Vito Piserchia v Kmart Australia Limited

[2014] FWC 4803

[2014] FWC 4803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vito Piserchia
v
Kmart Australia Limited
(U2014/7664)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 JULY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] This decision sets out the reasons for my conclusion that Mr Piserchia's unfair dismissal application will be dismissed on the basis that it was lodged outside of the time limit specified in s.394(2) of the Fair Work Act 2009 (the FW Act).

[2] On 30 May 2014 Mr Piserchia lodged an application pursuant to s.394 of the FW Act, through which he sought relief in relation to the termination of his employment with Kmart Australia Pty Ltd (Kmart).

[3] In that application, Mr Piserchia advised that his dismissal took effect on either 25 March 2014 or 25 April 2014. He advised that the Fair Work Commission (FWC) should take into account the following information in considering whether to accept his application out of time.

“The Applicant seeks an extension of time for the lodgement of this claim for the following reasons:

From the date of termination ongoing the Applicant has suffered emotional and psychological meltdown. He has become reclusive and has been entirely unable to speak with any of his friends and the majority of whom associates formerly had worked with the Respondent. He has felt highly reluctant to face members of the public and has been forced to relocate from Port Lincoln to Adelaide to live with his mother for support.

The Applicant has sought medical assistance both in the lead up to the Second Meeting and following the Third Meeting. He has been diagnosed as having a dangerous medical condition consistent with very high levels of stress accompanied by unsustainably high levels of blood pressure, for which condition he has been prescribed medication and directed to avoid engaging in any activities that may cause stress of any kind.

The medication with which the Applicant has been prescribed to control his blood pressure has caused severe side effects in the form of nausea, tiredness, physical fatigue and has impacted upon his cognitive abilities. Following the cessation of the Applicant taking the medication the Applicant’s condition has slowly improved such that he attended on his GP on Friday 23 May 2014 and was for the first time since the date of the Second Meeting advised that his high blood pressure level had been controlled and he was in a medically safe condition.

On Monday 26 May 2014 the Applicant contacted solicitors at the firm of RSA Law and sought legal advice regarding his pursuing the within Application which advice was provided on 28 May 2014, and following which advice the Applicant instructed his lawyers to prepare and issue the within Application as a matter of urgency.” 1

[4] The application was referred to me for consideration. On 3 June 2014 my Associate advised the parties that the extension of time issue would be considered through a telephone conference on 1 July 2014. The parties were provided with substantial background information relative to the application and the extension of time issue. Mr Piserchia was required to provide a witness statement and a copy of any document relied upon, by 24 June 2014.

[5] Kmart provided a detailed Employer’s Response (Form F3) to the application in which it objected to the application proceeding on the basis that it was lodged outside of the statutory time limit. It asserted that this time limit should not be extended.

[6] Mr Piserchia provided a substantial quantity of material to the Fair Work Commission (FWC) in support of his request for an extension of time.

[7] The conference date was changed to 4 July 2014. At the commencement of this conference it became clear that Kmart had not received the material provided by Mr Piserchia. The conference was rescheduled for 9 July 2014 accordingly.

[8] A sound file record of the conferences was kept. Mr Piserchia participated in this conference with his lawyer, Mr Sallis pursuant to a grant of permission made under s.596(2)(a) of the FW Act. Kmart was represented by Ms De Marchi, National Employee Relations Resources Adviser.

[9] My decision on the extension of time issue was made on the material before me. This included a series of e-mails and written submissions provided to me after this conference.

[10] That information discloses that Mr Piserchia was employed by Kmart from 1990. At the time of the termination of his employment he was a store manager based in Port Lincoln. Mr Piserchia was stood down on 25 February 2013 following allegations of misconduct on his part. Following investigations and further discussions in which he was involved, he was dismissed on 25 March 2014 with the payment of 4 weeks pay in lieu of notice.

[11] The material before me confirms that Mr Piserchia returned to his mother's house in Adelaide after he was suspended and visited his doctor on 17 March, where he was diagnosed with high blood pressure and was advised to change his lifestyle to address this. In the course of this visit he advised his doctor that he was concerned that he had been stood down from his work. Mr Piserchia advised that his doctor told him to stop thinking about anything to do with work. 2 Notwithstanding this advice, Mr Piserchia spoke with a WorkCover lawyer about whether he needed to take any steps in the event that his medical condition deteriorated such that he needed to make a claim in the future. Mr Piserchia returned to his doctor on 24 April 2014. He advised his doctor that he had been dismissed and was again assessed as having high blood pressure. He was placed on medication for this. Mr Piserchia returned to his doctor on 23 May 2014. His blood pressure had, at that time improved. Mr Piserchia advised that, by mid May 2014 he was feeling better. He contacted his lawyer on Monday 26 May and met with him on 28 May 2014. At this meeting he provided instructions for the preparation of this application. Mr Piserchia collected the application on 28 May 2014 and lodged it on 30 May 2014.

[12] Mr Piserchia provided a statement made out by his doctor. This is particularly relevant in the following terms:

“I have been asked for my hypothetical response had Vito either on 17 March or 24 April 2014 asked for my opinion as to whether he was in an appropriate medical condition to take legal proceedings against his employer for unfair dismissal.

I point out that I do not recall being asked this question by Vito on either occasion.

However had I been asked such a question, I state I would have recommended against any such course of action until such time as Vito’s blood pressure had been brought under control to a safe level.

