Tony De Coppi v Emirge Pty Ltd
[2023] FWC 2559
•11 OCTOBER 2023
| [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, and started looking for new employment the next day.
Later that day at 8:21pm, the Respondent’s Contract Administrator, Ms Nicole Knight, emailed the Applicant a letter (Redundancy Letter) which stated:
“Dear Tony,
RE: NOTIFICATION OF REDUNDANCY
Further to our discussion this afternoon, we hereby confirm that your position of Project Manager is now redundant.
Emirge will provide four weeks salary and superannuation entitlement in addition to annual leave owing. We have made payment of $4,782.96 to your nominated account today. The balance will be released upon the return of all company property and the attached declaration confirming this and that you have not retained any sensitive company information.
It is expected that within the four week redundancy period that you will continue to represent the company professionally should you be contacted with regards to works for the Shire of Ashburton and that you will promptly notify Emirge of all relevant matters.
We will you all the best in your future endeavours.”
Attached to the Redundancy Letter was a form for the Applicant to sign once company property such as keys, hard copies of project documentation, IT equipment and tools were returned (Redundancy Letter Declaration).
This email bounced back as there were IT issues with the Applicant’s email account.
On 5 June 2023, the Applicant called either Mr Dye or Ms Knight to relay that he had not received the Redundancy Letter.
Later that day at 1:10pm, Ms Knight re-sent the Redundancy Letter to the Applicant.[1]
On 8 June 2023, the Applicant’s daughter was admitted to Perth Children's Hospital for urgent health care. She was discharged on 9 June 2023, however required 24/7 care for the next 8 weeks.
During this period, the Applicant’s daughter attended school on a reduced time basis. The Applicant gave evidence that either he or his wife were always with his daughter whenever she was not at school.
Over the course of 7 June 2023 to 16 June 2023, the Applicant challenged the Respondent over the calculation of his redundancy payment and his final payout.
On 14 June 2023, the Applicant signed and returned the Redundancy Letter Declaration to the Respondent.
On 16 June 2023 at 11:07am, the Applicant received a letter from Ms Knight that outlined the Respondent’s final calculations regarding his redundancy and leave payments (Final Calculations Letter). The letter stated, ‘if you agree with the above calculations, please sign, and return the page overleaf and we will release the funds. Should there be any queries or disputes regarding the calculations, please direct all correspondence to Harold Paiker.’
After receiving this email, the Applicant had a phone conversation with Mr Dye. The Applicant contested the Final Calculations Letter on the basis that the Respondent had factored an outstanding loan amount into the final payout calculations.
The Applicant’s evidence is that he explained to Mr Dye that he was going through personal hardship. The Applicant tried to negotiate on the final payout calculations. Mr Dye indicated he would consider the Applicant’s request and ended the call. A few minutes later, Mr Dye called the Applicant back and informed him that the final payout calculations would not change.
At 2:38pm, the Applicant sent an email to Mr Dye stating, ‘Hi Rob, I will accept your offer. I am on the road at [the] moment. Can you please process pay and I will send signed document when I get him [sic] this evening.’
Between 20 – 27 June 2023, the Applicant travelled up the coast of Western Australia. The trip was both for work and to take a break with his daughter. The pair visited worksites and travelled through Geraldton, Shark Bay, Monkey Mia and Exmouth.
The Applicant submitted that during this trip he had limited mobile coverage. However, under cross-examination he accepted that he had mobile and internet coverage in each of the mentioned locations.
When asked why he did not lodge his unfair dismissal application during this week, the Applicant explained that he had not lodged as he did not think that he had a claim.
On 27 June 2023, the Applicant commenced short-term employment that required him to drive to areas of Western Australia’s south-west, such as Albany and Bunbury.
On or around 16 July 2023, the Applicant spoke to a friend who is a lawyer. The friend advised the Applicant that he should challenge the redundancy.
On 16 July 2023, the Applicant sent the Respondent a letter of demand regarding the outstanding loan amount that was deducted from his final payout.
On 18 July 2023, the Applicant received correspondence from the Respondent stating that there would be no further payments in respect to his redundancy.
On 8 August 2023, the Applicant lodged the Application.
