Aaron Anonuevo v Rivalea (Australia) Pty Ltd [2024] FWC 537

1 Fair Work Act 2009 s.394—Unfair dismissal Aaron Anonuevo v Rivalea (Australia) Pty Ltd (U2024/678) COMMISSIONER TRAN MELBOURNE, 28 FEBRUARY 2024 Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed. [1] On 22 January 2024, Mr Aaron Anonuevo (the Applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s 394 of the Fair Work Act (the Act) in relation to the termination of his employment by Rivalea (Australia) Pty Ltd (the Employer/Respondent). [2] Rivalea is part of the JBS Australia group of companies, which manages farming and meat processing operations.1 [3] Mr Anonuevo was a Leading Hand at Rivalea based at Huntly, and his employment started on 29 August 2016. [4] The Employer sent Mr Anonuevo a termination letter dated 27 November 2023, ending his employment on the basis that he was unable to perform the inherent requirements of his duties now or in the foreseeable future. [5] Before determining whether the dismissal was unfair, the Commission must be satisfied that an application was made within time or allow a further period of time under s 394. [6] The application form discloses that the dismissal took effect on Monday 25 December 2023. The statutory period of 21 days therefore ended at midnight on Monday 15 January 2024. As the application was filed on 22 January 2024, it was 7 days after the end of the statutory period. [7] Having considered the evidence and submissions of the parties, and the factors in s 394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. Therefore, the application is dismissed. My detailed reasons follow. [2024] FWC 537 DECISION -- 1 of 9 -- [2024] FWC 537 2 Background [8] Mr Anonuevo commenced employment with Rivalea on 29 August 2016. At the time that his employment ended, he held the position of Leading Hand at Huntly. On Mr Anonuevo’s case, he was Leading Hand from 8 August 2018. The Respondent’s evidence is that he commenced the Leading Hand role from 25 October 2021. It is not necessary for the purposes of this matter to determine when Mr Anonuevo became Leading Hand. [9] In around July 2022, Mr Anonuevo was on a period of leave from work. He had an accepted workers compensation claim from around this time and, at the time that his employment ended, had not yet returned to work. [10] From July 2023, Rivalea started a process of enquiring about Mr Anonuevo’s return to work; this included corresponding with Mr Anonuevo and requesting medical examination and reports. [11] On 27 November 2023, Rivalea sent a letter to the Applicant by email. The letter was signed by Ms Rebecca Fussell, Senior HR Business Partner. The letter said that the reason for terminating Mr Anonuevo’s employment was that he was “unable to perform the inherent requirements of [his] pre-injury duties now or in the foreseeable future.” The letter also stated: “I regret to advise that your employment will be terminated effective as of Monday, 25 December 2023.” [12] The facts and chronology of the matter were not relevantly in dispute between the parties. Evidence and Arguments [13] Directions were issued and material, including witness statements, documentary evidence and submissions, were filed by both parties in accordance with those directions. Mr Anonuevo’s initial materials were directed towards the merits of his matter and did not substantively address the matters relating to an extension of time. Following a case management conference, Mr Anonuevo filed and served an outline of argument relating to the extension of time on the day of the hearing. [14] My chambers compiled a Digital Hearing Book from the filed materials, which was provided to parties prior to the hearing. I accepted into evidence the entirety of the Digital Hearing Book. The Applicant’s late outline of argument regarding extension of time was accepted into evidence and marked as Exhibit 10. The Respondent, rightfully, did not object to the late acceptance of this material.2 [15] A hearing via Teams was held on 16 February 2024. [16] Mr Anonuevo gave evidence on his own behalf. Ms Fussell gave evidence on behalf of the Respondent. I found both gave clear and forthright evidence. -- 2 of 9 -- [2024] FWC 537 3 Representation [17] Mr Anonuevo represented himself. [18] The Respondent was represented by Ms Sakrzewski-Hetherington, Group Legal Counsel – Employee Relations, JBS Australia Pty Ltd. Rivalea is an associated entity of JBS Australia Pty Ltd, and both are a part of the JBS Australia group of companies. [19] I am of the view that Ms Sakrzewski-Hetherington did not need to seek permission to represent, as s 596(4)(a) (relevantly) provides that a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person. I am of the view that person in this context means broadly the specific employing legal entity and the group of companies that entity may be a part of. [20] Person is not defined in s 596 or the Act, however, the Acts Interpretation Act 1901 (Cth) at