the scope for him to make an unfair dismissal claim on 11 June 2014. This was 23 days after his dismissal and again outside the 21 day timeframe specified in the Act.

[5] At the hearing, Mr Gaggino submitted that he received one week’s pay in lieu of notice when he was terminated and that that one week should be taken into account. If the week’s notice were taken into account, Mr Gaggino’s termination date would be 26 May 2014. However, this does not assist as Mr Gaggino’s application was still lodged outside the statutory timeframe relying on this later date, i.e. the application would have been lodged 23 days instead of 30 days after the dismissal.

[6] Further, drawing on Justice Wilcox’s decision in Siagian v Sanel Pty Ltd 2 (Siagian), the general approach is that where payment in lieu of notice is provided the dismissal usually takes effect immediately. In Siagian, Chief Justice Wilcox found that there was no intention for the employment relationship to continue beyond the date the applicant was notified of his dismissal despite a payment in lieu of notice. This was evidenced by, among other things, the applicant being asked to return his keys and being escorted from the premises. In this case Mr Gaggino was escorted from the premises on 19 May 2014 immediately after he was informed that his employment was to be terminated. This indicates that there was no intention for the employment relationship to continue beyond that date.

[7] The Respondent did not provide a response to Mr Gaggino’s application and failed to attend the hearing.

[8] Section 394(3) of the Act which deals with an extension of time for the making of an application for an unfair dismissal remedy provides that:

“394(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 first person 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.

[9] In deciding whether to allow a further period for an application to be made the Commission must be satisfied that there are exceptional circumstances take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[10] I have previously outlined the reason for the delay relied on by Mr Gaggino.

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

[11] Mr Gaggino became aware of his dismissal on 19 May 2014 when he was called into a meeting where he was informed that his employment was terminated. Mr Gaggino was subsequently escorted from the premises. He confirmed both of these points at the hearing. These factors weigh against the granting of an extension of time.

(c) Any action taken by the person to dispute the dismissal

[12] Based on the material before the Commission it appears that Mr Gaggino took no action to dispute his dismissal prior to lodging his application. Mr Gaggino confirmed this at the hearing. This weighs against the granting of an extension of time.

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

[13] No submissions were made on this point. I consider this factor a neutral consideration

(e) The merits of the application

[14] Mr Gaggino submits that his dismissal was unfair primarily because he was given inadequate time to address a number of performance related issues raised with him in March 2014. While Mr Gaggino acknowledges in his application that he had received what could be construed as one letter of warning, he considered that three were required before he could be dismissed.

[15] The material before the Commission supports a finding that the application is not without merit which gives weight to an extension of time being granted.

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

[16] No submissions were made on this point. I consider this factor a neutral consideration

[17] I turn now to consider these issues.

[18] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Nulty v Blue Star Group 3(Nulty) in the following way:

“[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 ...” [Underlining added]

[19] By way of background the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in identical terms to s.394(2)(a) of the Act.

[20] Following the approach in Nulty and having considered all of the factors set out in s.394(3) of the Act, I am satisfied that there are no exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. The application is therefore dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

R. Gaggino on his own behalf.

Hearing details:

2014.

Melbourne:

August 22.

 1   Form F2 - Unfair Dismissal Application at Item 1.4

 2 (1994) 122 ALR 333

 3 (2011) 203 IR 1

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