Andrew Somerville v Riviera Taxis and Hire Cars Pty Ltd
[2022] FWC 1395
•2 JUNE 2022
| [2022] FWC 1395 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Andrew Somerville
v
Riviera Taxis and Hire Cars Pty Ltd
(C2021/8835)
| COMMISSIONER YILMAZ | MELBOURNE, 2 JUNE 2022 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied.
On 23 December 2021, Mr Andrew Somerville lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Riviera Taxis and Hire Cars Pty Ltd (Riviera). Mr Somerville commenced employment on 12 April 2021 and notice of dismissal took place on 29 November 2021. Mr Somerville contends that the dismissal took effect on 6 December 2021 and that the application is not out of time.
Mr Somerville was employed by Riviera in the full-time position of Operations Manager and after six weeks into the role he formed the view that the salary did not compensate for the afterhours work commitments. Mr Somerville contends that he subsequently sought an adjustment to his salary to compensate for the hours worked outside his normal working hours. Riviera submits that the role was salaried and a relatively autonomous position requiring management of drivers, passengers, and taxis around the operational hours of 8.00am to 4.00pm, with additional hours of work and flexibility to take time off in lieu. It is contended that the role was made redundant because of financial reasons. Mr Somerville contends that the financial reasons arose because two additional vehicles were purchased, in his view unnecessarily.
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. Mr Somerville contends that the application was made on time, while Riviera contends that the application is out of time.
Applicant’s submissions
Mr Somerville submits that he exercised a workplace right by requesting a pay adjustment to compensate for what he described as additional hours that his salary did not provide for. Some three months after exercising this workplace right, he submits that his employment was terminated for reason of redundancy. He further submits that no discussions took place prior to the redundancy concerning financial concerns that may place his employment at risk.
Mr Somerville submits that he was employed to assume the duties of another employee that had gradually reduced hours of work. He further submits that the Managing Director informed him following his request for a salary adjustment, that the Respondent did not have any more money, so an option was to reduce hours of work and apply for COVID-19 government assistance. This comment caused some trepidation to pursue the adjustment, nevertheless, after some time, he put his request in writing and requested a response within seven days. No response was received by Mr Somerville and following a further reminder to respond, he submits that Riviera purchased two additional vehicles which caused him concern for his employment. Mr Somerville also contends that he was excluded from business decisions after these events and noticed that the employee that he “replaced” in the operations manager role, was allocated additional hours.
Mr Somerville contends that his dismissal is a contravention of his workplace rights in terms of:
· S.340 Protection of Workplace Rights
· S.343 Coercion
· S.344 Undue influence or pressure
Respondent’s submissions
Riviera submit that Mr Somerville’s employment was dismissed with immediate effect and one week of notice in lieu. It states that Mr Somerville last worked on 29 November 2021, and once outstanding entitlements were calculated, final wages and payment in lieu of notice was sorted. Riviera submit the delay in payment relates to the absence of information concerning days taken off by Mr Somerville.
Riviera submit that Mr Somerville was genuinely made redundant, and his position has not been replaced. It tendered in evidence the letter of termination of employment, an employment separation certificate and evidence of ATO debt.
In relation to late payment of final pay, Riviera tendered emails between the Respondent and Applicant which noted absent days due to annual leave, personal leave and rostered day off.
Consideration
Date Dismissal took effect
The first matter to be considered is the date the dismissal took effect. Mr Somerville contends that on 29 November 2021, he was dismissed and given one week notice. The notice expired on 6 December 2021, meaning the application is within the statutory 21-day time frame.
Riviera contend that Mr Somerville was dismissed on 29 November 2021 and given one week in lieu of notice. The last day of employment was 29 November 2021 and the evidence in support of the date of dismissal was the letter of termination of employment and the employment separation certificate. The letter of termination is dated 29 November 2021 and states that due to an “income downturn and lack of expected recovery, the position of full-time operations manager is no longer needed”. It further states that his “employment will end immediately, Based on your length of service, your notice period is ONE week. In lieu of receiving that notice, you will be paid the sum of $1328.27.” The employment separation certificate contains the date the employee started and date of dismissal for the reason of redundancy. While the certificate was signed and dated on 22 December 2021, it was completed and provided to Mr Somerville prior to the application being filed with the Commission.
On this evidence Mr Somerville’s application is out of time by three days as the date of effect of dismissal is 29 November 2021.
Extension of time
General protections applications involving dismissal must be made within 21 days.
However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a)The reason for the delay; and
(b)Steps taken to dispute the termination; and
(c)Prejudice to the employer; and
(d)Merits of the application; and
(e) Fairness between the person and other persons in a like position
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[1] where it was held that:
“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 regular occurrence, even though it can be a on 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.”[2]
I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
The general protections involving dismissal application was lodged with the Commission on 23 December 2021, 3 days late.
Mr Somerville contends that his application was on time, and if it is late, this is because he did not know what he would claim as final pay were still outstanding at the time that he filed this application.
