Stefan Italia v MSS Security Pty Ltd

[2021] FWC 670

[2021] FWC 670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Stefan Italia
v
MSS Security Pty Ltd
(U2021/437)

DEPUTY PRESIDENT COLMAN MELBOURNE, 10 FEBRUARY 2021

Unfair dismissal application filed out of time – application dismissed

[1] This decision concerns an application by Mr Stefan Italia for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009(Cth) (Act). Mr Italia’s employment with MSS Security Pty Ltd (company) was terminated on and with effect from 5 October 2020. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 26 October 2020. Mr Italia’s application was lodged on 17 January 2021. He asks the Commission to grant a further period for the application to be made under s 394(3).

[2] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression expounded by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. I note that the requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is fair to do so.

[3] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position. I will consider each of these matters as they pertain to Mr Italia’s application.

[4] The Act does not specify what reasons for delay tell in favour of granting an extension of time however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. Mr Italia stated in his application that the reason for the delay in lodging his application was that he had been ‘extremely unwell’ and had ‘not been in the right headspace’ prior to lodging the application, that he had not had any assistance, and that it was only now that he was feeling better ‘to a degree’. Mr Italia submitted a medical certificate issued prior to his dismissal, on 7 September 2020, which stated that he had been experiencing stress and anxiety since 2016 and was unable to cope with using a protective mask. The certificate did not state or suggest that Mr Italia was generally debilitated or could not function. At the hearing, Mr Italia said in very general terms that he had been ‘very ill’ and ‘bedridden’. He did not provide details or explain why this prevented the timely lodgement of his F2 application, which is a brief, simple form. I am not persuaded that Mr Italia has provided an acceptable or reasonable explanation for the delay. This weighs against an extension of time.

[5] Mr Italia was notified of his dismissal on the same day that it took effect. He did not take any action to dispute the dismissal aside from lodging his application. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Italia and other persons. There is no evidence of prejudice to the employer. I consider these four matters to be neutral considerations.

[6] As to the merits of the application, Mr Italia said that he was dismissed for not complying with the company’s COVID requirement that he wear a mask, and that this was unfair, because he had a medical reason for not doing so. The company submitted that Mr Italia was dismissed because of his failure to follow lawful and reasonable directions, including by not wearing a face mask while on foot patrol and failing to participate in the investigation of that matter. The merits of the application would turn on questions of evidence and factual findings. On the limited material before me, I consider that Mr Italia has an arguable case, and that the company has an arguable defence. The merits are a neutral consideration.

[7] Mr Italia also emphasised that he had lodged an earlier unfair dismissal application within the 21 day period, which he later had to withdraw because he had not yet been dismissed. I do not consider this to be an exceptional matter in the context of s 394(3).

[8] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances. There is therefore no basis for me to extend time. I decline to grant an extension of time under s 394(3). Mr Italia’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Italia for himself
N. Colosimo for MSS Security Pty Ltd

Hearing details:

2021
Melbourne (by telephone)
10 February

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