1
Fair Work Act 2009
s.394—Unfair dismissal
Piero Lalli
v
Duo Trading Pty Ltd
(U2021/488)
COMMISSIONER WILSON MELBOURNE, 15 FEBRUARY 2021
Application for an unfair dismissal remedy – extension of time; whether “exceptional
circumstances” – no exceptional circumstances - application dismissed
[1] This decision concerns an application made by Piero Lalli alleging unfair dismissal
against Duo Trading Pty Ltd (Duo or the Respondent). Mr Lalli left the Respondent premises
on Wednesday, 16 December 2020 and received a termination letter dated Friday, 18
December 2020. Mr Lalli’s application for unfair dismissal remedy was lodged in the Fair
Work Commission on Tuesday, 19 January 2021.
[2] For the reasons that follow I find that the date Mr Lalli’s dismissal took effect was
Wednesday, 16 December 2020.
[3] Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal
application to be made within 21 days after the dismissal took effect or within such further
period as the Commission allows under s.394(3). From the dates referred to above Mr Lalli’s
application was made outside of the statutory time limit, with it having been made after the
expiry of the 21 day time period allowed for by the FW Act, which ended on Wednesday, 6
January 2021.
[4] Consistent with the Commission’s usual practice on these matters, with the application
having been made out of time, the matter was referred to me for hearing and determination of
whether an additional period of time should be allowed for the making of Mr Lalli’s
application. It is to be noted that Duo object to the proposition that the Commission should
allow an extension of time for the filing of an unfair dismissal application.
[5] Evidence was received from Mr Lalli on his own behalf and from Mr Peter Fergusson,
the Respondent’s Managing Director. A short Witness Statement was filed by Mr Ben
Fergusson, the Respondent’s General Manager however he did not give oral evidence in the
hearing before me, owing to his unavailability due to illness on the date of the hearing. While
I have received the statement as an exhibit, I have placed little weight on its contents,
preferring instead the oral evidence of Mr Peter Fergusson.
[2021] FWC 659
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 659
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[6] In considering an application for an extension of time for the making of an unfair
dismissal application, the FW Act requires that I must be satisfied that there are exceptional
circumstances to warrant the extension taking into account the criteria which are specified
within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension
of time involves both a broad discretion1 and a high hurdle of exceptional circumstances, and
the longer the delay in making the application the more difficult it will generally be to get
over that hurdle.2
[7] I am satisfied on the material before me that, for the reasons set out below, there are
not exceptional circumstances in Mr Lalli’s case and an extension of time should not be
granted for the making of his unfair dismissal application.
BACKGROUND
[8] Mr Lalli commenced employment with Duo on 15 August 2017. Mr Lalli’s position
was as a warehouse/distribution person and he holds a light rigid truck license.
[9] There is dispute between the parties as to the events on Wednesday, 16 December
2020 triggering the dismissal. There is also inconsistency between the parties in their written
materials as to the date Mr Lalli was notified of his dismissal and the date Mr Lalli’s
dismissal took effect.
Events on Wednesday, 16 December 2020 triggering the dismissal
[10] Mr Lalli submits that he was notified to leave the Respondent premises on
Wednesday, 16 December 2020 after he refused to perform a task assigned by the Respondent
as he viewed the task as being outside of his job description.3 He provided by way of
background that he returned to work on Wednesday, 16 December 2020 after being on a
period of sick leave in the previous week. His account of the event is that he felt
overwhelmed with the stockpile that he was assigned and that he felt pressure to resume his
role. He provides that he raised his concerns with Senior Management when he was
requested to “leave my daily duties and workstation and clean rubbish up on a vacant block.”4
[11] The Respondent views the events on Wednesday, 16 December 2020 differently.
They assert that as Mr Lalli was the only employee at Duo who held a light rigid truck license
that:
“An integral part of the applicant’s position was driving the company truck and
something that occurred daily. This duty was refused by the applicant without sighting
any grounds as to why he couldn’t carry out his duty which we do not deem to be an
unusual request to an employee in a warehouse / distribution position.”5
[12] The Respondent asserts that Mr Lalli was asked whether he was ready to drive the
company truck around to their old warehouse to assist with the clean-up of the site. Mr Ben
1 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [9].
2 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288, [21].
