Stefan Mori v Mick Cavallaro Builder
[2023] FWC 1312
•15 JUNE 2023
| [2023] FWC 1312 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stefan Mori
v
Mick Cavallaro Builder
(U2023/3997)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 15 JUNE 2023 |
Application for an unfair dismissal remedy – application made outside 21-day timeframe – circumstances not exceptional.
Mr Stefan Mori made an application for an unfair dismissal remedy pursuant to s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 9 May 2023. The respondent, Mick Cavallaro Builder, objects to Mr Mori’s unfair dismissal application on the basis that it was not filed within 21 days after the dismissal took effect.
Section 394(2) of the Act prescribes that the application must be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). This decision deals with the issue of whether the Commission should allow Mr Mori a further period of time to lodge his unfair dismissal application pursuant to s 394(3) of the Act.
For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened. The respondent’s jurisdictional objection is upheld and Mr Mori’s application for an unfair dismissal remedy is dismissed.
Background
The respondent is a building company. Mr Cavallaro runs the business of the respondent as a sole trader. The business operates out of Shepperton, Victoria.
Mr Mori commenced as an apprentice carpenter with the respondent on 9 December 2019.[1] The contract was for 48 months.[2]
Mr Mori considers that he worked hard throughout his apprenticeship, travelling from Shepparton to Nagambie most days in his own vehicle from the second year of his apprenticeship. He considers that he did not take any holiday leave apart from two-week Christmas breaks and a trip to Queensland in February 2023, discussed below, and a small amount of sick leave. He considers he often worked overtime, and worked through the COVID-19 pandemic. Mr Mori regards himself to be a reliable and respectful employee who did what was asked. Mr Mori also notes general issues in his workplace that he tolerated. Mr Mori recalls being made to take time off to allow Mr Cavallaro’s son to work during his university break. Mr Mori alleges that he had to wait months to be paid at some point, was not paid the correct overtime penalty and never received pay payslips.[3]
At some stage during his employment, before the following events, Mr Mori cut his arm at TAFE and made a Workcover claim.[4]
In October 2022, the demand on the respondent’s business increased significantly as a result of serious flooding in the Goulburn Valley region. The respondent submits that work involving repairs will be ongoing for the remainder of 2023.[5]
Mr Cavallaro gave evidence that Mr Mori was given an additional week off after the standard paid two-week break over the Christmas period in 2022-2023,[6] meaning that Mr Mori accessed three weeks of leave.
In February 2023, Mr Mori went on a trip to Queensland. It appears the trip was for up to around two weeks.[7] The respondent contends that Mr Mori gave Mr Cavallaro notice on 16 February 2023 for his departure on 18 February 2023.[8] However, Mr Mori gave evidence that he had advised Mr Cavallaro of his intention to take a holiday to Queensland prior to the Christmas break.[9]
The respondent submits that on 17 February 2023, Mr Mori arrived an hour late to work without reason.[10]
Mr Cavallaro gave evidence that he expected or was promised a phone call or a text message upon Mr Mori’s return from his holiday on or around 1 March 2023 which did not occur.[11] It is noted that Mr Cavallaro did not take any steps to contact Mr Mori.