s 2C provides that in any act, “expressions used to denote persons generally … include a body politic or corporate as well as an individual.” The underlying principle of s 596 of the Act, as noted in the Explanatory Memorandum to the Act is that persons dealing with the FWC would generally represent themselves.3 Further, s 577 of the Act states that the Commission must perform its functions and exercise its powers in a manner that is: • Fair and just; • Quick, informal and avoids unnecessary technicalities; • Open and transparent; and • Promotes harmonious and cooperative workplace relations. [21] The Commission’s Practice Note on Lawyers and Paid Agents provides as an example falling under s 596(4)(a) where a company is represented by a lawyer employed by the company. In the context of avoiding unnecessary technicalities, I extend this meaning to include the group of companies of which a company may be a part and on which it would usually rely upon for internally employed lawyers. [22] For the sake of completeness and if I am wrong about the above, I nevertheless grant permission for Rivalea to be represented. Rivalea’s submitted that, while it had a human resources team, the team did not have the experience or knowledge to represent Rivalea effectively as neither of the senior members of the team have advocacy experience, and one is a witness in the matter. Rivalea also submitted that representation would assist the Commission to deal with the matter more efficiently, taking into account its complexity. [23] The question relating to extension of time is not particularly complex. However, if I grant the extension and the merits of the matter were to be determined the detailed facts and process of Rivalea’s decision making regarding Mr Anonuevo’s ability to perform the inherent requirements of his role may have entailed a degree of factual complexity where legal representation could have assisted me to deal with the matter more efficiently. -- 3 of 9 -- [2024] FWC 537 4 [24] However, I am persuaded by the submissions that Rivalea would be unable to effectively represent itself, and grant permission on that basis. [25] While it did not form part of my reasons for granting permission, I note that Mr Anonuevo did not object to the Respondent being represented. Relevant Law [26] Section 394(2) of the Act provides that an application for an unfair dismissal remedy 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). [27] Section 394(3) of the Act provides that: [t]he 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. [28] The legislation is clear that the power to extend time is discretionary, but may only be exercised if first satisfied that there are exceptional circumstances. [29] Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd4 establishes the following: • the Commission must consider all of the circumstances; • the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon; • but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare; -- 4 of 9 -- [2024] FWC 537 5 • a single event can be exceptional; • a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon. [30] The matters in s 394(3) are factors to be taken into account in ascertaining whether there are exceptional circumstances. The factors themselves do not have to be exceptional. The final conclusion about whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.5 Factors to take into account – 394(3)(a) – the reason for the delay [31] The Full Bench in Ozsoy v Monstamac Industries Pty Ltd6 that an applicant needs to provide a credible reason for the whole of the period that the application was delayed, and that the delay is the period beyond the specified 21 days. [32] Mr Anonuevo’s evidence and submission is that the reason for the delay in lodging his application was that it was not clear to him when his termination took effect. I deal with this matter further under the factor s 394(3)(b)) – whether the person first became aware of the dismissal after it had taken effect. [33] Mr Anonuevo also submitted that he suffers from mental health issues (anxiety, depression and adjustment disorder), which affects his attention and concentration to matters, that English is not his primary language and he has limited resources and insufficient knowledge of Fair Work Commission processes. [34] In oral evidence, Mr Anonuevo submitted that the reason for the delay after the time he understood his dismissal to take effect (10 January 2024) and including the period beyond the statutory 21 days (15 January 2024) until he lodged his application was that due to his health, he had trouble concentrating, that it takes a lot of effort and energy for him to focus and that he often gets restless and needs to be drunk in order to complete difficult tasks that require long periods of concentration. Mr Anonuevo said that he experienced these effects on his health every day. Mr Anonuevo also gave evidence that he had started the application earlier