Should an extension of time be granted?
Under s 394(2) and (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. It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[2] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[3]
When determining whether there are exceptional circumstances, s 394(3) requires the Commission to take into account:
(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.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[4]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 23 June 2023. The delay is the period commencing immediately after that time until 8 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[5]
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.[6]
An applicant 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 applicant has not provided any reason for any part of the delay.[7]
I accept that the Applicant was undergoing significant stress regarding his daughter’s health and that this had an impact on his time, resources, and state of mind.
I also accept that the Applicant did not know about the 21-day time limit for lodging an application.
An applicant’s emotional state or mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances, that evidence must be cogent and inform the context and explanation as to why the application was delayed. Anger, distress and anxiety may not of themselves be sufficient.[8]
It is also well established that lack of awareness about the law, without more, is not a satisfactory explanation or an indicator of exceptional circumstance.[9]
I find that the Applicant’s personal circumstances were genuine and provide some of the context for how he approached the matter. However, based on the evidence provided, I am not satisfied that his personal circumstances, when considered as a whole and in context, are such that the Applicant was unable to make reasonable inquiries and lodge the application on time.
I particularly note that the Applicant had the time and opportunity to engage with the Respondent and take up new work in June and July 2023. It follows that he had the means and opportunity to lodge an unfair dismissal application during this time.
During cross-examination, the Respondent asked the Applicant why he had not lodged the Application after speaking with his lawyer friend on 16 July 2023. The Applicant’s evidence was that he had, ‘no excuse’ and that ‘the days got away from me’.
Accordingly, I consider that the Applicant has not provided a satisfactory explanation for most of the period of the delay in making the unfair dismissal.
Whether the person first became aware of the dismissal after it had taken effect.
During the hearing, the Applicant’s evidence was that he understood that he was being made redundant on 2 June 2023 and began the process of finding new employment. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did challenge the final payout calculations, but this was arguably due to how the outstanding loan amount was deducted, rather than the dismissal itself. I consider this factor neutral to a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The Applicant submits that the Respondent is not disadvantaged by the delay on the basis that he is not seeking reinstatement. The Respondent did not contest this point. I consider this factor supports a finding of exceptional circumstances.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[10] Further, the primary consideration is whether the Applicant has an arguable case.[11]
The Applicant submitted during the hearing that he is only challenging his dismissal on the basis that the Respondent did not comply with s 389(1)(b). Section 389 sets out the meaning of a genuine redundancy, which includes the requirement in s 389(1)(b) for an employer to comply with any obligation in an applicable modern award or enterprise agreement to consult about the redundancy.
The Applicant conceded that his employment with the Respondent was not covered by an enterprise agreement. The Applicant could not answer whether his employment was covered by a modern award, however the Respondent did not advance any argument on this point.
I find this factor neutral in assessing whether there are exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
I have found that the considerations in s 394(3) of the Act are mostly of neutral significance in this matter.
The notable exception is s 394(3)(a). Though I accept the genuineness of the Applicant’s personal situation, I do not find that he has provided a satisfactory explanation for the majority of the delay. I find that this outweighs the finding in s 394(3)(d).
Having considered all the circumstances of this matter and the factors in s 394(3), I am not satisfied that there are exceptional circumstances.
As the Application was lodged beyond the initial period provided by s 394(2)(a) of the Act and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis it is appropriate to dismiss the Application and an Order[12] to this effect will be issued with this Decision.
COMMISSIONER
Appearances:
T Di Coppi, Applicant
N Knight for the Respondent
Hearing details:
Perth (via Microsoft Teams):
9 October 2023
[1] Digital Court Book, page 61.
[2] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[5] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[8] See Underwood v Terra Firma Pty Ltd t/a Terra Firma Business Consulting[2015] FWCFB 3435 at [15] and [16]; Mathew Oliver v Bunnings Group Limited[2021] FWCFB 3496.
[9] Nulty v Blue Star Group [2011] FWAFB 975 and Miller v Allianz Insurance Australia [2016] FWCFB 5472.
[10] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[11] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].
[12] PR767020
Printed by authority of the Commonwealth Government Printer
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