1
Fair Work Act 2009
s.394—Unfair dismissal
Gani Ardolli
v
Money Talk Pty Ltd T/A Money Talk Planners
(U2015/3151)
COMMISSIONER GREGORY MELBOURNE, 6 AUGUST 2015
Application for extension of time.
Introduction
[1] Mr Gani Ardolli was employed by Money Talk Pty Ltd T/A Money Talk Planners
(“Money Talk”) on 30 July 2012 as a Paraplanner/Financial Planner. However, on 22
December 2015 he was told he was being terminated due to unsatisfactory work performance,
with effect from the following day.
[2] Mr Ardolli then made application under the general protections provisions of the Fair
Work Act 2009.i The application was dealt with in conference on 10 February 2015 when Mr
Ardolli then realised he had lodged the wrong application, having intended to pursue an
application for unfair dismissal. He then withdrew the original application on 16 February and
lodged this application on the same day, 55 days after he was dismissed. He now seeks
additional time in which to make application.
[3] Mr Ardolli appeared on his own behalf. Mr Brendan Charles of Sparke Helmore
Lawyers was granted leave to appear on behalf of the Respondent under s.596(2)(b) of the
Act.
The Issue to be Decided
[4] Section 394(2) provides that an unfair dismissal application must be made within 21
days after the dismissal took effect or within such further period as the Commission allows
under subsection (3).
[5] Section 394(3) continues to provide that the Commission may allow a further period in
which to make application if it is satisfied there are “exceptional circumstances” taking into
account:
“(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
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AUSTRALIA FairWork Commission
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(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”ii
[6] Mr Ardolli’s unfair dismissal application was clearly lodged outside of the 21 day
period provided for in s.394. Therefore, are there “exceptional circumstances” existing,
having regard to the considerations in s.394(3), to warrant the Commission exercising its
discretion to grant Mr Ardolli additional time to make application?
Evidence and Submissions
[7] Mr Ardolli submits he was informed of his dismissal on 21 December 2014 after he
returned to work following two days of sick leave. He said he went to see the Practice
Principal of the business, Mr Tony Salvatore, to provide a medical certificate regarding his
leave, but was told, “‘I looked at the situation and made a decision to let you go’, or words to
that effect.”iii
[8] Mr Ardolli said he “attempted to understand what he was going on about”iv and told
Mr Salvatore he believed the dismissal letter he was provided with was “untrue and
inaccurate”v. He also submits he was not given an opportunity to discuss his dismissal, and a
second warning letter that Money Talk relies upon is “untrue,” as it was never provided to
him.vi He also submits his dismissal was unfair as he had previously requested to be given
“early notice” in the event he was going to be dismissed. He also believes he is “the casualty
of the employer hiring two new younger persons at much lower wage”.vii
[9] As indicated, Mr Ardolli initially lodged a General Protections application. It was
listed for conference on 10 February 2015. He submits it was at this time he became aware he
had lodged the wrong application. He states in his submission:
“I initially communicated with FWA on the 22nd December 2014, by e-mail and latter
(sic) I received instructions on how to seek the information, I was not able to locate the
appropriate forms and I called to ask for guidance/advice on how to get the right form,
the person that I spoke to asked what was the issue and then I explained what has
eventuated and she suggested that I read through the information and if it was a small
business the " general protection might be the way to go" I have since requested
withdrawal of that application and therefore lodged the correct application.”viii
[10] Mr Ardolli also states:
“I only become aware of the incorrect application on the day of the hearing. This
application was delayed by six more days this is because the commissioner gave me
time to seek legal advice. Accordingly, I have spoken to numerous legal firms but the
fees were to (sic) expensive for me and then made a decision to withdraw the general
protection Application and made this application.