I further say that given that I was telling Vito about how serious his blood pressure elevation was, and about having to reduce his levels of anxiety, it should have been clearly apparent to him that retracing what had happened in relation to his employment termination to start legal proceedings, as well as being involved in legal proceedings, was a path that I would have strongly recommended against.

I would have had no problem with him perusing such proceedings from a care of patient perspective after the 23 May 2014 when his medical condition had been appropriately managed and his hypertension was at a much safer level.” 3

[13] I also note that Mr Piserchia commenced an e-mail exchange with a Kmart Human Resources advisor, Ms Easter on 26 March 2014 in relation to his severance pay entitlements and relocation arrangements. This exchange continued until 9 April 2014 and included advice on 31 March 2014 that he would be in Port Lincoln on the following day and sought to make arrangements to collect his personal belongings. There followed e-mails relative to Mr Piserchia’s request that Kmart cover the cost of his relocation expenses back to Adelaide. Kmart put a proposal to Mr Piserchia in this respect but I cannot discern any response to this from Mr Piserchia.

[14] The information my Associate provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[15] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[16] In terms of s.394(2) the application was made outside of the specified 21 day time limit. It was lodged some 35 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Piserchia's circumstances can be regarded as exceptional for the purposes of this subsection. In this regard I have taken into account the additional written submissions and copies of the e-mail exchanges from 26 March 2014 to 9 April 2014 which have been provided to me subsequent to the conference on 9 July 2014.

[17] In considering the material before me I have had particular regard to the advice provided by Mr Piserchia's doctor. That advice goes to what his doctor would have recommended to him rather than what he was able to do. In this respect the doctor's advice does not permit a conclusion that medically confirms Mr Piserchia's assertions that he suffered "a complete meltdown". 4 There is a substantial difference between what Mr Piserchia's doctor would have recommended that Mr Piserchia do, or not do, and that which he was unable to do and I am unable to conclude that the medical advice before me is to the effect that Mr Piserchia was unable to pursue the application. I have considered the extent to which Mr Piserchia’s inaction reflected his doctor’s advice. I am not satisfied that Mr Piserchia’s doctors’ advice addressed this issue. Mr Piserchia’s behaviour in contacting a WorkCover lawyer after he was diagnosed with high blood pressure and then engaging in negotiations about termination payments after the termination of his employment also appear inconsistent with inaction on his part relative to consideration of this application.

[18] I have also considered Mr Piserchia’s advice that:

“By about mid May 2014 I was beginning to feel a little better about my levels of anxiety. I was keen to find out whether my blood pressure had been controlled and whether I could try to get on with my life.” 5

[19] I am not satisfied that, from this time onwards, Mr Piserchia acted to either seek further medical advice about his blood pressure or to pursue this application. Additionally, I have noted that Mr Piserchia saw his lawyer on 28 May 2014 but the application was not lodged until 30 May 2014.

[20] In Nulty v Blue Star Group Pty Ltd 6 a Full Bench 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.”

[21] The material before me does not provide medical reasons why Mr Piserchia was unable to lodge the application before 30 May 2014. It does not explain inconsistencies in the actions taken by Mr Piserchia within the 21 day time period. It does not fully explain the circumstances of the delay from mid May 2014 when Mr Piserchia was feeling better, to the lodgement of the application. Finally, it does not explain the time between when Mr Piserchia saw his lawyer and the lodgement of the application. Accordingly, I am not satisfied that Mr Piserchia’s explanation of why the application could not have been lodged within time is such that it represents an extraordinary circumstance. In this respect I have noted Mr Piserchia’s submission that his circumstances are analogous to those considered by Deegan C in Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group. 7 I do not agree that this is the case. In that matter specific medical certificates identifying that the applicant was unable to work because of depression and anxiety exacerbated by work stress were accepted by the Commissioner as an element of the factual matrix which she described as exceptional. In contrast, there is no medical evidence that confirms that Mr Piserchia was unable to lodge his application earlier and particularly from mid-May when he started feeling better.

[22] I am satisfied that Mr Piserchia was made aware of the termination of employment decision on 25 March 2014 which I have taken as the date that termination of employment took effect.

[23] There is nothing before me that establishes that Mr Piserchia took any action to dispute the termination of his employment other than the late lodgement of this application.

[24] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter. However, that conclusion cannot form a basis for an extension of time.

[25] In terms of the merits of the application, the material before me does not permit a conclusion about the merits of Mr Piserchia's application. As a consequence I have regarded the merits as a neutral consideration relative to the extension of time issue.

[26] Considerations of fairness relative to persons in similar circumstances to Mr Piserchia, do not support an extension of time.

Conclusion

[27] For the reasons I have set out above, I am not satisfied that Mr Piserchia's circumstances support an extension of time. I am not satisfied that the circumstances here should be regarded as exceptional for the purposes of the discretion in s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR553252) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

R Sallis counsel for the applicant.

C De Marchi for the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

July 4 and 9.

 1   Form F2, para 1.4. Attachment A, paras 19 and 20

 2   Witness Statement of Mr Piserchia, para 24

 3   Witness Statement of Dr Kee Sing Wong, paras 30 - 34

 4   Submissions-Attachment A to the application, para 19

 5   Witness Statement of Mr Piserchia, para 41

 6   [2011] FWAFB 975

 7   [2010] FWA 3863

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<Price code C, PR553251>