Roberto Dal Col v Trades Workforce Solutions Pty Ltd
[2022] FWC 2549
•30 SEPTEMBER 2022
| [2022] FWC 2549 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Roberto Dal Col
v
Trades Workforce Solutions Pty Ltd
(C2022/3664)
| DEPUTY PRESIDENT BELL | MELBOURNE, 30 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal – application filed out of time – circumstances not exceptional - application dismissed.
On 23 June 2022, Mr Roberto Dal Col (Applicant) applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal.
On 15 August 2022, Trade Force Solution (Respondent) filed its F8A Response to the application, raising a jurisdictional objection to the application on the ground that it was made outside the 21-day time limit set out in s.366(1) of the Act.
Section 366(1) requires an application under s.365 to be made within 21 days after the dismissal took effect or within such further period as the Commission allows. In his application, Mr Dal Col states that his dismissal took effect on 15 April 2021, making the application well outside the 21-day timeframe. The Commission must therefore determine in the first instance whether a further time for lodgement of the application should be granted. The matter has been allocated to me for determination of the extension of time question.
After conferring with the parties, I resolved to conduct the matter by way of a determinative conference. As an administrative matter, I also corrected the name of the Respondent from ‘Trade Force Solution’ (as stated in the Form F8 application) to ‘Trades Workforce Solutions Pty Ltd’, which appears to trade generally under the name ‘Trades Workforce Solutions’.
When did the dismissal take effect?
The parties are in agreement that the Applicant was dismissed from his employment on 15 April 2021. The Applicant’s Form F8 describes that date in his application. The Respondent’s evidence refers to the same date. It is a matter of record that the application was made on 23 June 2022.
On this basis his application should have been filed by 6 May 2021 and was, in the circumstances, approximately 413 days’ late.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW 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:
(a) the reason for the delay; and
(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1] I issued directions to the parties on 23 August 2022, requiring the parties to provide any evidence or submissions regarding the above factors. Each party filed material. The Applicant gave evidence for himself. The Respondent called Mr Twentyman, the Managing Director of the Respondent.
I set out my consideration of each matter below.
Section 366(2)(a) - Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been with 21 days after 15 April 2021. The delay is the period commencing immediately after that time until the date the current application was lodged on 23 June 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[4]
The Respondent is a labour supply company, focussing upon labour supply for civil & rail projects, manufacturing, and engineering.
On 15 March 2021, the Applicant applied to join the Respondent as a welder on a casual basis. He was hired by the Respondent, although it appears his first work was not until around 12 April 2021.
On 12 April 2021, the Respondent placed the Applicant with an entity trading as ‘Car Stackers International’ (CSI), in the role of a welder/trades assistant. The job involved welding work, which was to be undertaken to a particular standard.
Following a complaint by CSI about the Applicant’s welding skills, the Applicant was removed from CSI and his employment subsequently terminated on 15 April 2021.
An email dated 15 April 2021 notified the Applicant of the termination of his employment. The Applicant responded to the email on the same date thanking the sender and stating “I enjoyed working there but unfortunately it didn’t work out. Please contact me for any available work for next week please.” While nothing turns upon it, the Applicant was not contacted for any further work.
The Applicant’s Form F8 states the reason for the delay in filing his complaint as follows:
“The reason for my delays is my condition of my health was not the best time for me to put complaints as Ihave been mentally tramatised constently bullied and harassed by Victoria Police and the public acting on behalf of Victoria Police and mental health services 24/7 a day as they are all init for fun to me in aharm way of stalking and track and tracing and invading my space to bully with their mobilephones to set me up to get me introuble when I have been victimsed of crimes committed by the public and work places of police stupidity, mental health services and public behaviour is childish and selfish.”
While the evidence placed before me was far from comprehensive, I am satisfied that the Applicant has at all times since his dismissal been suffering from mental health problems. Based on a letter dated 10 June 2022 from The Royal Melbourne Hospital (North West Area Mental Health Service), and a separate email from them dated 20 June 2022 containing a medical certificate for Centrelink, the date of onset of that condition may have commenced as early as 21 March 2011. Given the personal nature of those matters, I do not intend to describe them in detail here although I have had regard to them. I note that the documents I have described were not prepared for this proceeding but appear to have been created for unrelated purposes, including for an application to Centrelink. The Applicant sent a further email to chambers following the determinative conference, which sought to explain (in the Applicant’s view) the effect of his conditions, which I have also had regard to.
What is not clear to me, however, is whether those matters explain the significant delay – over 400 days – that ensued before the Applicant filed his application with the Commission. While I am prepared to accept that the Applicant’s condition (such as I understand it based on the material before me) has impacted his ability to commence a general protections claim, I do not accept it explains the length of the delay or major parts of it.
First, I am not satisfied that the evidence rises to such a level such that the delay that ensued was caused by the Applicant’s illnesses.
Second, the Applicant’s own material shows that he undertook a large number of paid jobs after the termination of his employment with the Respondent. Unfortunately for the Applicant’s personal circumstances, that evidence shows a fairly consistent pattern of relatively short-term engagements before the employment ended. It is not clear to me why each such engagement ended, although the material is suggestive of it being related to the Applicant’s challenges with mental illness. I note that the Applicant appears to contend a form of industry-wide conspiracy where employers, co-workers and/or Victoria Police listen into the Applicant’s telephone conversations (among other matters) and send “hidden links” to other persons in the labour hire industry to the Applicant’s detriment. Nonetheless, the Applicant’s material, as just described, indicates that a reason for the delay in bring his Application was because he was focussed upon obtaining work opportunities and attending for work.
