Simon Cutrona v Kustom Formwork Pty Ltd

[2020] FWC 3402

[2020] FWC 3402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Simon Cutrona
v
Kustom Formwork Pty Ltd
(C2020/2203)

DEPUTY PRESIDENT YOUNG MELBOURNE, 29 JUNE 2020

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Simon Cutrona under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] It is uncontested that Mr Cutrona’s employment with the Respondent ended on 24 November 2017. His application was lodged on 7 April 2020. The period of 21 days ended at midnight on 15 December 2017 and the application was therefore lodged 843 days out of time. Mr Cutrona seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

[3] On 29 April 2020, I issued directions for the parties to file materials. Materials were filed by the parties in accordance with those directions.

[4] Following the filing of materials, I sought the parties’ views as to the matter being determined on the papers and advised that I would proceed to do so in the absence of any objection by 11 June 2020. No objection was received.

Background

[5] Mr Cutrona has a hearing impairment. He was employed by the Respondent as a carpenter from 29 July 2017 until 24 November 2017. 1 Mr Cutrona says that the Respondent had to end his employment and the employment of a number of other employees due to building projects coming to an end. He says that after his employment ended, Mr Kiel, director of the Respondent, sent him a text message telling him to contact the Respondent in the new year about further employment with the Respondent. Mr Cutrona says that he contacted Mr Kiel in the new year but Mr Keil said the company did not have much work and were not looking to employ him at that time.2 Mr Cutrona says a few weeks later he saw a job for a carpenter with the Respondent advertised on Seek.com. He believes that the Respondent had a role for a carpenter but employed someone else in that role.3

[6] Mr Cutrona says he requested a reference setting out the reasons for his dismissal from the Respondent on several occasions but was not provided with one. He also makes reference in his material to not receiving a letter of termination. Additionally, he says he had to repeatedly asked for his group certificate to be provided to him and this did not occur until 25 October 2018. 4

Consideration

[7] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 5

[8] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 6 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.7

[9] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

Reason for the delay

[10] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 8 or a reasonable explanation.9 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd10 the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.11 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.12

[11] Mr Cutrona says that in the last five years he has worked for three companies that have gone into liquidation. He says that because of this, the failure of the Respondent to provide him with a reference and/or letter of termination and the delay in providing him with his group certificate he has “had a lot of thought about” lodging his application and for that reason his application was lodged out of time. 13

[12] Whilst I accept that Mr Cutrona’s employment history is most unfortunate, it does not provide a reasonable or acceptable explanation for a failure to lodge the application for a period in excess of two years. Nor, in my view, does the failure of the Respondent to provide a reference or letter of termination, or the asserted delay in providing the group certificate provide a reasonable or acceptable explanation. The absence of these documents in no way precluded Mr Cutrona from lodging the application on time. Further, if it is sought to be asserted that as a result of the absence of a reference or letter of termination or group certificate Mr Cutrona was unaware of the termination of his employment or its effective date, I reject that assertion. In his materials Mr Cutrona says that he was informed by written communication on 20 November 2017 that his last day of work would be 24 November 2017. 14 He also says that it was confirmed by text on 24 November 2017 that that was his final day of work.15

[13] Mr Cutrona says that he has been unemployed for 12 months and as a consequence has suffered financial hardship. 16 He says he has had to access his superannuation due to his financial hardship.17 Whilst I have no doubt that Mr Cutrona has suffered financial hardship, financial hardship is an unfortunate consequence of the loss of one’s employment. It is not unusual, special or uncommon. It does not provide an acceptable or reasonable explanation for the very lengthy delay in lodgement of the application.

[14] The delay is very lengthy, being a period in excess of two years. Mr Cutrona has not provided a reasonable or acceptable explanation for the delay in lodgement. This weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

[15] There is no evidence before the Commission that Mr Cutrona disputed his dismissal. This weighs against the granting of an extension of time. For completeness, I do not consider Mr Cutrona’s request for a reference, letter of termination or the provision of a group certificate to amount to action disputing his dismissal.

Prejudice to the employer

[16] The delay in lodgement in this matter is significant, being in excess of two years. A long delay gives rise to a general presumption of prejudice. 18 There is no material before the Commission which rebuts that presumption. Further, I consider there is prejudice in the Respondent being required to engage in litigation in respect of a termination of employment which it was entitled, given the passage of time and the statutory time limits which apply, to consider was uncontested. Accordingly, this weighs against the grant of an extension of time.

Merits of the application

[17] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[18] As I understand it, Mr Cutrona asserts he was dismissed because he was a member of a union and/or because of his hearing impairment. 19 He relies on section 340, 346 and 351 of the Act.20 Mr Cutrona also appears to assert that he was not offered further employment with the Respondent for these reasons.21 However, Mr Cutrona also appears to assert that his employment ended because a number of building projects of the Respondent ended22 and that he was not discriminated against because of his hearing impairment.23 Accordingly, the basis of Mr Cutrona’s claim is not entirely clear.

[19] It is uncontested that Mr Cutrona was dismissed by the Respondent. Accordingly, adverse action as defined in section 342 of the Act was taken against Mr Cutrona. It also appears uncontested that Mr Cutrona has a hearing impairment and therefore a disability for the purposes of section 351 of the Act. That Mr Cutrona was a member of the union also does not appear to be contested. However, the Respondent says it dismissed Mr Cutrona due to a shortage of work.

[20] Given the interlocutory nature of these proceedings, and on the material currently available to the Commission, it is not possible to form a concluded view as to the merits of the application. The evidence of Mr Cutrona and the Respondent would need to be fully tested under oath. In these circumstances, I am prepared to consider the merits of the application to be a neutral consideration.

Fairness as between the person and another person in a like position

[21] Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.²⁴ Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.²⁵ The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Cutrona and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[22] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[23] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Cutrona’s application.

[24] Accordingly, I decline to grant an extension of time under section 366(2). Mr Cutrona’s application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720580>

 1   Form F8 – General protections application involving dismissal, q.1.1 and 1.3

 2   Ibid, q.3.1

 3   Email from Mr Cutrona to the Commission, 27 April 2020

 4   Form F8 – General protections application involving dismissal, q.3.3

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

 6   [2011] FWAFB 975

 7   At [13]

 8   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 9   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 10   [2018] FWCFB 901

 11   Ibid at [39]

 12   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 13   Applicant’s Outline of Argument, q.1d and 1f

 14   Ibid, q.1a, 1b and 1c

 15   Ibid, q.1c

 16   Form F8 – General protections application involving dismissal, q.2.1; Email from Mr Cutrona to the Commission, 7 May 2020

 17   Email from Mr Cutrona to the Commission, 7 May 2020

 18   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J)

 19   Applicant’s Outline of Argument, q.1h; Email from Mr Cutrona to the Commission, 20 April 2020

 20   From F8 – General protections application involving dismissal, q.3.2

 21   Ibid, q.3.3

 22   Ibid, q.3.1

 23   Ibid

24 Wilson v Woolworths [2010] WA 2480 at [24-29]

25 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]