1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ruben Galea
v
Billabong Custom Caravans Pty Ltd
(U2016/10194)
DEPUTY PRESIDENT GOSTENCNIK SYDNEY, 5 DECEMBER 2016
Application for an unfair dismissal remedy; application made outside of the time prescribed;
whether there are exceptional circumstances; whether discretion to allow a further period
within which application may be made should be exercised; further period allowed.
[1] Mr Ruben Galea (Applicant) commenced employment with Billabong Custom
Caravans Pty Ltd (Respondent), on or about 11 July 2010. He was employed in the position of
a Caravan Finisher. The Applicant has applied for an unfair dismissal remedy under s.394 of
the Fair Work Act 2009 (Act). That application was lodged on 11 August 2016.
[2] This application was listed for arbitration hearing but on reviewing the materials filed,
it was apparent that the application was lodged outside of the time prescribed and the question
whether a further period should be allowed had not been determined prior to the matter being
allocated to me. It is necessary therefore to determine whether a further period within which
this application may be made should be allowed.
[3] The date of the termination of the Applicant’s employment by the Respondent is in
dispute. The Applicant submits that the termination of his employment took effect on 6 July
2016 while he was on annual leave in Malta. The Applicant says that he was on annual leave
from 25 May 2016 and that he contacted Mr Fortunato Salce, Director of the Respondent, by
telephone after receiving text messages from co-workers suggesting that the Applicant may be
about to have his employment terminated.1 During that telephone conversation, the Applicant
says that Mr Salce informed him that he did not have a position into which he could return
and, on the Applicant’s evidence, this is when he first became aware that his employment had
been terminated.
[4] The Respondent submits that he informed the Applicant, during a brief meeting held
on or about 7 May 2016 which was initiated by the Applicant, prior to the Applicant’s
commencing annual leave, that the Applicant would need to re-apply for his position when he
returned from his overseas trip and that this was when the Applicant was informed of the
termination of his employment.2 According to the Respondent, the date on which the
1 Transcript PN118; Transcript PN141 – PN150; Exhibit 1, Annexure B.
2 Transcript PN255 – PN257.
[2016] FWC 8611
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 8611
2
Applicant’s dismissal took effect was 25 May 2016. Mr Salce says that the international
telephone call on 6 July 2016 was initiated by the Applicant to confirm the discussion held on
7 May 2016. The Applicant says that the discussion on 7 May 2016 initiated by the Applicant,
was initiated in order to request a pay rise and that there was no indication at this meeting by
Mr Salce that the Applicant’s employment had been terminated or that he would be required
to re-apply for his position on his return from leave.3
[5] It is not in dispute that no letter of termination, or any other written communication
about the termination, was sent to the Applicant by the Respondent.4
[6] I accept and prefer the evidence given by the Applicant about the date of the
termination of employment. The Applicant’s version of events is inherently more likely. This
is because:
First, the meeting at which the Respondent says it told the Applicant of his dismissal
was initiated by the Applicant and it would seem odd that such a meeting would be
the vehicle through which notice of employment ending would be given;
Secondly, there is nothing from the Respondent by way of written confirmation of
the notice of termination of employment having been given on 7 May 2016, or of the
employment ending on 25 May 2016;
Thirdly, the explanation for the absence of written confirmation (administrative
oversight) given by the Respondent is weak, particularly absent any evidence from
the “girls in the office” that an instruction to send a letter of termination to the
Applicant was given, but not carried out;5 and
Fourthly, the explanation given by the Applicant for the circumstances in which he
made the telephone call to Mr Salce on 6 July 2016 is supported by the extract of
text messages in mid-June 2016 between the Applicant and a work colleague about
the possible termination of his employment.6
[7] I am therefore satisfied that the date on which the termination of employment took
effect was 6 July 2016.
[8] The reasons given by the Respondent for its decision to terminate the Applicant’s
employment were:
That the Applicant was required to train other staff to cover his role whilst on leave
and that the Applicant’s refusal to do so resulted in production slowing down; and
That the Applicant convinced other employees to slow the production down and was
taking unauthorised breaks;7 and
3 Transcript PN90 – PN115.
4 Transcript PN151 – PN154; Transcript PN217 – PN223; Exhibit 1 at [51].
5 Transcript PN218 – PN223.
6 Exhibit 1, Annexure B.
7 Form F3 – Employer Response to Unfair Dismissal Application.
[2016] FWC 8611
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That over the last few months prior to his dismissal, the Applicant “just grated me”
and “he was going back to that sort of position again and I decided to terminate”.8
[9] As earlier indicated, the Applicant lodged his application for an unfair dismissal
remedy on 11 August 2016.
