Vince Scagliotta v Floorpag Pty Limited T/A Harvey Norman Carpet Warehouse Silverwater

[2017] FWC 621

[2017] FWC 621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vince Scagliotta
v
Floorpag Pty Limited T/A Harvey Norman Carpet Warehouse Silverwater
(U2016/12898)

COMMISSIONER PLATT ADELAIDE, 30 JANUARY 2017

Application for relief from unfair dismissal – extension of time application – application dismissed.

[1] Mr Vince Scagliotta lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Harvey Norman T/A Floorpag Pty Ltd.

[2] The F3 Employer’s Response advised that the correct name of the respondent is Floorpag Pty Limited T/A Harvey Norman Carpet Warehouse Silverwater (Floorpag). Accordingly, I have utilised the discretion in s.586 of the Act to amend the application.

[3] Mr Scagliotta was dismissed on 22 September 2016 and lodged his application on 25 October 2016.

[4] Mr Scagliotta’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“my father died a couple of weeks before, so i was still grieving, 2 weeks after my dismissal i emailed and then rang Allan Dingwall no response And then 1 week after that I emailed and rang again and still no response And i was not aware of a 21 day rule [sic]”

[5] On 15 December 2016, my Associate corresponded with Mr Scagliotta and Floorpag and advised that the extension of time issue would be considered at a telephone conference on 30 January 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Scagliotta was directed to provide a statement concerning the extension of time and any documents to be relied upon by 20 January 2017. Floorpag was invited to file any material in reply by 25 January 2017.

[6] Floorpag filed an F3 Employer’s Response on or about 10 November 2016 and raised the jurisdictional objection on the basis that the application was lodged out of time.

[7] Mr Scagliotta provided a written submission summarised as follows:

• His father died on 31 August 2016 and this affected his life enormously.



• He was required to assist his mother.



• He had shared custody of two children aged 15 and 18 years old.



• He emailed Mr Dingwall on 6 October 2016 and stated he was not happy about how he got sacked.



• On 11 October 2016 he followed up the 6 October 2016 email.



• On 13 October 2016 he sent a final email asking for a discussion about the dismissal.



• He did not receive any reply to his email or follow-up telephone calls and lodged his application on 25 October 2016.

[8] Floorpag did not file a submission.

[9] A hearing was conducted by way of telephone conference on 30 January 2017. Mr Scagliotta attended and Mr Allan Dingwall (Director) represented Floorpag. A sound file record of the telephone conference was kept.

[10] At the telephone conference Mr Scagliotta expanded on the material filed and advised;

• After his father’s death he needed some time to grieve and assist his mother.



• On 6 October 2016 he felt able to raise his complaint about his dismissal with Mr Dingwall and did so via email.



• Not having had a response he sent a follow-up email on 11 October 2016, he also sought to telephone Mr Dingwall.



• On 13 October 2016 he sent a further email.



• On 23 October 2016 he went to the Fair Work Commission website to find out information.



• On 25 October 2016 the application was filed.



• Mr Scagliotta felt the process that accompanied the dismissal to be unfair.

[11] At the telephone conference Mr Dingwall, on behalf of Floorpag, objected to the extension of time on the basis that;

• Mr Scagliotta’s employment was dismissed due to unsatisfactory conduct.



• He did not respond to the post dismissal contact as he had no intention of reinstating Mr Scagliotta.

[12] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking 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.”

[13] Mr Scagliotta’s unfair dismissal application was made 12 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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 are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[15] Mr Scagliotta contends that he was unable to lodge his unfair dismissal application because of the impact of his father’s death which occurred on 31 August 2016. Whilst this unfortunate event explains the delay until 6 October 2016 when Mr Scagliotta commenced to correspond with Mr Dingwall, it does not explain the period after 13 October 2016 when it should have been clear to Mr Scagliotta that Mr Dingwall was not responding to his attempts to contact him.

[16] Mr Scagliotta contends he was unaware of the 21 day time limit. Whilst this may be true it is not a satisfactory explanation for the delay, Mr Scagliotta visited the Fair Work Commission website on 23 October 2016 but chose not to complete his application on that day, having now been aware of the time limit. He waited a further 2 days before completing the claim.

[17] The applicant needs to provide a credible explanation for the entire period of the delay. 2

[18] Simply put, Mr Scagliotta had no reason to delay lodging his claim after 13 October 2016.

[19] There is no submission that the granting of an extension of time represents prejudice to Floorpag.

[20] In terms of the merits of the application, there is a dispute as to what occurred and the appropriateness of the disciplinary process, I am unable to resolve the factual dispute and accordingly I have regarded the merits as a neutral factor.

Conclusion

[21] For the reasons I have set out above, I am not satisfied that Mr Scagliotta’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Scagliotta, on his own behalf.

Mr Dingwall on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

January 30.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 3   PR589815

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<Price code C, PR589814>