3 Form F2, Unfair Dismissal Application, 19 January 2021, item 3.1.
4 Exhibit A1, Applicant Outline of Submissions on Jurisdictional Objection, 1 February 2021, item 7.
5 Form F3, Employer Response to Unfair Dismissal Application, 20 January 2021, item 3.2.
[2021] FWC 659
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Fergusson, the Respondent’s General Manager provided in his Witness Statement that Mr
Lalli responded to the request that the task was outside of his job description and Mr
Fergusson provided Mr Lalli the opportunity to leave if he maintained that attitude. Mr Lalli
then left the premises and as he did so “proceeded to provide other employees with a verbal
opinion of what he thought of them on his exit from his position as inappropriate and rude
what the comments were and certainly no way someone should conduct themselves.” 6 Mr
Peter Fergusson, the Respondent’s Managing Director in his evidence also recalled that Mr
Lalli left the premises making unpleasant remarks and gestures. Duo maintains that Mr
Lalli’s termination of employment was at his initiative, with him having abandoned his
employment when he let Duo’s premises.
[13] Mr Lalli submits that he provided a medical certificate to the Respondent, the
certificate covered the period Wednesday, 16 December to Thursday, 24 December 2020
inclusive.7 A copy of the medical certificate is before the Commission. In his oral evidence,
Mr Lalli recounted that he formed the view on Wednesday, 16 December 2020 that he had
been dismissed as he saw a Facebook post from the company advertising his position
approximately one hour after he left the Respondent premises. His oral evidence confirmed
that the medical certificate was obtained after he formed the view that he had been dismissed.
The certificate was provided to the Respondent by way of email on Thursday, 17 December
2020.8 It is accepted by me that the medical certificate was obtained after the dismissal event.
Notification of dismissal and the date the dismissal took effect
[14] Mr Lalli in his initiating application provides the date he was notified of his dismissal
and the date his dismissal took effect was Wednesday, 16 December 2020. In his submissions
on the jurisdictional matter, he provides both dates as Friday, 18 December 2020.
[15] Duo in its Form F3 – Employers Response to Unfair Dismissal Application provides
the date Mr Lalli was notified of his dismissal as Friday, 18 December 2020 and the date Mr
Lalli’s dismissal took effect was Wednesday, 16 December 2020. In its submissions on the
jurisdictional matter, Duo provides both dates as Friday, 18 December 2020.
[16] On the material before the Commission, I find that the date Mr Lalli’s dismissal took
effect was Wednesday, 16 December 2020. As a consequence, for his unfair dismissal
application to be within time, it would have had to be filed no later than Wednesday, 6
January 2021, when in fact it was lodged on Tuesday, 19 January 2021, 13 days out of time.
LEGISLATION
[17] Relevant to the Commission’s consideration of this question are the provisions in
s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
6 Witness Statement of Ben Fergusson, 9 February 2021.
7 Exhibit A1, Applicant Outline of Submissions on Jurisdictional Objection, 1 February 2021, item 3.
8 Exhibit A3, Applicant Document, Letter to Ben Fergusson, 18 December 2020.
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(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.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
[18] A decision to allow a further period for making an application requires the
Commission to be satisfied that there are “exceptional circumstances”, taking into account the
six nominated criteria.
[19] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional
consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional
circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in
Nulty v Blue Star Group Pty Ltd as follows:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional
circumstance.” 9
[20] The assessment of whether exceptional circumstances exist requires a consideration of
all the relevant circumstances. No one factor (such as the reason for the delay) need be found
9 Nulty v Blue Star Group, 2011, 203 IR 1, [13].
[2021] FWC 659
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to be exceptional in order to extend the time limit. It may be the case that even though no one
factor may be exceptional, in combination with other factors the circumstances may be such
as to be regarded as exceptional.10
[21] In considering whether an extension of time should be granted to Mr Lalli, I am
required to consider all of the criteria in s.394(3), which I now do.
1. The reason for the delay
[22] The prima facie position is that the time limit prescribed by the FW Act should be
complied with unless there is an acceptable explanation for the delay which makes it equitable
to so extend.11 The delay required to be considered is the period beyond the prescribed 21
day period for lodging an application; it does not include the period from the date of the
dismissal to the end of the 21 day period.12 An applicant does not “need to provide a credible
explanation for the entire period”; there is no pre-condition to the grant of an extension of
time to the effect that there must be a credible explanation for the entire period of the delay; it
could be that an extension of time may be granted where the application has not provided any
explanation for any part of the delay.13 While the “reason for the delay” is a factor that must
be taken into account, such does not allow the elevation of a particular matter into a condition
precedent to a finding of exceptional circumstances.14
[23] The delay to be considered in matters such as these is the delay in making the
application after the expiry of the statutory time limit. In Mr Lalli’s case the relevant period
to be considered is that after the last day for a lodgement to be within time, Wednesday, 6
January 2021.