[10] Applications for an unfair dismissal remedy must be made within 21 days after the
dismissal took effect. Based on my finding that the date the Applicant’s dismissal took effect
was 6 July 2016, the application for a remedy should have been lodged by no later than 27
July 2016.
[11] The application was therefore lodged outside of the time prescribed. The application
was made in effect, 15 days after the last date on which it could have been made. The Act
allows the Commission to consider extending the period within which an application for an
unfair dismissal remedy may be made if it is satisfied that there are exceptional
circumstances.
[12] Before dealing with the matters which I need to take into account, let me just say a few
things about the principles that are to be applied in considering whether I should exercise my
discretion to extend time. As is evident from the text of s.394 of the Act, the statute permits
me to allow a further period, but the discretion will only be exercised if I am first satisfied that
there are exceptional circumstances which warrant the consideration of the exercise of my
discretion.
[13] The matters that I need to take into account in considering whether or not I am
satisfied that there are exceptional circumstances are:
the reason for the delay,
whether the Applicant first became aware of the dismissal after the date it took
effect;
any action taken by the Applicant to dispute the dismissal;
prejudice to the Respondent including prejudice caused by the delay;
the merits of the application; and
fairness as between the Applicant and other persons in a similar position.
[14] It is clear from the structure of s.394(3) that each of the matters needs to be taken into
account in assessing whether there are exceptional circumstances. The individual matters
might not, viewed in isolation, be particularly significant, so it is necessary to consider the
matters collectively and to ask whether collectively the matters show exceptional
circumstances.
8 Transcript PN274.
[2016] FWC 8611
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[15] Briefly, exceptional circumstances are circumstances that are out of the ordinary
course, unusual, special or uncommon but the circumstances themselves do not need to be
unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into
account s.394(3) that there are exceptional circumstances.
[16] I will turn then to the particular matters to which regard must be had.
Reason for the delay
[17] Firstly, as to the reason for the delay. When considering the reason for the delay, the
explanation given by the Applicant needs to be a credible or acceptable explanation. The
reason or reasons need to provide an acceptable explanation for the whole of the period of the
delay. Necessarily, the period of the delay with which the explanation is concerned is in the
period commencing immediately after the time for lodging an application had expired and
ending on the day on which the application was ultimately lodged. However, the
circumstances from the date the dismissal took effect must be considered in assessing whether
the explanation proffered for the delay is an acceptable or credible explanation.9
[18] The main reason provided by the Applicant for the delay in lodging his unfair
dismissal application was that he was overseas, in Malta, when he first became aware that his
employment was terminated. Upon becoming aware of his dismissal, the Applicant submits
that he decided to extend his overseas trip for approximately two weeks. The Applicant was
initially scheduled to return to Australia on 16 July 2016,10 but given his dismissal he decided
to extend his trip so that his parents could spend more time with his child, and also so that he
could spend time with his cousin who was visiting Malta from London and who was due to
arrive in Malta on or about 18 July 2016.11
[19] The Applicant further submits that he attempted to contact either the Commission or
the Fair Work Ombudsman (or something he found on Google) via telephone from Malta in
order to make enquiries about his rights.12 He says that he was on hold for approximately ten
minutes and that this was too expensive.13 The Applicant returned to Australia on 3 August
2016 and made contact with his legal representation within a couple of days of his return.14
[20] Had the Applicant returned to Australia on 16 July 2016 as originally planned and
taken steps to lodge his application immediately or soon after his return, it would have been
possible to have lodged his application within the time prescribed.15
[21] It seems to me that the Applicant exercised a choice. He chose to spend more time
overseas instead of pursuing his legal rights. The delay in lodging the application was
occasioned by that choice. It is doubtless the case that he acted promptly on his return but the
delay between the time for lodgement expiring and making inquiries about his right which
ultimately led to the lodgement of the application is attributable solely to the choice made to
9 See Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac
Industries Pty Ltd [2014] FWCFB 2149 at [31] – [33]; See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine
[2016] FWCFB 6963.
10 Transcript PN158.
11 Transcript PN161 – PN166; Transcript PN181 – PN192.
12 Transcript PN193 – PN197.
13 Transcript PN196.
14 Transcript PN167 – PN173.
15 Transcript PN345 – PN360.
[2016] FWC 8611
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remain overseas for an extended period. Whilst I understand the choice made by the
Applicant, it does not provide an acceptable explanation for the delay and that is a matter that
weighs against the Applicant.
