Sandor Zsido v Community Development Enterprises Pty Ltd T/A Solergy
[2022] FWC 2554
•21 SEPTEMBER 2022
| [2022] FWC 2554 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sandor Zsido
v
Community Development Enterprises Pty Ltd T/A Solergy
(C2022/3563)
| DEPUTY PRESIDENT LAKE | BRISBANE, 21 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – jurisdictional objection dismissed.
Mr Sandor Zsido (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Community Development Enterprises Pty Ltd T/A Solergy (the Respondent). The Applicant began his employment on 24 March 2022. The Respondent claims that the Applicant was dismissed on 13 April 2022. The Applicant claims they were never notified of their dismissal and that they were dismissed on 27 May 2022. The application was lodged with the Commission’s registry in Melbourne on 16 June 2022.
By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. The Respondent maintains that the application was made 64 days after the date of dismissal. The Applicant maintains his dismissal date was 27 May 2022 and therefore the application was made one day within time.
The only material provided to my Chambers prior to the hearing was the Applicant’s Form F8, the Respondent’s Form F8A, and an email sent by the Respondent on 24 August 2022 in response to Vice President Catanzariti’s Chambers asking for the Respondent to clarify when the Applicant was dismissed.
Was the application lodged within time?
Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.
The Respondent asserts that the Applicant was terminated on 13 April 2022 and his application was made 43 days outside the 21 days required under s.366(1) of the Act.
The Applicant asserts he was dismissed on 27 May 2022. The Applicant lodged his application on 16 June 2022. Thus, his application was made one day inside the 21 days required under s.366(1) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.
The Applicant’s submissions
The Applicant’s submissions can be summarised as follows.
The Applicant had a disagreement with the Respondent early in his first tour regarding certification of work. The Applicant continued working until the end of the tour and returned to Melbourne for his rostered week off. Following this period, the Applicant made contact with the Respondent to return for the next tour. A number of reasons were provided by the Respondent that they were not ready for him to return to work. The Applicant sent several communications through the period of May to establish what his employment status was. By 26 May, the Applicant concluded that he had bene terminated. The Applicant then lodged his application.
The Respondent’s submissions
The Respondent’s submissions can be summarised as follows.
The Respondent employed the Applicant as a solar accredited electrician to work in the Northern Territory. On the second day of the tour, the Applicant refused to sign off on work completed by the Respondent. The Respondent requested several times that the Applicant sign off on the work as it was believed that the Applicant had the requisite licence to do so. After several attempts, the Respondent then indicated that it could not employ him as a solar electrician but would rather use him as an electrician. However, for the remaining time of the tour, the Applicant’s pay would be maintained.
The Respondent finished the Applicant on his final day of employment. The Applicant was paid everything he was owed, and it was noted that the Applicant was within his probation period.
The Respondent asserts that the correct termination date was 13 April 2022 and that the Applicant was 43 days out of time.
Consideration of whether a further period should be granted
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person 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 person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
For the Applicant’s application to proceed, it is necessary for me to determine the date of dismissal and on the Respondent’s case, then the Applicant would be required to obtain an extension of time under s.366(2) of the Act.
Consideration
Reason for the delay (s.366(2)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
Date of dismissal
The Respondent could not provide any documentation to support his case that the termination date was 13 April 2022. He asserted that the Applicant was dismissed by telephone. The Applicant denied that he had been terminated and in fact had sought to clarify this following his return from tour through the month of May. On the basis of the evidence before me, I find that the dismissal date was 27 May 2022. Therefore, the application was lodged within time. I do not need to consider an extension of time.
Conclusion
Having regard to all of the matters that I am required to take into account under the Act, I am satisfied that the date of dismissal was 27 May 2022 and the Application was made within time.
The Applicant’s Application will be progressed by way of a conference at a time and date to be advised. I Order accordingly.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
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