but did not manage to complete it until the date he lodged it.7 [35] Mr Anonuevo also gave evidence that he was weighing up whether to make the application about his dismissal or to let the matter go.8 [36] Ignorance of the time limit and the Commission’s processes is not, without more, sufficient basis for a finding of exceptional circumstances.9 Lack of knowledge and unfamiliarity with the processes is not an unusual circumstance. [37] In relation to language, Mr Anonuevo adequately represented himself before the Commission, without the assistance of an interpreter. While English is not his primary language, Mr Anonuevo ably participated in his matter. That English may not be an applicant’s primary language is not, of itself, an exceptional circumstance.10 -- 5 of 9 -- [2024] FWC 537 6 [38] In relation to his health being a reason for the delay, Mr Anonuevo did not provide any supporting medical evidence in relation to the degree of his incapacity during the period of delay. Past cases indicate that it is necessary to provide evidence that indicates incapacity to the extent that an applicant is unable to file an unfair dismissal application within time;11 and that such impact must be supported by medical evidence.12 [39] I must also consider whether all these factors together provide a reasonable explanation for the delay. I have much sympathy for Mr Anonuevo but I do not consider each of the reasons offered, nor their combination, a reasonable explanation for the delay. Mr Anonuevo had the support of a lawyer in relation to his workers compensation matter. He gave evidence that he considered other applications available to him and commenced those application forms as well. [40] Rivalea referred me to the decision of Hunt C in Smith v The Salvation Army Employment Plus13 where she said at [60] that “completion of the application form is not incredibly taxing” and that it would “typically take an applicant not more than one hour, and certainly less for many people to complete an application form.” I am persuaded by this view, but note that Mr Anonuevo’s additional difficulties including language and health may have made the process more onerous for him than others without those additional challenges, but not so onerous that it could not have been completed within the statutory time period. [41] I consider that this factor does not weigh in favour of extending time. 394(3)(b) – whether the person first became aware of the dismissal after it had taken effect [42] Mr Anonuevo did not dispute that he received the letter of termination nor that the letter said that his termination took effect on 25 December 2023.14 His argument is that, based on an email dated 1 December 2023 from Ms Fussell to Mr Anonuevo’s lawyer for his workers compensation matter (in which Mr Anonuevo was copied)15 that the dismissal did not take effect until his final payments were made, which occurred on 10 January 2024. He then filed his application 7 days later. [43] Rivalea submits that while Mr Anonuevo may have been mistaken or confused, there was no reasonable foundation for the misunderstanding about the date that his dismissal took effect. Rivalea also pointed to correspondence from Mr Anonuevo that indicated he was aware that his employment end date was 25 December 2023, being his email of 2 January 202416 and in his application form and submissions. [44] Mr Anonuevo supplied evidence of his various enquiries to Rivalea about the end of his employment. Rivalea provided the same emails. [45] His email of 2 January 2024 to Ms Fussell appears to indicate that he is aware the end date is 25 December 2023 but was confused by his payslip.17 The following emails of 4 January 202418 and 9 January 202419 do little more than seek a response to his email of 2 January 2024. [46] Mr Anonuevo does not dispute that he received the letter of termination dated 27 November 2023 that stated that his employment would end on 25 December 2023. In oral evidence, Mr Anonuevo indicated that he received the letter by email and as a letter, and that this occurred before 25 December 2023.20 This was reiterated in an email dated 1 December -- 6 of 9 -- [2024] FWC 537 7 2023 from Ms Fussell to Mr Anonuevo’s lawyer for his workers compensation matter, that Mr Anonuevo was copied into.21 That email also said that he would be paid out his entitlements once the termination took effect. [47] All of the above confusion was cleared up for Mr Anonuevo when he received his payslip on 10 January 202422 which included his termination payments for annual leave and long service leave entitlements. This date is within the 21-day statutory limit. Mr Anonuevo however submitted that the date that he received his final payments was when his dismissal was ‘complete’ and effective. [48] I find that Mr Anonuevo was well aware of the termination of his employment and that Rivalea said that it took effect on 25 December 2023. There was nothing in the payslip of 10 