[24] In his oral evidence, Mr Lalli recalled that the reasons for the delay in filing the
application was that:
for the period Wednesday, 16 December to Thursday, 24 December 2020 he
was covered by a medical certificate;
for a period of 15 days commencing on Thursday, 24 December 2020 he was
on a family holiday.
[25] He reported that he did not take steps to research his rights until Saturday, 9 January
2021 being 24 days after his dismissal took effect. He then filed a claim with Employee
Dismissal Claims Australia on Monday, 11 January 2021 and received a reply from them on
Tuesday, 19 January 2021 at which time he filed the application in the Commission. His
evidence as to why he contacted Employee Dismissal Claims Australia was that he did not
have to pay money.
[26] Mr Lalli attributes part of the delay in making his application to making a claim with
Employee Dismissal Claims Australia on Monday, 11 January 2021 and not being notified
10 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38].
11 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
12 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287; Stogiannidis v Victorian
Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [22].
13 Ibid, [40].
14 Ibid, [41].
[2021] FWC 659
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until Tuesday, 19 January 2021 that the organisation was not taking any additional claims.15
He also submits that:
“I submitted by unfair dismissal claim to the incorrect authority. As it was over the
Christmas/New year holiday period, I considered their response to be delayed as a
result. It was only later I realised my error and quickly rectified.”16
[27] As Mr Lalli’s dismissal took effect on Wednesday, 16 December 2020, his evidence of
contacting Employee Dismissal Claims Australia or of submitting an unfair dismissal claim to
the incorrect authority on Monday, 11 January 2021 does not support an extension of time
being granted since that date itself is outside of the 21 day time limit prescribed by the FW
Act. Further, his evidence that he did not start researching his rights until Saturday, 9 January
2021 due to being on a family holiday does not support an extension of time as that does not
ground a reasonable basis for being unable to take steps to dispute his dismissal.
[28] Mr Lalli also submits that as he was covered by a medical certificate for the period of
Wednesday, 16 December to Thursday 24 December 2020 and that his dismissal could not
take effect until the expiry of that period.17 This submission alone also does not support
granting an extension of time, as there is no evidence that Mr Lalli was so incapacitated by
illness as to be unable to attend to his affairs, including making an unfair dismissal
application.
[29] It follows that Mr Lalli has not provided the Commission with an acceptable
explanation for the delay in making his unfair dismissal application.
[30] Accordingly, my assessment is that consideration of this criterion does not resolve in
favour of Mr Lalli for the granting of an extension of time for the making of his application.
2. Whether the person first became aware of the dismissal after it had taken effect
[31] Mr Lalli gave oral evidence that he first formed the view that he was no longer
employed by Duo after viewing a Facebook post advertising his position on Wednesday, 16
December 2020, a few hours after he left Duo’s premises. He received written confirmation
that Duo no longer required his services in a letter dated Friday, 18 December 2020. This is
therefore not a circumstance where the Applicant only became aware of Duo’s decision an
extended time after the time that it occurred. Accordingly, this is a neutral factor in my
consideration.
3. Any action taken by the person to dispute the dismissal
[32] Action taken by an employee to contest the dismissal, other than lodging an
application, can be treated as favouring the grant of an extension of time.18
[33] The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement
in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the
15 Form F2, Unfair Dismissal Application, 19 January 2021, item 1.5.
16 Exhibit A1, Applicant Outline of Submissions on Jurisdictional Objection, 1 February 2021, item 6.
17 Ibid, item 4.
18 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[2021] FWC 659
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termination, other than applying under the Act will be relevant. It will show that the decision
to terminate is actively contested. It may favour the granting of an extension of time”19
(underlining added).
[34] Mr Lalli responded to the company’s Friday, 18 December 2020 letter on the same
day disagreeing with its contents and seeking clarification on his position with the company.
The Respondent in a letter dated Tuesday, 22 December 2020 confirmed the Respondent
viewed Mr Lalli as having abandoned his employment with immediate effect on Wednesday,
16 December 2020. Mr Lalli provided a further response to Duo advising he would “take his
grievances to fair workplace standards” and that he had “obtained some professional advice
on this matter.”20
[35] While Mr Lalli disputed what Duo had done, I do not hold the view that consideration
of this criterion resolves in his favour. It is not the case that the delay in making this
application was contributed to by difficulties in resolving the dispute Mr Lalli had brought to
Duo’s attention.
