Anna Wijeyesinghe v Pioneer Personnel Pty Ltd T/A Pioneer Facility Services

[2016] FWC 3899

[2016] FWC 3899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Anna Wijeyesinghe
v
Pioneer Personnel Pty Ltd T/A Pioneer Facility Services
(U2016/1505)

VICE PRESIDENT WATSON MELBOURNE, 16 JUNE 2016

Application for relief from unfair dismissal – Application for extension of time for lodgement – Whether exceptional circumstance – Fair Work 2009, s.394.

[1] The decision, edited from a decision given on transcript on 7 June 2016, concerns an application for an extension of time to lodge an unfair dismissal application by Ms Wijeyesinghe under s.394 of the Fair Work Act 2009 (the Act) arising from the termination of her employment by Pioneer Personnel Pty Ltd T/A Pioneer Facility Services (Pioneer Personnel).

[2] I am required to determine the application by reference to s.394(3) of the Act and only grant an extension of time if I am satisfied that there are exceptional circumstances, taking into account the factors set out in that subsection.

[3] There has been evidence led by the parties in relation to a number of those factors and I consider each of those matters in turn.

[4] The first factor is the reason for the delay. It is necessary to have regard to the whole period of the delay.  The termination of Ms Wijeyesinghe's employment occurred on 1 December 2015. It was communicated to her on that day and it had effect on that day.  The application for an unfair dismissal remedy was made on 1 April 2016.  The extension of time therefore is for a period of approximately three months and 10 days from the expiry of the 21-day period from 1 December 2015.

[5] The evidence establishes that the reason for most of the period of the delay was the belief of Ms Wijeyesinghe that her termination was on account of a genuine redundancy. She was told of those circumstances at the time of her dismissal. Only in March of this year did she become aware that Pioneer Personnel was advertising for a position of financial manager, and she then formed the view that there was a case available to her that the termination was not on account of a genuine redundancy.

[6] There was a further period after Ms Wijeyesinghe noticed the advertisement for the finance manager position.  That period included a number of public holidays and Ms Wijeyesinghe contended that she needed to make contact and research the requirements for filing an application and that accounted for the period after becoming aware of the advertisement.

[7] Those reasons for delay appear to me to be substantial reasons because if the employer did not employ someone in a similar position then there is a strong, if not compelling case, that the termination was on account of a genuine redundancy.  If, however, a reasonably short period afterwards there was an advertisement for a similar position, then it raises questions as to whether the position itself was redundant and whether alternative positions could have been looked at in relation to the duties required of the employer in the future.

[8] The delay in this case was a number of months, and there must be some limit to the reasonableness of a belief that the reasons given at termination were not correct, but I have regard to the seniority of the role occupied by Ms Wijeyesinghe and the obvious need when positions of such a role are required, to have regard to the needs over a period of time rather than a decision at a particular point in time.

[9] Also, there are complications in relation to this matter. It appears that Ms Wijeyesinghe was employed previously by the accountant employed by Pioneer Personnel, and that the ongoing relationship between the firm of accountants and Pioneer Personnel appears to have been a complicating factor in the performance of duties. Additional complications arise from the apparent intention of the employer to outsource certain of the work to the accountancy firm and a review of that position that appears to have occurred a short time later.

[10] So I have regard to all of those circumstances and the reasons advanced for the delay for the entirety of that period. I do not consider that there is any real significance in relation to factors s.394(3)(b) and (c). Ms Wijeyesinghe became aware of the dismissal at the time it took effect and she didn't take any immediate action to dispute the dismissal because of what she was told at the time.

[11] The employer contends that there is some prejudice caused by the delay in this matter.  I am not persuaded that there is any significant prejudice in relation to the matter.  The primary issue that appears to arise is whether the termination was a genuine redundancy and whether that could have been argued at the time based on circumstances as they evolved or subsequently appears to be of some significance, but would involve similar questions regardless of when the application is made.

[12] In terms of the merits of the application, there would appear to be a significant hurdle that Ms Wijeyesinghe would need to overcome. That concerns the contention that the termination was a case of genuine redundancy.  There are a number of elements of that test and each one of those elements would need to be satisfied by the employer. I do not express any concluded view about the application of that concept in s.389 of the Act.

[13] However, it appears to me that the foreshadowed argument by the employer that this was a case of genuine redundancy is a matter of some strength and it represents a significant hurdle for Ms Wijeyesinghe in proceeding with the application. 

[14] I do not consider that any fairness between persons in a similar position arises in the circumstances of this matter.

[15] Based on a consideration of all of those matters I need to consider whether the circumstances can be described as exceptional and whether an extension should be granted.  As I have indicated, by reference to the particular factors I think this is a matter of fine balance, but I consider, having regard to the seniority of the role, the nature of the communication of the redundancy and the decision of the employer to engage an in-house finance manager with some overlap in duties required to be performed compared to the financial controller/office manager role held by Ms Wijeyesinghe, that the circumstances are exceptional and that it is appropriate to fully test the contention that the termination was a case of genuine redundancy.

[16] As I said earlier, I express no concluded view about that matter other than that it would appear to be a significant hurdle.  Because I am not determining that matter now and the arguments that are available to Ms Wijeyesinghe have only really emerged in the recent past, since the position was advertised, I consider that the circumstances are exceptional and an extension of time should be granted in the matter.  An order to that effect has been issued. 1

VICE PRESIDENT

Appearances:

Ms Wijeyesinghe, A on her own behalf.

Mr Davey, of counsel on behalf of Pioneer Personnel Pty Ltd T/A Pioneer Facility Services.

Hearing details:

2016.

Melbourne.

7 June.

Final written submissions:

Ms Wijeyesinghe on 20 April 2016.

Pioneer Personnel Pty Ltd T/A Pioneer Facility Services on 2 May 2016.

 1   PR581351

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