It appears that Mr Mori did not return to the worksite after his holiday to Queensland. Mr Cavallaro gave evidence that Mr Mori had attended TAFE to undertake around one week of school-based training for his apprenticeship. Mr Cavallaro considered that this was as a result of Mr Mori falling behind because of his Workcover claim. However, Mr Mori gave evidence that he was ahead of his class by a significant margin, which allowed him to complete his apprenticeship nine months early.[12]
The respondent contends that Mr Mori returned to the worksite, following his week at TAFE, on or around 14 March 2023.[13]
On or around 10 March 2023, being around a week prior to the dismissal, Mr Mori received a Master Builders Association of Victoria Certificate of Merit at the north-east Victoria awards night in Wangaratta. Mr Cavallaro was not in attendance.[14]
On 16 March 2023, Mr Mori submits that he was not advised by the respondent of his work location for the following day.[15] Mr Mori contends that throughout his apprenticeship he had to contact Mr Cavallaro to ask where he needed to be for work. Mr Mori says that if he didn’t ask Mr Cavallaro directly, Mr Cavallaro would not contact Mr Mori to let him know and, as a result, Mr Mori missed out on many days of work, including a week after the Christmas break.[16]
The respondent submits that Mr Mori was told verbally where he would be required to work each week, and at the end of each day the workers would identify the job and start time for the following day, but Mr Cavallaro would send a text message if this was not known.[17] The respondent further submits that Mr Mori was advised he would be working at Park Avenue as this was the only ongoing job at the time.[18]
Mr Mori did not attend work on 17 March 2023.[19]
On 19 March 2023, Mr Mori sent Mr Cavallaro a text message asking where and when he was to work the next day.[20] Mr Cavallaro responded to Mr Mori’s message on 20 March 2023 as follows:[21]
“u new we wr at nihirs u need 2 ring or tx u jst had 3 weeks off 4 xmas now 2 weeks 4 queenslnd u gave me 1 days notice u told me 7 8 days we didnt c u 4 3 weeks u r 4th year no tools not even saw stools then thursday nite security ring 10oclk no alarm lite on air con on u no better i rang the appretce people 2 tell them u will b moving on i will send all by email thanks 4 ur help”
It does not appear to be in dispute that this text message affected the dismissal.[22]
Mr Mori replied later on 20 March 2023 as follows:[23]
“That’s bullshit, you said on the phone Thursday that you’d text me or ring me where to go on Friday and you never did. How am I supposed to know if you’d finished at Nahir’s or not. You don’t send me any payslips my whole apprenticeship so I don’t know if I’m even getting paid right and I don’t even do my own hours so how do you know what time I finish work? Also you pay me once every couple of months which isn’t right. I didn’t give you 1 days notice for my holiday I told you before Christmas the year before that I was going to Queensland in February. I had tafe straight after my holiday that’s why I wasn’t at work and you should’ve known that because Bob told me he emailed you a couple times about it. I have all my own tools so why would you say I don’t have tools … and I did turn the alarm on and I made sure all the lights were off so obviously someone came in after me. You’re just making up excuses to get rid of me which is fine cause it’s not like I was getting treated well anyways.”
Mr Cavallaro responded shortly after in two texts as follows:[24]
“sory I dont remember xmar about queensld no 1 else went 2 wyndam st”
“pay slips r on thr way mate”
Mr Mori submits that he immediately contacted Ms Tina McCormak from Apprenticeships Victoria. Ms McCormack oversaw Mr Mori’s apprenticeship.[25] Mr Mori submits that Ms McCormack advised him to request his employer to sign off on his apprenticeship.[26] Mr Mori then sent the following text message to Mr Cavallaro:[27]
“I’ve finished all my tafe so I’m gonna ask you to tick me off early so I’m qualified if you’re just gonna get rid of me like that.”
Mr Cavallaro responded as follows:[28]
“ok check with bob 1st u r not gettg rid of u r just movg on u r 4th year now i wil chek with the apprtce board ok”
Mr Mori submits that Ms McCormack advised him on 20 March 2023 “not to go ahead with the unfair dismissal application through the Fair Work Commission as my employer had agreed to sign me off.”[29] It therefore appears that Mr Mori had another conversation with Ms McCormick after receiving this text message from Mr Cavallaro.
Also on 20 March 2023, Mr Mori contacted his TAFE teacher, Bob Moncrieff, for advice. Mr Moncrieff advised Mr Mori that the “signing-off process” usually takes 14 days.[30]
Mr Mori received no communication from the respondent and on 28 March 2023, Mr Mori contacted Mr Cavallaro by text message as follows:[31]
“Hey mate, I’m after all my pay slips and the 1 week holiday pay that you owe me . Thanks.
Mr Cavallaro responded as follows:[32]
“all good every thing is being finerlized b4 easter b good”
This text was the final communication from the respondent to Mr Mori prior to the making of the unfair dismissal application.