January 2024 that made this clearer than the termination letter, and nothing in the correspondence after the termination letter that objectively could have caused confusion about the effective end date. [49] I consider that this factor does not weigh in favour of extending time. 394(3)(c) – any action taken by the person to dispute the dismissal [50] The actions Mr Anonuevo took after his dismissal were in relation to enquiring about his pay slip and asking for contact details of the Respondent. There was nothing in the correspondence between the parties that indicated that Mr Anonuevo challenged the dismissal. [51] I consider that this factor does not weigh in favour of extending time. 394(3)(d) – prejudice to the employer (including prejudice caused by the delay) [52] The delay was 7 days. [53] Mr Anonuevo submitted that the delay would not cause disadvantage or unfairness to the Respondent, who themselves lodged the Response form F3 late. The Respondent made no submissions in relation to this factor. [54] I consider this factor neutral in my determination of this matter. 394(3)(e) – the merits of the application [55] My assessment of the merits of a substantive application for the purposes of the question before me (whether to grant an extension of time) is primarily whether the Applicant has an arguable case. It does not require a detailed analysis of the substantive merits.23 The Full Bench in Long v Keolis Downer T/A Yarra Trams24 stated that in relation to this factor, the Commission is not in a position to make findings of fact on contested issues, and nor should parties be required to present their evidentiary cases twice. [56] While it was not directed, both parties filed material relating to the substantive merits of the Application. Mr Anonuevo’s case is that Rivalea failed to follow a fair process in terminating his employment and that the termination of his employment was harsh in the -- 7 of 9 -- [2024] FWC 537 8 circumstances. Rivalea provided documentary evidence of the process it did follow. It would appear on the basis of the filed correspondence that the argument about procedural failures is not entirely without merit. [57] I consider this factor to weigh mildly weigh in favour of extending time. 394(3)(f) – fairness as between the person and other persons in a similar position [58] The Full Bench in Perry v Rio Tinto25 stated that this consideration is concerned with the importance of the application of consistent principles in cases of this kind and that it may relate to matters that are currently before the Commission or that have been previously decided. The Full Bench in Croker v Erndit Logistics Pty Ltd26 has indicated that this factor may involve a comparison of cases involving similar facts. [59] The Respondent made no submissions in relation to this factor. Mr Anonuevo did make submissions under the heading of this factor, but his submissions more accurately relate to the reasons for delay, and I have considered them under that factor. [60] As I am unaware of any relevant matter, I consider this factor neutral in my determination of this matter. I do not grant an extension of time [61] Weighing up all of the factors, I have formed the view that there were not exceptional circumstances such as to allow me to exercise a discretion to extend time. [62] I therefore dismiss the Applicant’s application for an unfair dismissal remedy. COMMISSIONER Appearances: A Anonuevo for himself. B Sakrzewski-Hetherington for the Respondent. Hearing details: 16 February 2024. -- 8 of 9 -- [2024] FWC 537 9 Video Hearing. Printed by authority of the Commonwealth Government Printer <PR771914> 1 Exhibit 8 [3] – [4], Digital Hearing Book (DHB) 108. 2 Transcript of Proceedings, PN6. 3 Explanatory Memorandum, Fair Work Bill 2008 (Cth), at [2291]. 4 [2011] FWAFB 975 at [13]. 5 Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39]. 6 [2014] FWCFB 2149 at [31]. 7 Transcript of Proceedings, PN38; PN49-55. 8 Ibid, PN54. 9 Guttenbeil v Saputo Dairy Australia [2023] FWC 1277 at [12]; Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [11]. 10 Kelun Wang v. Daw Trading P/L t/a A Grade [2013] FWC 9270 at [28]. 11 Guttenbeil v Saputo Dairy Australia [2023] FWC 1277 at [15]; O’Neill v Kikada Lane Dental [2022] FWC 893 at [15]. 12 Duffy v McHugh Steel [2024] FWC 362 at [13]; Lister v Qube Heavy Lift [2024] FWC 370 at [13]. 13 [2020] FWC 3006. 14 Transcript of Proceedings, PN30. 15 Exhibit 4, DHB 76; Exhibit 8, DHB 219. 16 Exhibit 4, DHB 80; Exhibit 8, DHB 232. 17 Exhibit 4, DHB 79; Exhibit 8, DHB 228. 18 Exhibit 4, DHB 80; Exhibit 8, DHB 232. 19 Exhibit 8, DHB 235. 20 Transcript of Proceedings, PN30. 21 Exhibit 4, DHB 76; Exhibit 8, DHB 219. 22 Transcript of Proceedings, PN32. 23 See Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [48]; also Sutton v Hepburn Shire Council [2022] FWCFB 109 at [26]. 24 [2018] FWCFB 4109 at [72]. 25 [2016] FWCFB 6963 at [41]. 26 [2023] FWCFB 224 at [49]. -- 9 of 9 --