Vince Rapisardi v Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia

[2022] FWC 774

[2022] FWC 774

The attached document replaces the document previously issued with the above code on 6 April 2022.

Typographical changes to dates in paragraph [17].

Associate to Deputy President Young.

Dated 7 April 2022.

[2022] FWC 774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Vince Rapisardi

v

Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia

(C2022/545)

DEPUTY PRESIDENT YOUNG MELBOURNE, 6 APRIL 2022

Application to deal with contraventions involving dismissal– extension of time – circumstances not exceptional – application dismissed.

1. This decision concerns an application by Mr Vince Rapisardi under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

1. It is uncontested that Mr Rapisardi’s employment with the Respondent ended on 3 December 2021. The GP Application was lodged on 15 January 2022. The period of 21 days ended at midnight on 24 December 2021 and the GP Application was therefore lodged 22 days out of time. Mr Rapisardi seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent company opposes the grant of an extension of time.

1. A hearing was held by Microsoft Teams Audio on 4 April 2022. Mr Glenn Floyd appeared on behalf of Mr Rapisardi. Pursuant to section 596 of the Act, Ms Heidi Dopson of HWL Ebsworth lawyers, appeared on behalf of the Respondent.

1. Mr Rapisardi did not file a witness statement as directed. Accordingly, it was agreed that the email filed by Mr Rapisardi with the Commission on 28 February 2022 would be taken as his evidence. Ms Vicki Kotkiewicz, National Manager, Human Resources Aviation of the Respondent filed a witness statement. The Applicant did not require Ms Kotkiewicz for cross examination. Accordingly, Ms Kotkiewicz’s witness statement was received by the Commission and she did not attend the hearing.

1. I interpose at this point to note that Mr Rapisardi , for reasons that follow, submits that the GP Application was lodged in time and, accordingly, a grant of an extension of time is not required. On this basis, despite being invited to do so at the hearing, Mr Rapisardi declined to make any submissions on the matters I am required to consider under section 366(2)(b) - (e) of the Act inclusive and limited his oral submissions to matters arising under section 366(2)(a) only. His written submission were also largely limited to matters going to section 366(2)(a).

Background

1. The Respondent is a part of the Investigation and Security Services Industry. Mr Rapisardi commenced employment with the Respondent in March 2006 and was most recently employed by the Respondent in the role of Aviation Security Guard Protective Services at the Sydney Airport Precinct. The Respondent terminated Mr Rapisardi’s employment on 3 December 2021.

1. On 24 December 2021 Mr Rapisardi lodged an application for the Commission to deal with an unlawful termination dispute pursuant to section 773 of the Act (Unlawful Termination Application). On 4 January 2022 Mr Rapisardi discontinued the Unlawful Termination Application and lodged an application for unfair dismissal pursuant to section 394 of the Act (Unfair Dismissal Application). On 5 January 2022 Mr Rapisardi lodged a general protections application (First GP Application). On 11 January 2022 Mr Rapisardi discontinued the First GP Application and the Unfair Dismissal Application.  As already set out, Mr Rapisardi lodged the GP Application on 15 January 2022.

Consideration

1. The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[1]

1. The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[2] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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.[3]

1. Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(a)         the reason for the delay; and

(b)         any action taken by the person to dispute the dismissal; and

(c)         prejudice to the employer (including prejudice caused by the delay); and

(d)         the merits of the application; and

(e)         fairness as between the person and other persons in a like position.

Reason for delay

1. The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[6] the Full Bench noted that the absence of an 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 the circumstances must be considered.[7] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[8]

1. Firstly, Mr Rapisardi submits that no extension of time is necessary as the Unlawful Termination Application was lodged within the statutory time frame.[9]  He relies on an email from the Brisbane Registry dated 30 December 2021[10] (Email) which read as follows:

“The Fair Work Commission received your application on 24 December 2021.

Your application was lodged in line with the Fair Work Commission Rules 2013. You do not need to send us a hard copy of your application.

Your case number is: C2021/8867

We need more information from you

We will send you another email telling you what do next. Please respond as soon as possible so that your application can proceed.

You can call us about your application on 1300 799 675. Please have your case number ready if you call us.”

1. Mr Rapisardi submits that the statement “your application was lodged in line with the Fair Work Commission Rules 2013” amounted to an acceptance that his GP Application (Form F8) was lodged within 21 days.[11]

1. Secondly, Mr Rapisardi submits that the Commission confirmed that the “F8 application” was lodged on 24 December 2021 and the Commission was closed until 4 January 2021. He says that he telephoned the Commission on 4 January 201 and again on 11 January 2021 and was advised to “submit an amended form F8”, which he did on 15 January 2022.[12]

1. Thirdly, at hearing Mr Rapisardi’s evidence was that he was confused as to which application to make.

1. As to Mr Rapisardi’s assertion that no extension of time is necessary, the application that was made on 24 December 2021, and to which the Email was directed, was an unlawful termination application under section 773 of the Act.  The Form F9 clearly identifies this. Whilst that application was made within the statutory time frame, it does not establish that the GP Application was made within time.  An unlawful termination application is not the same as, nor interchangeable with, a general protections application involving dismissal.