On 11 April 2023, Mr Mori sent Mr Cavallaro the following message:[33]
“What’s taking so long for these payslips”
Mr Cavallaro did not respond. Mr Mori made subsequent contact with Mr Moncrieff in relation to the progress of his apprenticeship request. Mr Moncrieff explained that the first set of paperwork had been finalised, but that the second set of paperwork was yet to be completed.[34] On 12 April 2023, Mr Mori sent Mr Cavallaro the following text message:[35]
“Spoke to Bob today, still waiting for you to sign the second form he sent you 2 weeks ago. He said he sent it again last week. Seriously…”
Mr Mori received a document from Mr Cavallaro’s daughter on 13 April 2023. The document, which is before the Commission, contains a summary of Mr Mori’s hours and pay from the second year of his apprenticeship until the dismissal. Mr Mori contends that the document has errors, and is in any event incomplete because it does not record his first-year hours of work.[36]
Mr Mori contacted the Fair Work Ombudsman shortly before, or on, 1 May 2023. The Ombudsman advised Mr Mori to inform his employer that it had five business days to provide him with three weeks pay for the dismissal, all accrued and unpaid overtime and copies of all of his payslips from the first year of his apprenticeship.[37] Mr Mori sent Mr Cavallaro the following text message on 1 May 2023:[38]
“Hey mate, I’ve been advised by fair work that you have 5 business days to send me all my 1st year apprenticeship pay slips, all my overtime you owe me that I accumulated over the 3 and a bit years of my apprenticeship (as anything over 38 hours a week is time and a half). Also I’m entitled to 3 weeks pay for taking me out of the job with no notice over a text message. Finally, you need to sign me off and stop screwing me around. It’s been nearly 2 months since you said you would. If these things don’t happen I will be taking things further with fair work. Thanks.”
Mr Mori submits that, having not received a response from Mr Cavallaro following his text message on 1 May 2023, he “then went ahead with the unfair dismissal application through Fair Work.”[39]
On 5 May 2023, Mr Mori was informed by email from “VRQA” that he had been signed off as a qualified carpenter.[40]
At some point between 10 April and 9 May 2023, Mr Mori contacted the Commission for assistance in understanding his rights, and the discussion concerned how to make an application for an extension of time.
Mr Mori made the application for an unfair dismissal remedy on 9 May 2023.
Statutory framework
The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[41] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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.
Under s 394(3) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 the person and other persons in a similar position.
These matters are considered below.
Consideration
Reason for the delay: s 394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any 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 of the circumstances must be considered.[42]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application, being the 29 days from 11 April to 9 May 2023 inclusive.[43] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[44]
Having regard to Mr Mori’s written and oral evidence, I understand that Mr Mori advances three reasons for the delay. Mr Mori’s primary reason for the delay was that he was waiting for Mr Cavallaro to sign off on his apprenticeship as he agreed to do by text message.[45] Mr Mori confirmed that he was aware of the 21-day statutory timeframe. This is consistent with his written materials which states as follows:[46]
“On the day of my dismissal, March 20th, 2023, I contacted my TAFE teacher, Bob Moncrieff, for advice and he told me that the signing-off process usually takes 14 days, so I thought I would still have time to lodge an unfair dismissal application if I needed to.”
Mr Mori also relies on the advice of Ms McCormack to explain the delay. Ms McCormack is said to have advised Mr Mori not to file the unfair dismissal application if his apprenticeship was finalised.
Further, Mr Mori also sent Mr Cavallaro a letter of demand and provided him with five business days to respond which contributed to the delay.[47]
For the reasons that follow, I am not satisfied that Mr Mori has established an acceptable reason for any part of the delay.
Mr Mori’s primary reason for the delay proceeds on the assumption that Mr Cavallaro would not have finalised his apprenticeship had Mr Mori commenced unfair dismissal proceedings. Mr Mori has not provided a clear explanation for why he held this concern.
Mr Cavallaro gave evidence that he could have made Mr Mori go and find another employer to complete the final stage of his apprenticeship with, but Mr Cavallaro elected to sign the papers to finalise the apprenticeship instead. Mr Cavallaro explained that he was motivated to sign off on the apprenticeship because he was satisfied with Mr Mori’s “workmanship,” not his work ethic. I am therefore satisfied that the finalisation of Mr Mori’s apprenticeship, which occurred several months prior to the expected completion date, was a matter with which Mr Cavallaro retained discretion.
Despite this I am not persuaded, having regard to Mr Mori’s text message interactions with Mr Cavallaro, that Mr Mori genuinely held the view that invoking his unfair dismissal rights would result in Mr Cavallaro refusing to finalise his apprenticeship. Mr Mori’s text messages, set out from [21]-[33] above, demonstrate that Mr Mori was content to pursue his concerns in relation to matters arising during the employment, and the cessation of his employment, while his apprenticeship remained unfinalised. In summary:
(a) On 20 March 2023, in his response to the dismissal text, Mr Mori requested his payslips, noted that he was unaware if he was being paid correctly, noted issues with his attendance hours and raised a concern with being paid once every couple of months;
(b) On 28 March 2022, Mr Mori texted Mr Cavallaro seeking one week’s holiday pay and his payslips; and
(c) On 11 April 2023, Mr Mori requested his payslips.