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I made this application on the grounds that I believe that I am legally entitled to seek
justice through the legal process and not because the initial application was
unsatisfactory.”ix
[11] Money Talk submits in response “the applicant has failed to demonstrate any
exceptional circumstances upon which the FWC can be satisfied in order to exercise its
discretion to extend the time period within which the application can be lodged.”x It submits
Mr Ardolli’s reason for delay, being that he first lodged an incorrect application, is not an
“exceptional circumstance.”xi It submits, in summary:
“(a) there is no clear evidence about what the applicant said when he was seeking
assistance sufficient to make a finding that the suggestion made was wrong;
(b) on his own admission, the person the applicant spoke to suggested he look through
the information and, if what the applicant asserts is correct, only suggested the
application that might be the option for him. This in no way can be said to be
definitive advice. The suggestion made is qualified. The applicant still had to do the
work, and consider the information, before deciding on the course of action he wanted
to take;
(c) the FWC cannot be said to be acting in the capacity of the Applicant's
representative or advisor. The material provided by the FWC on its website sets out
unambiguous disclaimers to the effect that the FWC cannot provide legal advice, and
then provides some suggestions as to where advice could be obtained; and
(d) based on what the Applicant has said, he did not know the option to pursue.
However, ignorance of the correct option to pursue on its own does not create an
exceptional circumstance.”xii
[12] Money Talk relies on the decision in Mr Julian Nicholas Jr v Nortask Pty Ltdxiii
(“Nortask”) in support of its submissions. In that matter the Applicant filed an unfair
dismissal application, purportedly on the basis of advice received from the Fair Work
Ombudsman. The matter was initially dealt with in conference by a telephone conciliator.
Following that conference the Applicant withdrew the unfair dismissal application and made
application under s.365. However, by this time the application was lodged well outside of the
21 day period provided for in the Act. The Commission subsequently found there were no
“exceptional circumstances” to warrant an exercise of the discretion to extend time to make
application.
[13] Money Talk also relies on the decision of Commissioner Cargill in Mr David Mundell
v Avon Products Pty Ltdxiv. In that matter the Applicant lodged an unfair dismissal application
5 days after the applicable time period. The Applicant claimed he was not aware of the
existence of the Commission or the ability to pursue an unfair dismissal application. He also
claimed his former employer had not informed him about these options or entitlements.
Commissioner Cargill held, in response, that ignorance of one’s legal rights did not give rise
to an “exceptional circumstance,” and refused to exercise the discretion to allow further time
to make application.
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Consideration
[14] As indicated, in coming to a decision in this matter the Commission is required to take
account of each of the matters in s.394(3). The question of what constitutes “exceptional
circumstances” has also been considered in a number of decisions of this Tribunal. For
example, the Full Bench in Nulty v Blue Star Group Pty Ltdxv concluded:
“[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.”xvi
[15] I now turn to deal with the application having regard to the considerations in s.394(3)
the Commission must take account of, and the authorities that are relevant to determination of
the matter.
(a) the reason for the delay
[16] Mr Ardolli submits he initially made contact with the Commission by email on 22
December 2014, the day that he was told he had been dismissed. He received some
information in response and later spoke to a staff member at the Commission. He submits he
was told if his former employer was a small business then “general protections might be the
way to go.”xvii He then made application under s.365 and the matter was dealt with in
Conference before Commissioner Roe on 10 February. It was then that Mr Ardolli realised he
had lodged the wrong application. He stated:
“I was on the understanding that when I made inquiry that the application I was (sic)
lodged was the correct application. And on the day of the hearing I was advised
otherwise, saying that it was the wrong application. And because of that I asked to
cease the first application and be given the opportunity to apply for a second
application under the proper legislation.”xviii
[17] In response to a question from the Commission Mr Ardolli confirmed that until the
Conference he was under the impression he had lodged an unfair dismissal application.xix He
was also asked about how long it took him to make a further application. He indicated in
response:
“Well, it was about – yes, probably about six days because I was given seven days to
submit it to make a decision what to do; whether to rescind the application all together
or, you know, go ahead with what the first application was, or resubmit a second
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application. I was given seven days, and the opportunity to look for legal advice. I
spoke to about three legal firms. One of them didn’t want to deal with a matter of that
nature because I was on a small wage, and they wouldn’t deal with someone less than
$100,000 a year. Another firm was wanting $520 per hour in advice fees and, being
unemployed, I could not afford any of that, so I made the decision to just send in the
rescinding of the first case and then re-apply for that proper application.”xx
[18] Money Talk submits Mr Ardolli’s contention that he was unaware he had made the
wrong application, until the conference on 10 February, is not plausible. It submits he should
have been aware from the outset about the difference between a general protections and an
unfair dismissal application, and it also provided a response to his application on 15 January,
making clear the general protections application was “misconceived”.xxi
[19] In response to the reasons provided for the delay in lodging this application, Money
Talk also states:
“…the applicant has not identified any exceptional circumstances at all that should
move the Commission to exercise its discretion to extend the time within which the
application may be lodged. Simply put, Commissioner, making the wrong decision, as
the applicant has done, in commencing a General Protections application within the 21
day time limit after his employment came to an end, then changing his mind at a later
time, when it had been on occasions pointed out to him that he had commenced the
incorrect application, is not an exceptional circumstances.”xxii
[20] Money Talk also submits the “simple fact that the applicant made the wrong choice,
and then later decides to pursue a different course of action, does not create an exceptional
circumstance”.xxiii It refers to the decision in Mundell v Avon Products Pty Ltdxxiv in support
of this submission when Commissioner Cargill found:
“Ignorance of your legal rights and, by inference, the existence of any institution in
which you may be able to pursue those rights, does not give rise to an exceptional
circumstance.”xxv
(b) whether the person first became aware of the dismissal after it had taken effect
[21] This does not appear to be of any significance in this matter. It was made clear to Mr
Ardolli on his final day at work that he had been terminated.
