FWA grants exceptional circumstances against Boylans


Boylans Transport to go into conciliation with former worker who was sacked after delivery mistake left customer unhappy

By Brad Gardner | July 19, 2011

A fleet manager claiming to have been made a scapegoat for Boylans Transport’s failure to provide enough trucks to meet customer needs will get his chance to press his unfair dismissal claim.

Fair Work Australia has allowed Marco Macciocca to pursue his case against the company despite him lodging his claim 10 days after the allotted deadline.

Commissioner Anna Lee Cribb ruled that the eviction of Macciocca and his family from their home around the time he lost his job amounted to exceptional circumstances and justified the delay.

She referred the matter to conciliation despite protests from Boylans Transport over allowing the application to proceed.

"There were a series of events which, when taken together, provide a reasonable explanation for the delay," Cribb says in her written judgement.

"To lose one’s family home through eviction cannot be fairly described as "common" or "usual"."

Macciocca told Fair Work Australia that Boylans was reducing the size of its truck fleet servicing its main clients at a time when the clients were increasing their workload. The former manager says a customer contacted Boylans requesting another vehicle because there were not enough.

"The result of this was said to be that a mistake regarding a delivery had been made on a Sunday night when he [Macciocca] was not at work," Cribb says.

A meeting between the customer and Boylans was held the following day without Macciocca.

"The outcome was that he was terminated when, technically, it was not his fault but rather, his second in command, whose job it was to manage the deliveries between Friday and Sunday. The applicant said that his deputy had made a mistake yet he (the applicant) had got the blame," Cribb says.

Fair Work Australia heard that Macciocca was not given any prior warning about being sacked and was immediately walked off the premises after the company’s decision.

He says he had previously held meetings with his supervisor to explain what he considered were unrealistic expectations on the transport fleet.

Boylans argued that moving house did not amount to exceptional circumstances and that the company’s actions were valid and procedurally fair.

Macciocca and his family received a notice on March 3 this year demanding they leave their property on April 8. He lost his job on March 28 and says he was focused on finding another home for his children and getting a job instead of filing an unfair dismissal application.

He lodged the application on April 21. The Fair Work Act requires individuals to lodge applications within 14 days of losing their jobs.

The Act also permits Fair Work Australia to extend the period if there is a valid reason for the delay.


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