Third, an email dated 5 September 2022, which was filed by the Applicant in response to my orders for witness statements, describes that he had “advise from job watch lawyers to put an protection form in and lodge a complaint to FWA explain my circumstances of being unfairly treated in workplaces misconduct behaviour of being targeted of discrimination and hatred.” This explanation suggests that a further reason for delay was because the Applicant was unaware of his rights to commence a general protections claim. The timing and nature of the advice is unclear. It is also unclear to me whether the Applicant had previously turned his mind to pursuing his claims for any of his (many) other employment engagements. Given the sheer number of employment engagements described in the Applicant’s material going back to 2016, it appears improbable to me that the first time he ever considered such a step was upon receipt of advice from ‘job watch lawyers’ in relation to the Respondent.
My findings for the reason for the delay by the Applicant in commencing his claim is primarily because he was pursuing other work alternatives and, potentially, that he was unaware of – or had not turned his mind to - his specific rights (as he now perceives them) to commence a general protections claim. The Applicant’s evidence indicates a longer-standing concern by him about various practices within the industry he works, which also appears to have been a priority for the Applicant. The evidence does not disclose the Applicant was unable to commence a general protections claim due to his condition. I note in this latter respect that the Applicant did eventually commence a general protections claim himself, and there is no satisfactory evidence that his condition has only recently improved or changed to enable that to occur.
Section 366(2)(b) - action was taken by the Applicant to dispute the dismissal
Where an Applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[5]
There was no evidence before me demonstrating any prior steps taken to dispute the dismissal, and I so find, that the Applicant did not take any substantive actions to dispute their dismissal prior to making the application on 23 June 2022.
Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)
The Respondent stated that it faces prejudice from an extension being granted in this case because:
(a) the length of the delay, which impacts upon the ability of relevant witnesses to recall the key events; and
(b) the requirement to expend further time and resources in defending the application.
While lengthy delays are certainly capable of causing prejudice (particularly if witnesses move on or become unavailable, especially where a statutory ‘presumption’[6] operates as to the reasons for dismissal where that witness’ evidence might have been central), no material before me leads to me to be satisfied that the Respondent would suffer any particular prejudice in this matter because the person who appears to have been the relevant decision-maker gave evidence and could remember the events.
I consider that the prejudice in expending time and resources is a prejudice that would have been incurred if the application was made in time.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
Section 366(2)(d) - 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, although at a relatively high level.
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. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[7].
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.
Notwithstanding those qualifications, the Respondent’s witness evidence indicates - with some force - that the dismissal was based upon the Respondent’s view of the Applicant’s welding skills.
The Respondent’s evidence also discloses, with some corroboration, that the relevant decision-maker was unaware of the Applicant’s conditions and therefore the Applicant’s medical conditions did not form part of the reasons for dismissal. The Applicant gave evidence to the effect that he had not disclosed the details of his conditions to the Respondent because he was concerned about being discriminated against. I accept Mr Dal Col’s explanation, although it supports further that Mr Twentyman was not motivated by those matters when he dismissed the Applicant.
Mr Twentyman gave further oral evidence about those matters in response to questions asked and I accept his evidence. He was not aware of the wider industry practices that were of concern to the Applicant.
While I accept that the matters I have just described would be contested facts should the matter proceed, those facts nonetheless indicate that the Applicant will have real challenges in demonstrating (even with the benefit of the statutory presumption) that the reasons for dismissal constituted an unlawful reason, let alone the wider conspiracy allegations that were also made.
I consider this factor tends against the extension of time being granted.
Section 366(2)(e) - 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.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, 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.[8] 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.[9]
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that a 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.[10]
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.[11]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[12]
Mere ignorance of the statutory time limit is not an exceptional circumstance.[13] I would make the same observation as to ignorance regarding the cause of action itself.
The delay in the present case is extensive – over 400 days. The reasons for delay are in large part due to the Applicant’s pursuit of other work and, possibly, a lack of awareness of his perceived rights. The Applicant’s evidence indicates a sustained period of genuine illness. In circumstances where the Applicant was working for a considerable part of that period, this suggests the Applicant was capable of commencing his claim despite his conditions. I am not satisfied that evidence of his conditions rises to such a level to properly explain such a delay or, indeed, any specific parts of it other than at a general level. I consider this is a factor against the Applicant.
The Applicant has taken no apparent steps to challenge his dismissal prior to his application. It is not a factor that I consider assists him.
The merits of the Applicant’s claims appear to contain significant challenges based on the (albeit limited) information before me. While it is not necessary for me to form a concluded view about that factor, however, on the material before me I consider it tends against exceptional circumstances being present but, even if this factor was treated neutrally, it would not affect my overall assessment. I am not aware of any factor raising considerations of fairness between the Applicant and other persons in a similar position.
While I acknowledge the genuine challenges and difficulties that Mr Dal Col has faced (and is still facing), when having regard to all of the matters listed at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute, even if I were to make a more beneficial assessment on the merits of the Applicant’s claim.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[14] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
R Dal Col on his own behalf
L Saccoccio of AiGroup for the Respondent
Determinative conference details:
2022.
Melbourne (by video and Telephone):
September 27.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[2] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[6] Fair Work Act 2009, s.361.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[11] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[14] PR746123.
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