(c) any action taken by the person to dispute the dismissal
[22] Mr Ardolli submits he told Money Talk the information in his termination letter was
“untrue and inaccurate”xxvi when the letter was given to him. He also submits he was not
given an opportunity to discuss the circumstances of his dismissal and was told to leave the
premises immediately “like I was some sort of criminal”xxvii.
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[23] Mr Ardolli then lodged the s.365 General Protections application on 7 January, within
the requisite 21 day time limit. As indicated, the matter was listed for conference on 10
February, and it was during this conference that Mr Ardolli became aware he had not, in fact,
lodged an unfair dismissal application. He then lodged this application six days later. He
submits this further delay occurred because it was suggested to him in the conference that he
take some time to make up his mind about how he wished to proceed before deciding whether
to withdraw the s.365 application.
[24] Money Talk submits Mr Ardolli sent a letter on 6 January 2015 “responding to the
reasons given for the termination of his employment.”xxviii He then lodged the General
Protections application on 7 January and the subsequent unfair dismissal application on 16
February. It refers to the following extract from the decision in Nortask:
“...the fact that Mr Nicolas contested his dismissal by making two applications in
relation to the same factual circumstances, is not a factor that weighs in Mr Nicolas'
favour.”xxix
(d) prejudice to the employer (including prejudice caused by the delay)
[25] Money Talk submits it has now incurred the cost of having to respond to two separate
applications lodged by Mr Ardolli. It was initially required to prepare for and attend the
conference to do with the General Protections application and has now had to respond to this
application. It accordingly submits this consideration is not a neutral matter, and it has already
suffered significant prejudice. It again refers to the decision in Nortask when Deputy
President Asbury stated:
“Nortask submits, and I accept, that it will suffer prejudice if an extension of time is
granted to Mr Nicolas to file his application for the Commission to deal with a General
Protections dispute. Nortask has expended time, effort and cost responding to an unfair
dismissal application and will have to expend further time, effort and cost to respond
to the general protections claim if the time in which to make it is extended. This is
above and beyond the prejudice that attaches to simply being required to defend an
application.”xxx
[26] There will always be some prejudice to an employer if the discretion is exercised to
grant additional time in which to make application, given the employer will then be required
to prepare its response to the application. I am satisfied this situation is exacerbated in the
present matter, given Money Talk has now had to respond to two separate applications.
(e) the merits of the application
[27] Both parties made submissions about the merits of the application. The witness
statement provided by Mr Tony Salvatore, on behalf of Money Talk, makes reference to a
number of issues he had with Mr Ardolli’s performance and the steps taken in response. Mr
Ardolli also made some acknowledgement about issues to do with his work performance.
However, in cross examination he also referred to a range of other matters. For example, he
suggested issues to do with his work performance could be attributed to the fact there were
inadequate computer and information systems in place. He also took issue with whether
discussions he had with Mr Salvatore actually constituted warnings. He also denied receiving
warning letters Money Talk says he was given. He also suggested he had been set up to fail,
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and his dismissal was motivated by an intention to employ younger people on lower wages in
his place.
[28] However, I am not satisfied I am able to form a concluded view about the respective
merits of the application, given the submissions and evidence now before the Commission. I
also note a Full Bench of the Commission has previously found, it is not necessary to embark
on a detailed consideration of the substantive case in an application of this kind.xxxi The Full
Bench also held that while the issue of merit is important, the exercise of the discretion to
grant additional time should have primary regard to the circumstances that led to the late
lodgement.