Whether Applicant first became aware of the dismissal after the date it took effect
[22] Turning then to the question of whether the Applicant first became aware of the
dismissal after it took effect. The evidence is that the Applicant was advised on 6 July 2016,
whilst overseas on annual leave, that his employment would end, effective immediately.16
[23] The Applicant was employed by the Respondent from 11 July 2010. He had been
employed by the Respondent for almost six years and, pursuant to the National Employment
Standards (NES) was entitled to a four week notice period upon termination.17 However, the
Respondent gave neither notice nor payment in lieu of notice.18 The Applicant’s termination
was effective immediately on 6 July 2016. Although the Applicant had the benefit of the full
21 day period to lodge the application, part of that period (and after extending his period
overseas), all of the period elapsed while the Applicant was overseas. Had the Applicant been
given the notice to which he was entitled, the effective date of dismissal would have been 3
August 2016 and the application lodged on 11 August 2016 would have been made within
time.
[24] In the circumstances, I consider this factor to be neutral.
Action taken by the Applicant to dispute his dismissal
[25] Turning next to the question of the action taken by the Applicant to dispute his
dismissal. The evidence was that the Applicant made a telephone call to either the
Commission or the Fair Work Ombudsman (or something on Google) whilst he was overseas
in order to make enquiries about his rights.19 The Applicant submits that he was on hold for
approximately ten minutes, however, and says that it is too expensive to make international
telephone calls.20 Upon learning of his termination, the Applicant submits that he decided to
extend his overseas holiday in Malta for approximately two weeks. The Applicant was
originally due to return to Australia on 16 July 2016, but extended the holiday to return on 3
August 2016.21 Within a couple of days of his return to Australia, the Applicant took steps to
seek legal representation and was referred to RRR Lawyers who have represented him in this
application since lodging the application on 11 August 2016.22
[26] While the Applicant was overseas, he did no more than try to make an inquiry. This is
not the same as taking action to dispute his dismissal. He took no step. The Applicant did not
appear to dispute his dismissal with Mr Salce during the telephone conversation. For example,
the Applicant could have said – this is not fair and I am going to take action, but did not and
instead he extended his holiday.
16 Exhibit 1 at [40]; Transcript PN154; Applicant’s Outline of Submission at [26].
17 Fair Work Act 2009 (Cth), s.117.
18 Applicant’s Outline of Submissions at [25].
19 Transcript PN196 – PN197.
20 Transcript PN196.
21 Transcript PN161 – PN166; Transcript PN181 – PN192.
22 Transcript PN166 – PN180.
[2016] FWC 8611
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[27] In the circumstances, this is a matter that weighs against the Applicant.
Prejudice
[28] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a
factor which weighs in favour of an Applicant who seeks a further period within which to
lodge an application for a remedy.
[29] The Respondent did not, however, make any submissions in relation to the question of
prejudice.23 It is not suggested that the Respondent is or will be prejudiced. Indeed the
Respondent has prepared its case in full. The Respondent’s merits case is ready for hearing.
[30] In the circumstances, that is a matter that weighs in favour of the Applicant.
Merits of the application
[31] As to the merits of the application, a hearing to consider whether time should be
extended is essentially an interlocutory hearing, which does not generally permit a substantive
testing of the merits of the particular application and so, in most cases the best that can be
done is to take the Applicant's case at its highest and assess the merits from that
perspective. That is, to look at the Applicant's case in the most favourable light and make an
assessment about the merits.
[32] In this case, the Respondent gave evidence that the Applicant has always been a
reliable, hard worker who rarely took sick leave,24 however, it appears that the Applicant’s
employment was terminated summarily whilst he was overseas on annual leave. The
Applicant had been employed by the Respondent for approximately six years and did not
receive written notice of his termination and the reasons given appear vague. No warning that
dismissal might occur had been given to the Applicant by the Respondent, and dismissal by
telephone whilst on annual leave has a tenor of unfairness about it. Even on the Respondent’s
evidence, the termination of the Applicant’s employment occurred in the following
circumstance:
“THE DEPUTY PRESIDENT: I understand that?---Is that the meeting in the office, sir?
Yes. You had a discussion on 7 May?---I wasn't sure of the date. The meeting - - -
You agree you had a discussion with him on or about 7 May?---Yes. Yes. A very short
discussion.
Is it at that discussion that you say his employment was ended?---That's where I said his
position was no longer and that if he wanted a job when he came back from holidays he had to
reapply.
Just bear with me?---Sorry.
How did the meeting on 7 May come about? Who organized it?---Ruben just came into my
office and we were starting to talk about pay rises and I refused them and I told him as far as I
23 Transcript PN286 – PN389.
24 Transcript PN274.
[2016] FWC 8611
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was concerned he didn't have a position and that if he wanted to come back to work he would
have to reapply for it.
If Mr Galea had not walked into your office on 7 May, when would you have dismissed
him?---Probably just before he left to go on holidays.
Why would that be?---Well, first of all he didn't apply to go on holidays. He didn't make any
attempt to come and see me to talk to me about going on holidays to replace him for a seven
week period. He refused - - -
But you knew on 7 May he was going on holidays?---Yes, I did.