Significantly, on 1 May 2023, Mr Mori requested from Mr Cavallaro, within 5 business days, his first-year apprenticeship pay slips, overtime payments noting the amount and trigger for overtime and 3 weeks’ pay dismissing him without notice over text. As part of this text message, Mr Mori wrote “you need to sign me off and stop screwing me around.” Mr Mori explained in the text message that “If these things don’t happen I will be taking things further with fair work.” At the time Mr Mori sent each of these text messages, his apprenticeship remained unfinalised.
The 1 May 2023 text message amounts to a clear indication of Mr Mori’s intention to pursue various legal remedies in relation to his employment. Part of Mr Mori’s claim included the payment of three weeks’ wages for the manner of the dismissal. The text messages also indicate Mr Mori’s intention to invoke his rights to compel the finalisation of his apprenticeship. It follows that Mr Mori’s contention that he did not wish to pursue his unfair dismissal rights for fear of reprisal is not credible. The text messages demonstrate that Mr Mori had pursued his concerns regarding matters arising during the employment, as well as in relation to the manner in which he was dismissed, before he had received sign off on his apprenticeship.
I am also not satisfied that Mr Cavallaro ever expressed an intention to refuse to finalise Mr Mori’s apprenticeship. There is no evidence, nor does Mr Mori contend, that Mr Cavallaro expressly indicated that he would not sign off on Mr Mori’s apprenticeship. Mr Mori’s position is, at its highest, an inference based off the fact that Mr Cavallaro had control of the process and because Mr Mori was informed the process would take 14 days from 20 March 2023, but it took until 5 May 2023.
Relevantly, there were two sets of paperwork for Mr Cavallaro to complete. It appears that Mr Cavallaro signed off on the first set of paperwork promptly. However, shortly after Easter 2023, around three weeks after the dismissal, Mr Mori contacted Mr Moncrieff asking whether the paperwork had been completed, and Mr Moncrieff explained that he had not received the second set of paperwork form Mr Cavallaro.
Mr Mori put this to Mr Cavallaro during cross-examination and asked whether Mr Cavallaro had caused the delay. Mr Cavallaro said that he had delayed signing the second set of papers because of Mr Mori’s texts which he found to be offensive. Mr Cavallaro explained both that:
(a) he may have delayed considering the papers by three, four or five days; and
(b) that he did not sign the papers on the night he received them, but that he did it the following day or that week.
Mr Cavallaro denies having delayed the signing of the papers by months.
Mr Cavallaro gave further evidence that he was not in a position to simply sign the papers. While he was satisfied with Mr Mori’s work skills, he was required to consider Mr Mori’s schooling. Further, Mr Cavallaro considered there to be some exchanges involved between himself, the school and the apprenticeship board. In Mr Cavallaro’s view, the matter is not as simple as signing papers; it takes time for the relevant institutions to process these requests. Mr Cavallaro considers the other institutions were simply administering the process and there was no undue delay in this respect.
Mr Cavallaro also relied on the extremely high demand for his services given the regional floods as a reason for any of the delay attributable to him.
I accept that the process for signing the second set of papers was drawn out, and that some of this delay is attributable to Mr Cavallaro as a result of his agitation at receiving Mr Mori’s messages. I also accept Mr Mori’s evidence in relation to his initial conversation with Mr Moncrieff where he was advised the signing-off process usually takes 14 days. Further, on 12 April 2023 Mr Mori texted Mr Cavallaro referring to a second conversation with Mr Moncrieff who said that he sent the papers two weeks ago, being around 29 March 2023. However, I consider the advice that the process “usually takes 14 days” is an approximation for the usual signing off process, and that individual circumstances may differ.
The only evidence before me of the actual process involved in signing the papers is from Mr Cavallaro, whose evidence I consider to be candid in this respect. I accept Mr Cavallaro’s evidence that he had to consider whether to sign Mr Cavallaro off, that any delay on the part of Mr Cavallo can also be attributed to the unusually busy work schedule as a result of the floods, and that any delay caused by Mr Cavallaro not completing the second set of paperwork does not represent an unreasonable portion of the approximately two months it took to complete the finalisation process.