4. Prejudice to the employer (including prejudice caused by the delay)
[36] The delay in the filing of the application is 13 days.
[37] The Respondent asserts that Mr Lalli has not provided any reasonable grounds for the
application being filed late.21 Beyond this, the Respondent has not provided any written
submissions as to prejudice it may face if the application were to proceed and Mr Peter
Fergusson in his oral evidence confirmed there was likely to be little prejudice suffered by the
Respondent as it’s circumstances had not altered.
[38] Consideration of this criterion is a neutral factor in considering whether there were not
exceptional circumstances.
5. The merits of the application
[39] The merits of the application to which I must have regard are whether or not the
limited evidence I have seen to date discloses a likely unfair dismissal.
[40] In relation to the Commission’s consideration of the merits of an application when
undertaking an analysis of whether an extension of time for the filing of an unfair dismissal
application should be granted, the Commission does not require detailed evidence and usually
does not make findings of fact as to the evidence which is brought forward on the merits of
the application. In matters such as this, the Commission will consider whether an applicant
has a sufficient case on the merits, accepting that in the absence of evidence on the contested
matters of merit, the Commission will usually not be in a position to make findings of fact on
those matters.22 Instead of a detailed consideration of the merits of a matter, the
Commission’s consideration of this question is to ascertain whether there is an arguable case
on behalf of the applicant; or alternatively whether it appears that such case either has very
19 Ibid.
20 Exhibit A3, Applicant Document, Second Letter to Ben Fergusson, 22 December 2020.
21 Form F3, Employer Response to Unfair Dismissal Application, 20 January 2021, item 2.2.
22 Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[2021] FWC 659
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strong or very weak merits on its face. It has been said in previous matters that a highly
meritorious claim may persuade a decision-maker to accept an explanation for delay that
would otherwise have been insufficient.23
[41] There is limited material before me addressing the merits of Mr Lalli’s application.
The Respondent has provided in support of its position two warning letters issued to Mr Lalli
for his performance during his employment. Mr Lalli accepts that he was issued with the first
of these, from October 2019, but disputes the one dated 18 September 2020 was ever given to
him.
[42] Mr Peter Fergusson in his evidence claimed that the company could not rely on Mr
Lalli being present at work due to taking periods of sick leave.
[43] The material before me at this time is inconclusive on most matters. While it is likely
a full hearing would lead to a finding Mr Lalli had been dismissed as a result of the argument
he had with Mr Ben Fergusson on Wednesday, 16 December 2020, there is less clarity as to
whether a finding of unfair dismissal would follow. While such is possible, it is not in a “high
prospects” category, and there are factors in the likely narrative from both parties that may
lead to a finding he was not dismissed unfairly. The uncertainties about each party’s case lead
me to find that consideration of the merits of the case is a neutral factor in my consideration
as to whether an extension of time should be granted for the making of Mr Lalli’s unfair
dismissal application.
6. Fairness as between the person and other persons in a similar position
[44] In considering whether I should grant an extension of time, I need to have regard to
whether it is fair to other unfair dismissal applicants whose applications are either currently
before the Commission, or have been decided in the past.24 It would be unfair to other
persons who have not been allowed a further period to make an unfair dismissal application in
the absence of exceptional circumstances.25 In relation to the question of fairness as between
applications arising out of the same employer, the Commission is not aware of there being
any other person presently before the Commission dismissed by the same employer for the
same underlying issue.26
[45] Consequently, and after consideration of the whole of the material before me and the
legislative criteria, I am not satisfied there are exceptional circumstances that would allow a
further period for an unfair dismissal application to be made by Mr Lalli.
[46] As a result, Mr Lalli’s application for unfair dismissal remedy must be dismissed, and
an Order doing so is issued at the same time as this decision.
23 Haining v Deputy President Drake (1998) 87 FCR 248, [250].
24 Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
25 Jalil v BMD Constructions Pty Ltd [2014] FWC 9357, [10].
26 Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773, [38].
[2021] FWC 659
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COMMISSIONER
Appearances:
Mr P. Lalli for himself
Mr P. Fergusson for the Respondent
Hearing details:
2021.
Melbourne (via video conference);
12 February.
Printed by authority of the Commonwealth Government Printer
PR726806
OF THE FAIR WORK C AUSTRALIA MMISSION THE SEAL