How did you find that out?---I found out from another co-worker, Spiro, who was going on the
same plane as Ruben. Spiro came and saw me to talk about him being away for four to five
weeks and I should replace or get somebody to do his job while he is gone and that is when I
found out – then spoke to both foreman, Roger and Roy and said we've got to get someone to
replace Ruben and I said to Roger, "Have that person trained by Ruben", because he does
steps, doors, awnings, which I didn't have anyone else to do. Ruben was refusing to train
people to the point where Roger had to train them himself and Roger did say to me – I think
it's in his witness statement – that Ruben was working on a caravan by himself while he was
training two other people to do his job.
He came in on 7 May to have a discussion with you about a pay rise?---Mm-hm.
You knew at that stage he was going on – taking some leave and you had decided, what,
before the meeting that you were going to dismiss him?---Well, yes, I did decide before that I
was going to terminate him.
Okay. So you took that opportunity to tell him?---Yes, it presented itself. Yes.
I'm not being critical, I'm just - - - ?---I didn't want to do it in a person sort of - - -
- - - asking questions?---Yes.
Was that the end of it? Is that all you told him?---Yes, it was very short.”25
[33] None of the reasons suggested by Mr Salce as reasons for dismissal appear, at this
stage, to be particularly compelling or sound, well-founded or defensible.
[34] It seems to me therefore that the Applicant has a very arguable case which based on
the material has good prospects.
[35] In the circumstances, that is a matter that weighs strongly in favour of the Applicant.
Fairness as between the Applicant and other persons in a similar position
[36] As to fairness between the Applicant and other persons in a similar position, cases of
this kind will generally turn on their own facts; however this consideration is concerned with
the importance of the application of consistent principles in cases of this kind, thus ensuring
fairness as between the Applicant and other persons in a similar or like position. This
25 Transcript PN252 – PN267.
[2016] FWC 8611
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consideration may relate to matters currently before the Commission or to matters previously
decided by the Commission.
[37] Neither party made any material submissions on this issue, nor did any party bring to
my attention any relevant decision of the Commission which is in terms similar to the facts in
this case. Consequently, this matter is a neutral consideration in the present circumstances.
Conclusion
[38] The statutory time limit that is applicable to the exercise of a person's right, to bring an
unfair dismissal remedy application is an expression of the parliament's intention that rights
should be exercised promptly. That is because it is important that there is some certainty,
particularly in relation to an employer who has taken a particular step, that they know that
after the expiration of 21 days, in the case of a termination, that that will be the end of the
matter. Time limits seek to balance the right to bring an action by an aggrieved former
employee and the desirability of prompt action and prompt resolution of disputes.
[39] It is for that reason, the parliament has chosen to establish a time period and that time
period is 21 days. However, the parliament also recognises that there will be some cases
where a late application should be accepted and it has set out the test of exceptional
circumstances and the matters that need to be taken into account.
[40] A person who seeks relief from an unfair dismissal must make the application within
21 days after it takes effect and it is only in exceptional circumstances that the Commission
will consider whether to allow a further period. Weighing all of the matters that I must weigh
and taking into account the matters set out in section 394(3) of the Act, I am satisfied that
there are exceptional circumstances in this case, warranting a consideration of the exercise of
my discretion to allow a further period. I have arrived at this view because of my assessment
of the merits of the application, albeit on a preliminary basis. That assessment results in the
merits consideration outweighing the other matters which in this case weighed against the
Applicant.
[41] As I have indicated, the Applicant has not provided an acceptable explanation for the
whole period of delay. He was notified of his dismissal on the day it took effect, and he took
no step to dispute the dismissal apart from making this application. However, there is an
absence of prejudice to the Respondent, indeed its case is ready to run and the merits of the
Applicant’s case are good.
[42] Apart from addressing the matters specified in s.394(3), neither party pointed to any
particular discretionary consideration that might be relevant in deciding whether to allow a
further period. I am not aware of any consideration which would weigh against the exercise of
my discretion. Having concluded that there are exceptional circumstances, I consider that the
interests of justice are best served by allowing a case which appears to have good merits
prospects to proceed to full hearing and so I propose to allow a further period within which
the application may be lodged.
[43] I order that the application may be lodged by 11 August 2016.
[2016] FWC 8611
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[44] This matter will be listed for arbitration hearing before me on 19 December 2016
commencing at 10.00am.
DEPUTY PRESIDENT
Appearances:
Mr N. Shiels on behalf of the Applicant.
Mr F. Salce for the Respondent.
Hearing details:
2016.
Melbourne.
November 30.
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Price code C, PR588082
THE FAIR WORK COMMISSION SEAL OF