In any event, I am not persuaded that the delay attributable to Mr Cavallaro, or any other matter before the Commission, gives rise to a reasonable inference that Mr Cavallaro would not sign off on Mr Mori’s papers had Mr Mori commenced unfair dismissal proceedings. Rather, Mr Cavallaro had indicated he would take steps to finalise the apprenticeship, and he did in fact take those steps. Specifically, during the text exchange between Mr Mori and Mr Cavallaro on 20 March 2023, Mr Mori inquired whether Mr Cavallaro would sign off on his apprenticeship. Mr Cavallaro responded as follows:
“ok check with bob 1st u r not gettg rid of u r just movg on u r 4th year now i wil chek with the apprtce board ok”
Mr Cavallaro was asked at the hearing whether he ever indicated an intention, or intended, not to sign off on Mr Mori’s apprenticeship. Mr Cavallaro’s response was that he never expressed anything to that effect. Mr Cavallaro instead referred to the text message where he said he “promised” he would sign off on the apprenticeship. While I do not regard any of the text messages as amounting to a promise, I accept that the text message extracted at [60] above indicated a willingness on Mr Cavallaro’s part to finalise the apprenticeship.
The first set of paperwork was promptly completed by Mr Cavallaro. Mr Mori was informed of this during his conversation with Mr Moncrieff shortly after Easter in 2023. It follows that Mr Cavallaro had in fact initiated the process, consistent with his text on 20 March 2023, and Mr Mori was aware of this after Easter in April 2023.
Accordingly, I do not consider Mr Mori’s inference, or assumption, that Mr Cavallaro would not sign off on his apprenticeship papers to be reasonable. It does not provide an acceptable reason for the delay.
The second reason for the delay advanced by Mr Mori relies on Ms McCormack’s advice to him on 20 March 2023 “not to go ahead with the unfair dismissal application through the Fair Work Commission” as Mr Cavallaro had agreed to sign off his apprenticeship.
Ms McCormack was not called to give evidence. On Mr Mori’s account in both his written materials and at the hearing, Ms McCormack was not advising Mr Mori to delay the making of his application pending finalisation of his apprenticeship. She was advising Mr Mori to not make the application at all. Further, Mr Mori explained the basis for Ms McCormack’s advice as her feeling that the unfair dismissal application would “not really be worth it” if his apprenticeship was finalised.
I am not persuaded that Mr Mori’s purported reliance upon Ms McCormack’s advice was reasonable. Mr Mori understood that there was a 21-day statutory timeframe for making the application and was not compelled to adopt Ms McCormack’s view as to the utility of an application. Had Mr Mori sought to make an unfair dismissal application concurrent to his requests for the finalisation of his apprenticeship, he may have done so. This is particularly so given that Mr Mori was otherwise pressing Mr Cavallaro for the resolution of his legal rights, including in relation to the manner of the dismissal as explained at [51] above.
The third reason for the delay given by Mr Mori concerns the demand Mr Mori provided to Mr Cavallaro on 1 May 2023.
Mr Mori relies on the 5-day period in his 1 May 2023 text message to explain the delay up until 6 May 2023. Specifically, Mr Mori gave Mr Cavallaro “5 business days to send me all my 1st year apprenticeship pay slips, all my overtime you owe me that I accumulated over the 3 and a bit years of my apprenticeship.”
I do not accept this to be a credible reason for the delay in the period between 1 May and 6 May 2023 as contended. On 1 May 2023 when this text message was sent, Mr Mori had been in contact with the Fair Work Ombudsman who had, on the evidence, provided Mr Mori with a process for securing any alleged underpayments and payslips. Taking steps to pursue his other legal rights does not provide Mr Mori with an adequate explanation for the delay in commencing unfair dismissal proceedings, particularly in circumstances where Mr Mori understood that there was a 21-day statutory timeframe for the lodgement of his application.
Finally, there is no explanation given for the period from 6 May 2023 to the day the application was lodged on 9 May 2023. By this time, Mr Mori’s apprenticeship had been finalised on 5 May 2023 and Mr Mori had not received a response to his 1 May 2023 demand. Mr Mori’s failure to attend to the filing of his application immediately on 6 May 2023 is unreasonable. To the extent that Mr Mori generally relies on the time required to prepare his application to explain some of the delay, that contention is rejected. I do not accept Mr Mori’s evidence that the application took a “week or something” to produce and lodge, particularly in circumstances where the application was already significantly delayed.