1. Further, it is not the case that the Commission was closed until 4 January 2022. The Commission was open on 30 and 31 December 2021.  Indeed, a search of the Commission’s file demonstrates that the Commission telephoned Mr Rapisardi on 30 December 2021 at 2.40 pm on the telephone number provided in his Form F9 (30 December Telephone Call). A message was left for Mr Rapisardi stating that the application lodged may not be the correct application for his circumstances and requesting he call the Commission.  In addition, Mr Rapisardi was informed that the Unlawful Termination Application was incomplete as he had not completed questions 2.4 or question 3.2 of the Form F9.  The Commission Helpline and matter number were also left on the message for Mr Rapisardi.

1. Mr Rapisardi did not contact the Commission on 30 or 31 December 2021 but waited until 4 January 2022. At hearing he did not make any reference to the 30 December Telephone Call in his evidence, nor is this referenced elsewhere in his material, and he provided no explanation for the delay in contacting the Commission. In his telephone call to the Commission Helpline on 4 January 2022 (4 January Telephone Call), which occurred at 11.38 am, Mr Rapisardi said that he had filed the wrong form, withdrew the Unlawful Termination Application and said that he would file an unfair dismissal application that day. 

1. Mr Rapisardi filed the Unfair Dismissal Application at 11.44 am on 4 January 2022. On 5 January 2022 Mr Rapisardi filed the First GP Application. Both of these applications were filed outside the statutory time frame and neither were signed. At question 1.4 of the First GP Application Mr Rapisardi states as follows:

“I made an application within 21 days using the F9 form .

I emailed the F9 application and waited for a reply .

Being close to Christmas we next had public holidays and fair work was closed .
When public holidays were over and fair work reopened I called fair work replying to their email and to make my payment.

On my call with fair work I mentioned that a few days earlier I was informed that the F9 form was not the correct form for my situation . Fair work said apply again using the appropriate form for your situation and they would cancel the earlier F9 form and advise me about the correct form that I was now using .
I sent a F2 form by mistake which im cancelling.”

1. On 7 January 2022 at 1.54 pm the Commission telephoned Mr Rapisardi.  Mr Rapisardi did not answer and a voicemail was left identifying that Mr Rapisardi had made multiple applications and that the applications were incomplete. The Commission requested Mr Rapisardi return the call. Mr Rapisadi did not return the Commission’s call until 3.34 pm on 11 January 2022 (11 January Telephone Call). In that telephone call Mr Rapisardi confirmed that he now had representation and had been advised by his representative to complete and file a new Form F8. The recording of the 11 January Telephone Call demonstrates that the Commission advised Mr Rapisardi to seek advice from his representative before discontinuing the previous applications and he was also advised that any new Form F8 application would also be out of time. Further, Mr Rapisardi was advised that it would be a matter for a Member of the Commission as to whether an extension of time would be granted for any new application made. Mr Rapisardi was not, as he asserts, advised in that call to file an amended Form F8.  Mr Rapisardi verbally discontinued the Unfair Dismissal Application and the First GP Application.

1. On 15 January 2022 Mr Rapisardi lodged the GP Application.

1. The prior lodgement of an erroneous application to the Commission has been considered an acceptable reason for the delay in lodgement of a second application.[13]

1. In Hambridge v Spotless Facilities Services Pty Ltd[14] the Full Bench of the Commission said:

“… A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant’s access to the Commission’s jurisdiction.”

1. However, upon realising that an incorrect application has been made it is incumbent on an applicant to act swiftly in making the correct application.[15] I do not consider that Mr Rapisardi has done so. Mr Rapisardi was advised on 30 December 2021 that the Unlawful Termination Application may not be the correct application. Mr Rapisardi did not action that information until 4 January 2022, despite the Commission being open on 30 and 31 January 2021. Mr Rapisardi then filed the Unfair Dismissal Application.  I do not consider this to be an error as stated in the First GP Application. It is entirely consistent with his stated intention in the 4 January Telephone Call and appears to be an application available to him. Next, Mr Rapisardi filed the First GP Application.  Mr Rapisardi did not respond expeditiously to contact by the Commission on 7 January 2022 regarding the filing of multiple applications but waited until the afternoon of 11 January 2022 to contact the Commission. He provided no explanation for this delay. Further, upon discontinuing the Unfair Dismissal Application and the First GP Application and being advised that any new application would be out of time, Mr Rapisardi did not file the GP Application expeditiously but waited a further four days to do so. There is also no explanation for this further period of delay. Additionally, at this time Mr Rapisardi had the benefit of Mr Floyd’s representation. Finally, I note that the Form F9 and the Form F8 filed in the GP Application are not in the same form and do not plead the same case. Mr Rapisardi ultimately conceded this under cross examination. Accordingly, I reject that this may be properly characterised as Mr Rapisardi simply filing the wrong “form”.