Mr Somerville confirmed that the last day he worked for the Respondent was 29 November 2021. He provided no other explanation for the delay outside the 21-day limit.
Riviera submits that no reasonable explanation was provided for the delay.
There must be a credible reason for the delay.[3] I do not agree that the reason for the delay is credible reason, and it cannot be accepted as being exceptional, unusual, out of the ordinary, uncommon or special. I am not satisfied that Mr Somerville has demonstrated a credible reason regarding this consideration, and I consider the reason given for the delay does not weigh in his favour.
Steps taken to dispute the termination
Riviera submit that Mr Somerville did not challenge his dismissal and the first they became aware of the application was when it was served on them. However, they submit the matter of final pay was still to be resolved between them right up to the day before the application was filed.
Mr Somerville submits that he was shocked by the dismissal and conceded that he did not challenge the dismissal with the Respondent because he did not know what he would be claiming because his final wages were still outstanding. He submits that the dispute is more about wages but did submit during the hearing that the Respondent did not take his calls.
On the submissions this consideration does not weigh in Mr Somerville’s favour.
Prejudice to the employer
Mr Somerville submits that his application is on time, and should it not be on time, there is no prejudice to the Respondent.
Riviera submit there is unfairness if the late application is granted as it had genuinely made the position redundant and afforded Mr Somerville procedural fairness.
While the Respondent may consider it an inconvenience should an extension of time be granted, there is no evidence of prejudice. However, even the mere absence of prejudice is an insufficient basis to grant an extension. This consideration therefore is neutral.
Merits of the application
Mr Somerville does not accept that the reason of redundancy is genuine. He submits that he was employed to replace another employee as operations manager which remains an essential position for the business. While it is submitted that the management of drivers, dealing with customers and other duties are still being performed among remaining employees, he states that the full-time role continues to exist in the business and therefore the role is not redundant.
Riviera contends that the dismissal is a genuine redundancy and the request for a wage adjustment was of no consequence as the business could not afford any adjustment as it faced requests for payment of unpaid debts. Following the redundancy, the role was divided among the existing administration officer, part-time driver and customer support officer, the general manager and some duties were done away with.
Riviera submits it did not have a dedicated operations manager for most of the past five years until engaging Mr Somerville. It further submits that the part-time employee that previously performed several of the duties resumed the duties that he was capable of performing. However, the role was not titled operations manager but driver and customer support officer, just as it was prior to Mr Somerville’s appointment. The email sign off by the employee suggesting that he assumed the role, was not authorised, and was corrected when the error was identified. Riviera tendered in evidence the correct email sign off by the part-time employee.
Riviera submits that due to its size there was no other position to which Mr Somerville could be redeployed. Mr Somerville contends as the duties are still required there is no redundancy. This argument is incorrect, the authorities are clear that the redundant position is dependent on the role or job and not the survival of the duties. In this instance it is argued that the job of operations manager is redundant, notwithstanding the continued expectation that duties associated with the job have survived albeit being shared by at least three other existing employees.
The premise of Mr Somerville’s merit argument is that the redundancy is not genuine, and that the dismissal is connected to his workplace right to ask for a wage adjustment and therefore his dismissal is a contravention of s.340, the protection of a workplace right. Mr Somerville did not explain the relevance of s.343 coercion and s.344 undue influence or pressure which he contends are also contravened.
While merit is a consideration in an extension of time, the Commission is not required to consider the detail of the substantive case but may consider whether the Applicant has a sufficient case based on the merits.[4] Having considered the submissions and evidence tendered, I cannot conclude that Mr Somerville has a convincing meritorious application. While I have not tested the merit and it is not appropriate to do so in an extension of time, I do observe that Mr Somerville’s main motivation for the application was the payment of wages and his view that the redundancy was not genuine nor followed any procedural fairness including being informed that financial difficulties facing the business were a risk to his role. Based on these submissions, an unfair dismissal application may have been more suitable notwithstanding that the period of employment was less than 12 months. In an unfair dismissal application Mr Somerville would not have met the minimum employment period requirement. In the absence of a meritorious application due to the material before the Commission, I do accept that the facts would be strongly contested, and for this reason, this consideration is a neutral factor.
Fairness between the person and other persons in a like position
The purpose of this consideration is concerned with the consistent application of principles and relates to like matters or other employees of the Respondent. Relevantly, a Full Bench noted, “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 position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[5] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[6]
As neither party could refer me to any matters relevant to these proceedings, I find this consideration neutral.
Conclusion
In this instance, I must be satisfied that there are exceptional circumstances warranting an extension of time. It is on the balance of the considerations that I have decided not to grant an extension of time.
Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
Mr A. Somerville on his own behalf.
Mr M. Donelly for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
29 April
[1] [2011] FWAFB 975.
[2] Ibid at [13].
[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 (unreported, AIRCFB, Guidice J, Acton SDP, Gay C, 10 November 2000)[14].
[5] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].
[6] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
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