Having regard to the above matters and the conclusions reached, I am not satisfied that Mr Mori has provided an acceptable reason for any part of the delay. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)
Mr Mori was advised by text message on 20 March 2023 that he was being dismissed. Mr Mori responded to that text message the same day.
I am satisfied that Mr Mori was aware the dismissal had taken effect on 20 March 2023. It follows that Mr Mori had the benefit of the full period of 21 days to file an unfair dismissal application in the Commission. This weighs against a finding of exceptional circumstances.
Action taken by the person to dispute the dismissal: s 394(3)(c)
Where an applicant takes action to dispute a dismissal, it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[48]
Mr Mori’s text message on 1 May 2023 put the respondent on notice that he intended to pursue a claim with “fair work” after five days. Part of that claim included the payment of three weeks’ wages for the manner of the dismissal. The text messages which precede the 1 May 2023 text message concern matters unrelated to the dismissal.
While I find that the respondent was on notice of Mr Mori’s intention to dispute the dismissal from 1 May 2023, Mr Mori was dismissed on 20 March 2023 and the application was lodged on 9 May 2023. Accordingly, the respondent was only on notice of an intention to dispute the dismissal for the final seven days of the entire period following the dismissal. As such, while I consider that this matter weighs in favour of a finding of exceptional circumstances, the weight which can be attributed to this factor is, in the circumstances, limited.
Prejudice to the employer: s 394(3)(d)
Mr Mori submits that the respondent has benefited from the delay in filing the application, as Mr Cavallaro “delayed signing me off and giving me my payslips, ignored my multiple communications to him requesting to be signed off and requesting my payslips” while Mr Mori gave the respondent the opportunity to do the right thing.[49] The respondent has not made submissions addressing this factor.
Section 394(3)(d) is not focussed upon whether the respondent benefits from an application being filed out of time. The relevant consideration is whether the delay in filing the application has caused the respondent disadvantage or unfairness. I do not consider that any prejudice to the respondent would arise if an extension of time were to be granted. However, the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.[50]
I consider this to be a neutral consideration.
Merits of the application: s 394(3)(e)
For the consideration in s 394(3)(e) to weigh in favour of a finding of exceptional circumstances, it must be shown that there is some merit in the substantive application.[51] However, this proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[52]
Mr Mori contends that the dismissal was unfair because:[53]
(a) Mr Mori had always been a hardworking and dedicated employee who got along with everyone, and did his job to a high standard, such that he did not deserve to be dismissed;
(b) Mr Mori took limited annual and personal/carer’s leave;
(c) Mr Mori never received any payslips, had to wait months to be paid on occasion, and was never paid the appropriate overtime rate;
(d) Mr Mori was not supported in making his Workcover claim;
(e) Mr Cavallaro made up false reasons in the dismissal text message on 20 March 2023;
(f) Mr Cavallaro blamed Mr Mori for not coming to work even though Mr Cavallaro would not reply to Mr Mori’s text messages;
(g) Mr Cavallaro told Mr Mori in person on 16 March 2023 that he would text or ring to advise what jobsite to go to the next day, but never did so;
(h) the dismissal was without notice or warning;
(i) Mr Mori had to undertake unsafe work and travel for the respondent;
(j) Mr Mori completed his apprenticeship early and Mr Cavallaro would have been required to pay Mr Mori more than the government subsidised apprentice wage.
The respondent considers the dismissal was fair because:[54]
(a) Mr Mori was aware where he would be required to attend work on 17 March 2023;
(b) Mr Mori had taken an unreasonable amount of leave and often with limited or no notice and was aware of the high workload given the regional flooding;
(c) Mr Mori was not working as part of a team and had lost interest;
(d) Mr Mori would not show up to work without providing a reason;
(e) payment was made fortnightly except on occasions due to the flooding;
(f) Mr Mori had to be asked constantly to clean up;
(g) Mr Mori had been sent all the relevant payslips and was paid above the pre-apprentice wage; and
(h) Mr Mori did not have sufficient tools for a fourth year apprentice in receipt of an allowance.
