Spiro Doulos v Artilux (Australia) Pty Limited

[2023] FWC 2661

[2023] FWC 2661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Spiro Doulos
v

Artilux (Australia) Pty Limited

(U2023/8374)

COMMISSIONER CRAWFORD SYDNEY, 12 OCTOBER 2023

Unfair dismissal application filed out of time – extension granted Application for an unfair dismissal remedy

Background

1. Spiro Doulos (Doulos) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Artilux (Australia) Pty Ltd (Artilux).

1. Mr Doulos commenced employment with Artilux on 5 February 2018 and was engaged in the role of Sales Manager prior to being made redundant effective 5 June 2023. Artilux supplies retractable screens.

1. Mr Doulos filed an unfair dismissal application on 4 September 2023.

1. Artilux has objected to the application on the ground that the application is out of time.

1. Before considering the merits of the application, the Commission must determine the jurisdictional issues identified in s.396 of the FW Act, one of which is whether the application was made out of time.[1]

Time limit for an unfair dismissal application

1. Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]

1. Given Mr Doulos was dismissed on 5 June 2023, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 26 June 2023. The application was filed on 4 September 2023. There is no dispute between the parties about these dates and hence that the application was filed 70 days outside the 21-day period. As a result, Mr Doulos needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

1. Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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)   whether Mr Doulos first became aware of the dismissal after it had taken effect; and

(c)   any action taken by Mr Doulos 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 Mr Doulos and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

Procedural history

1. On 14 September 2023, I issued directions for the filing of material and listed a hearing/determinative conference regarding the extension of time issue for 4 October 2023. I subsequently agreed to conduct the proceeding using Teams. The parties filed material in accordance with the directions.

1. Both parties sought and were granted permission to be legally represented. I was satisfied this would enable the matter to be dealt with more efficiently, taking into account its complexity. Mr Doulos was represented by Leanne Tacey from Anderson Gray Lawyers. Artilux was represented by Petrine Costigan from Petrine Costigan Lawyers.

1. I sought the views of the parties concerning whether the proceeding should be conducted as a determinative conference or hearing, pursuant to s.399 of the FW Act at the beginning of the proceeding. Given the parties were legally represented and intended to cross-examine witnesses, I determined to conduct a hearing. This was not opposed by either party.

Material filed

Doulos

1. Mr Doulos relied on the following material in support of his request for an extension of time to file an unfair dismissal application:

·   Form F2 application dated 4 September 2023.

·   Outline of submissions dated 12 September 2023.

·   Outline of reply submissions dated 27 September 2023.

·   Statement from Mr Doulos dated 27 September 2023. I marked this Exhibit A1.

·   Termination email dated 5 June 2023. I marked this Exhibit A2.

1. Mr Doulos was cross-examined by Ms Costigan.

1. Ms Tacey also provided oral closing submissions at the end of the hearing.

Artilux

1. Artilux relied on the following material in opposition to the granting of an extension of time:

·   Form F3 employer response dated 14 September 2023.

·   Outline of submissions dated 22 September 2023.

·   Statement of Marisa Lo Certo (Managing Director) dated 22 September 2023. The statement had an email from Ms Lo Certo to Mr Doulos dated 3 November 2022 attached. I marked the statement Exhibit R1.

1. Ms Lo Certo was cross-examined by Ms Tacey.

1. Ms Costigan also provided oral closing submissions at the end of the hearing.

Consideration

When did the dismissal take effect?

1. I accept Mr Doulos’ dismissal took effect on 5 June 2023 as specified in the termination email. This was not contested by Mr Doulos.

When was the application made?

1. There is no dispute that Mr Doulos filed his unfair dismissal application on 4 September 2023.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 26 June 2023. The delay is the period commencing immediately after that time until 4 September 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

1. 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.[5]

1. Mr Doulos 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 Mr Doulos has not provided any reason for any part of the delay.[6]

1. Mr Doulos relied on new evidence emerging which cast doubt upon whether his redundancy was genuine as the reason for the delay in filing.