1. Finally, as to Mr Rapisardi being confused as to which application to make it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement.[16] Additionally, the Commission’s website provides clear information regarding the accessibility of the unlawful termination laws. Under the heading “When you can and cannot apply for unlawful termination” the website provides as follows:

“You can make an unlawful termination application if:

•     you are dismissed from your job AND

•     your employer dismisses you because, or for reasons which include a prohibited reason AND

•     you are not a national systems employee OR you are a national system employee and you are not entitled to make a general protections dismissal application because the reason or reasons for the dismissal are not prohibited reasons under the Fair Work Act.”

1. Accordingly, there is readily available information on the Commission’s website regarding eligibility to lodge dismissal applications. A preliminary perusal of that information demonstrates that Mr Rapisardi was ineligible to make the Unlawful Termination Application.

1. Further, question 2.4 of the Form F9 contains the following question:

“Section 723 of the Fair Work Act 2009 provides that a person must not make an
unlawful termination application in relation to conduct if the person is able to make a
general protections court application in relation to the conduct (see Division 8 of Part
3-1). Do you consider that you are not entitled to make a general protections court

application?”

1. Mr Rapisardi did not answer this question. Nor did he identify any unlawful reason for the termination of his employment as is required by question 3.2 of the Form F9. Question 3.2 commences as follows:

“An unlawful termination application should only be made if the employer terminated your employment for one or more of the unlawful reasons found in section 772 of the Fair Work Act 2009 listed below”.

1. Thereafter there are 22 unlawful reasons which may be selected as the basis for the application, under the following headings:

• Temporary absence due to illness or injury;

• Trade union membership or participation in trade union activities;

• Filing a complaint or participating in proceedings;

• Discrimination; and

• Temporary absence due to voluntary emergency management activity.

1. Mr Rapisardi did not select any reason from any of the above options.

1. In addition, the Commission’s website contains readily available information in relation to general protections applications and unfair dismissal applications.

1. Rather than being confused, I consider that Mr Rapisardi has failed to avail himself of publicly available information regarding the type of application to make and to consider which is applicable to his circumstances. Mr Rapisardi has filed and discontinued multiple applications of varying types, in a seemingly undiscerning manner, all of which were incomplete and unable to be progressed, other than the GP Application which was filed 22 days out of time.

1. In light of all of the above, I do not consider that Mr Rapisardi has provided a reasonable or acceptable explanation for the delay in lodgement. This weighs against the grant of an extension of time.

Action taken by the person to dispute the dismissal

1. As set out above, Mr Rapisardi lodged the Unlawful Termination Application on 24 December 2021. I consider he therefore took action to dispute his dismissal. This weighs in favour of granting an extension of time.

Prejudice to the employer

1. The Respondent submits that the delay in filing the GP Application has put it to the inconvenience and expense of dealing with the current extension of time application.[17] I do not consider this to give rise to any significant prejudice to the Respondent and cannot identify any particular prejudice that would accrue to it were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

1. An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

1. Mr Rapisardi says that in terminating his employment the Respondent took adverse action against him in breach of section 340, 343, 344 and 351 of the Act.[18] The Respondent accepts that adverse action in the form of dismissal was taken against Mr Rapisardi but denies any adverse action was taken because of Mr Rapisardi’s workplace rights, his religious beliefs or political opinion or that it attempted to coerce or place undue influence or pressure on Mr Rapisardi to exercise or not exercise his workplace rights. The Respondent says that it terminated Mr Rapisardi’s employment because he failed to comply with a reasonable and lawful direction, its COVID-19 Vaccination Policy and the Public Health (COVID-19 Air Transport Quarantine) Order (No 3) 2021.[19]

1. Although the merits of the matter have not been fully tested, on the material currently before me Mr Rapisardi’s application appears to have little merit.  This weighs against the grant of an extension of time.

Fairness as between the person and another person in a like position

1. Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[20] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[21]

I do not find the Respondent’s submissions on this point[22] to be of assistance. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Rapisardi and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

1. The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

1. Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Rapisardi’s application.

1. Accordingly, I decline to grant an extension of time under section 366(2). Mr Rapisardi’s application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

G Floyd for the Applicant
H Dopson for the Respondent

Hearing details:

2022
Melbourne (by Microsoft Teams)
4 April 2022

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

[2] [2011] FWAFB 975

[3] Ibid at [13]

[4] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

[5] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

[6] [2018] FWCFB 901

[7] Ibid at [39]

[8] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v   Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

[9] Exhibit A1, Exhibit A2, q.1(d)

[10] Exhibit A1

[11] Exhibit A2, q.1(d) and 1(f)

[12] Exhibit A1, Exhibit A2,q.1(d)

[13] Lane v Kangaroo Island Drive & Adventures Pty Ltd[2010] FWA 3939; Nash v Discovery Holiday Parks Barossa – Tanunda[2015] FWC 380; Green v Bilco Group Pty Ltd[2018] FWC 6818

[14] [2017] FWCFB 2811 at [41]

[15] Kelly v The Alphabet Academy Sydney Pty Ltd T/A The Alphabet Academy[2017] FWC 3090 at [15]

[16] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

[17] Exhibit R2 at [51]

[18] Exhibit A2, q.1(h)

[19] Exhibit R2 at [56-59], [62]

[20] Wilson v Woolworths [2010] WA 2480 at [24-29]

[21] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]

[22] Exhibit R2 at [64-66]

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