Tony De Coppi v Emirge Pty Ltd - [2023] FWC 2559

[2023] FWC 2559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tony De Coppi
v

Emirge Pty Ltd

(U2023/7345)

COMMISSIONER LIM

PERTH, 11 OCTOBER 2023

Application for an unfair dismissal remedy

This decision concerns Mr Tony De Coppi’s (Applicant or Mr De Coppi) application for an unfair dismissal remedy (Application) pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).

The Applicant’s employment with Emirge Pty Ltd (Respondent) commenced on 14 March 2022 and concluded on 2 June 2023. The Application was lodged with the Fair Work Commission (Commission) on 8 August 2023.

Section 394(2) of the FW Act provides that such an application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows.

As the Applicant was terminated on 2 June 2023, the period of 21 days in this case ended at midnight on 23 June 2023. It was not contested that the Application was filed 46 days after the 21-day limit.

The Applicant requests the Commission grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was conducted on 9 October 2023 via MS Teams to determine the extension of time matter.

The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) must be taken into account.

Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and accordingly there is no basis to grant an extension of time. Consequently, the Application is dismissed.

The detailed reasons for my decision are outlined below.

Events associated with the dismissal and leading to lodgement of this application

The Respondent is a small design and construction company based in Western Australia. The Applicant was employed on a full-time basis as a Project Manager.

On 2 June 2023, the Applicant had a phone conversation with Mr Robert Dye, the Managing Director for the Respondent.

During this conversation, Mr Dye informed the Applicant that he was being made redundant effective from that day. This was because the Respondent only had one project remaining under construction and that the Respondent’s other projects in the pipeline had been delayed. Mr Dye further informed the Applicant that he would be receiving an email with a formal letter later that day.

The Applicant does not contest that his role has not been filled or replaced, and that the Respondent does not have the work to sustain his former position.

The Applicant gave evidence that he understood that his employment concluded on 2 June 2023,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 2559
Decision Date: 11 OCTOBER 2023

CaseChat Overview and Summary

Tony De Coppi, an employee of Emirge Pty Ltd, applied for an unfair dismissal remedy under the Fair Work Act 2009 after being terminated from his position as Project Manager. Emirge Pty Ltd opposed the application on the grounds that it was not made within the statutory 21-day period. De Coppi argued that exceptional circumstances warranted an extension of the filing period. The Fair Work Commission was tasked with determining whether De Coppi's application was within the legal time frame and, if not, whether exceptional circumstances justified an extension.

The Commission examined the application under section 394(3) of the Act, which allows for an extension if there are exceptional circumstances. This required consideration of various factors, including the reason for the delay, when De Coppi became aware of the dismissal, his actions to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness compared to others in similar situations. The Commission found that while De Coppi's personal circumstances, including his daughter's health issues, were genuine and impacted his ability to act promptly, they did not constitute exceptional circumstances as he had the means and opportunity to file the application within the statutory period. Additionally, his lack of legal knowledge did not sufficiently explain the delay. The Commission also noted that De Coppi had the opportunity to engage with the employer and seek new employment during the delay period, further undermining his claim for an extension.

The Commission concluded that De Coppi had not provided a satisfactory explanation for most of the delay, and most of the other factors considered were either neutral or did not support a finding of exceptional circumstances. As a result, the application for an extension of time was denied, and the application for an unfair dismissal remedy was dismissed for being out of time.

The Commission issued an order dismissing the application for an unfair dismissal remedy as it was not filed within the required time frame and no exceptional circumstances were found to justify an extension.

Orders