I note the respondent also refers to its intention to raise further issues should the matter proceed. As these matters are only mentioned vaguely and there is no direct or indirect evidence to give further meaning to the matters, I do not consider it appropriate to take them into account for the purposes of s 394(3)(e) as that would amount to hypothesising about the potential case the respondent might make.
On the evidence before me, I am unable to form a view on the merits of the application. While I accept that Mr Mori was terminated with limited or no notice, I am unable to consider whether there was a valid reason for the dismissal. Significantly, the parties consider the reason for the dismissal to be different, with Mr Mori seemingly alleging that he may have been dismissed because his wages were about to increase substantially as his apprenticeship concluded. Further, the parties are in dispute on key facts including the notice given by Mr Mori for the taking of annual leave, Mr Mori’s engagement with his work, the pay rate, overtime and payslips issues and the manner in which information regarding work locations was to be communicated.
The Commission should not embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time. I consider this factor to be neutral in my assessment.
Fairness as between Mr Mori and other persons in a similar position: s 394(3)(f)
Mr Mori considers that the following matters are relevant in assessing fairness:[55]
(a) Mr Mori’s age, being a young employee;
(b) Mr Mori’s unfamiliarity with the Commission’s unfair dismissal jurisdiction;
(c) Mr Mori’s reliance on advice from Ms McCormack; and
(d) Mr Mori’s reliance on Mr Cavallaro who indicated he would sign off on his apprenticeship.
Mr Mori has not addressed any matter of “fairness” in the relevant sense and nor do I consider that any matter arises on the evidence before the Commission. Accordingly, this is neutral in my consideration.
Are there exceptional circumstances?
The test of exceptional circumstances in s 394(3) of the Act is a stringent one, establishing a high hurdle for an applicant for an extension.[56] Having regard to my consideration of the statutory criteria, and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.
Order and disposition
As I am not satisfied that there are exceptional circumstances in this case, the power to extend the time in which Mr Mori’s unfair dismissal application may be made is not enlivened. Accordingly, Mr Mori’s unfair dismissal application does not meet the requirements of the Act.
Mr Mori’s application for an unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr S Mori, the applicant
Mr M Cavallaro, on behalf of the respondent
Hearing details:
30 May 2023, by Microsoft Teams
[1] Form F2 at p.2; Form F3 at 1.2
[2] Exhibit 1 (Witness statement of Stefan Mori)
[3] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [7(1)]
[4] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [7(1)]
[5] Respondent outline of submissions at p.1
[6] See also, Respondent outline of submissions at p.1
[7] Exhibit 3 (Bundle of text messages)
[8] Respondent outline of submissions at p.1
[9] See also, Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [5]
[10] Respondent outline of submissions at p.1
[11] Respondent outline of submissions at p.1
[12] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[13] Respondent outline of submissions at p.2
[14] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [7(3)]
[15] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [5]
[16] Ibid
[17] Respondent outline of submissions at p.1
[18] Ibid
[19] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [5]
[20] Ibid
[21] Exhibit 1 (Witness statement of Stefan Mori); Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [5]; Exhibit 3 (Bundle of text messages)
[22] Form F2 at p.2; Form F3 at 1.4
[23] Exhibit 1 (Witness statement of Stefan Mori); Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [5]; Exhibit 3 (Bundle of text messages)
[24] Ibid
[25] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4] and [5]
[26] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[27] Exhibit 1 (Witness statement of Stefan Mori); Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [5]; Exhibit 3 (Bundle of text messages)
[28] Ibid
[29] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[30] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[31] Exhibit 3 (Bundle of text messages)
[32] Ibid
[33] Exhibit 3 (Bundle of text messages)
[34] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[35] Exhibit 3 (Bundle of text messages)
[36] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[37] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[38] Exhibit 3 (Bundle of text messages)
[39] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[40] Ibid
[41] [2011] 203 IR 1
[42] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[43] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]
[44] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]
[45] Form F2 at p.2; Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[46] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [4]
[47] Form F2 at p.2
[48] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
[49] Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [6]
[50] C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38]
[51] Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 at [71]
[52] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T2421 at [14]
[53] Form F2 at p.3; Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [7]
[54] Respondent outline of submissions; Form F3 at 3.2
[55] Form F2 at p.3; Exhibit 2 (Applicant Outline of Argument: Extension of Time) at [8]
[56] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; (2018) 273 IR 156 at [14] citing Lombardo v Commonwealth[2014] FWCFB 2288 at [21]
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