(f) fairness as between the person and other persons in a similar position
[29] Neither party made submissions suggesting this consideration was of any particular
importance in the present matter.
Conclusion
[30] Mr Ardolli’s application was lodged 34 days outside the 21 day time period. Previous
decisions of this Tribunal have emphasised that the requirement to comply with prescribed
time limits is not a mere technical problem, but involves a failure to comply with substantive
legislative provisions. The Act also makes clear that it is only in “exceptional circumstances”
that the Commission should exercise the discretion available to it to extend the time for
making application. Do these circumstances exist in this matter?
[31] Mr Ardolli contacted the Commission by email on the day he was dismissed to obtain
information about his possible options. The evidence indicates he was provided with some
information, in response, but was not directed to proceed in any specific way. He then
proceeded, apparently by mistake, to lodge a general protections application, when his
intention was to pursue an unfair dismissal claim. He apparently remained unaware of this
mistake until the conference on 10 February, despite the Employer Response document filed
by Money Talk on 15 January indicating his application was “misconceived.”
[32] Six days after being made aware of the nature of his application Mr Ardolli proceeded
to discontinue that matter and lodge the present application. In summary, it appears he
explored the options that might be available to him following his dismissal, but apparently
through a combination of ignorance and inadvertence lodged the wrong application and now
seeks an exercise of the Commission’s discretion to extend time in order to correct that
mistake.
[33] I am not satisfied that the circumstances involved in this matter can be considered to
be “exceptional.” Ignorance of the law and the Commission’s procedures are circumstances
that are often encountered. As DP Asbury found in Nortask, “Ignorance of an option is not, of
itself, an exceptional circumstance.”xxxii I am also not persuaded that the evidence indicates
Mr Ardolli was provided with incorrect or inappropriate advice at any stage. He appears
instead to have been advised appropriately about his options, both following his initial contact
with the Commission in December 2014, and in the conference in February. Unfortunately, he
made an error, initially, in deciding which option to pursue.
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[34] I have considered all the evidence and submissions provided by the parties in this
matter. I have also had regard to each of the considerations in s.394(3) I am required to take
account of, and the authorities I consider relevant to the determination of this matter. I am not
satisfied that “exceptional circumstances” exist to warrant the Commission exercising its
discretion to grant additional time in which to make application. The application is therefore
dismissed.
COMMISSIONER
Appearances:
Mr Ardolli appeared on his own behalf.
Mr Brendan Charles of Sparke Helmore Lawyers appeared on behalf of the Respondent.
Hearing details:
2015.
Melbourne:
29 May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR569119
i Matter C2015/1105
ii Fair Work Act 2009 (Cth) at s.394(3)
iii Applicant’s Outline of Argument: Objections at para 1b
iv Applicant’s Outline of Argument: Objections at para 1e
v Ibid
vi Ibid at 1h
vii Ibid
viii Ibid at 8a
ix “Responses to the Objection” submitted by the Applicant at para 1.2
x Respondent’s Submissions dated 10 April 2015 at para 15
xi Ibid at para 17
xii Ibid at para 19
xiii [2014] FWC 5324
xiv [2013] FWC 1368
xv [2011] FWAFB 975
xvi Ibid at [13]
THE FAIR WORK COMMISSION SEAL THE
[2015] FWC 4557
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xvii Applicant’s Outline of Argument: Objections at para 8a
xviii Transcript at PN80
xix Ibid at PN82
xx Ibid at PN84
xxi Respondent’s Submissions dated 10 April 2015 at para 24
xxii Transcript at PN181
xxiii Respondent’s Submissions dated 10 April 2015 at para 22
xxiv Above n.xiv
xxv Ibid at [21]
xxviApplicant’s Outline of Argument: Objections at para 1e
xxvii Ibid at 1h
xxviii Respondent’s Submissions dated 10 April 2015 at para 27
xxix [2014] FWC 5324 at [68] as quoted in Respondent’s Submissions dated 10 April 2015 at para 28
xxx Ibid at [69]
xxxi Kyvelos v Champion Socks Pty Limited (Print T2421)
xxxii Above n.xiii at [47]