1. Mr Doulos stated he had a telephone conversation with an Artilux employee named Terry on around 24 August 2023. Terry was apparently the only sales representative left working for Artilux after Mr Doulos was made redundant. Terry told Mr Doulos that Artilux was going to employ a new sales representative and they would be starting the next week.[7] Mr Doulos stated he was shocked at this news and that Ms Lo Certo had not asked him to come back.[8]

1. Mr Doulos sought legal advice on 25 August 2023. Mr Doulos decided there was not yet definitive evidence a new employee was being engaged. [9]

1. On Friday, 1 September 2023, Mr Doulos called Terry for another chat. Mr Doulos stated Terry told him a new Sales Representative had been employed by Artilux and that he was covering the territory previously managed by Mr Doulos.[10]

1. Mr Doulos engaged a lawyer on Friday, 1 September 2023 and reviewed a draft application on Sunday, 3 September 2023. The application was then filed on Monday, 4 September 2023.[11]

1. Mr Doulos’ evidence about these events was not challenged in cross-examination.

1. Artilux argued this was not an adequate explanation because the evidence relied upon is misconceived given Mr Doulos’ role as Sales Manager has not been replaced, the new role is a Sales Representative. I am not in a position to assess whether that’s correct at this stage of the process and do not consider the distinction in titles is sufficient in itself to undermine the explanation provided by Mr Doulos.

1. I find Mr Doulas has an adequate explanation for the delay in filing and that this weighs in favour of an extension being granted. It is clear Mr Doulos acted promptly when he became aware of evidence that may cast doubt on whether his redundancy was genuine.

Did Doulos first become aware of the dismissal after it had taken effect?

1. Mr Doulos was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. I consider this to be a neutral factor.

What action was taken by Doulos to dispute the dismissal?

1. There is no evidence of any other action being taken by Mr Doulos to dispute the dismissal. That is unsurprising because he had no reason to doubt his redundancy was genuine until around 24 August 2023. I consider this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. I accept Artilux will suffer some minor prejudice if an extension is granted but consider this to be a neutral factor in the circumstances.

What are the merits of the application?

1. 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)”.[12]

1. Artilux urged me to find that there is no merit to the application because the relevant new employee is engaged as a Sales Representative whereas Mr Doulos was employed as a Sales Manager. However, Mr Doulos’ case is that the overwhelming majority of his duties were that of a Sales Representative even when he had the title of Sales Manager. Mr Doulos said he had very few managerial responsibilities and little, to no, authority.

1. Ms Costigan invited Mr Doulos to give evidence about his performance in sales during cross-examination and he described it as “exceptional”. I consider it is somewhat interesting that Mr Doulos was not offered the opportunity to return to working for Artilux as a Sales Representative when a vacancy arose. I also note Mr Doulos was made redundant on 5 June 2023 and that he has given evidence about having a heated argument with Ms Lo Certo’s husband on 25 May 2023.

1. On the other hand, Ms Lo Certo presented as a credible and honest witness and she was adamant that a surprising financial turnaround is the reason a new sales representative was able to be hired in late August 2023.

1. I consider this to be a typical case where there are significant factual disputes between the parties and the strength of Mr Doulos’ case cannot be assessed until more is known about these matters. I consider the merits to be a neutral factor.

Fairness as between Doulos and other persons in a similar position

1. I consider this to be a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

1. 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.[13] 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.[14] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[15]

1. Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.

1. I consider Mr Doulos has an adequate explanation for the delay and the remaining factors are neutral. I think Mr Doulos finding out a new employee had been engaged in late August to perform at least some of the duties of his role that had been made redundant on 5 June 2023 falls within the meaning of exceptional circumstances.

Conclusion

1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

1. Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[16] I am satisfied that it is appropriate to extend the period for the application to be made to 4 September 2023.

1. The application will proceed to be dealt with in accordance with the Commission’s normal processes.

COMMISSIONER

Appearances:

Leanne Tacey from Anderson Gray Lawyers for Mr Doulos.

Petrine Costigan from Petrine Costigan Lawyers for Artilux.

Hearing Details:

4 October 2023.
Video via Microsoft Teams.

[1] Section 396 of the FW Act.

[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[7] Exhibit A1 at [21].

[8] Exhibit A1 at [22].

[9] Exhibit A1 at [23].

[10] Exhibit A1 at [25].

[11] Exhibit A1 at [26], [27] and [28].

[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[14] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

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

[16] Fair Work Act 2009 (Cth) s 577.

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