Anthony Lifshack v Dominant (Australia) Pty Ltd T/A Dominant Chemicals

[2012] FWA 5165

[2012] FWA 5165

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Lifshack
v
Dominant (Australia) Pty Ltd T/A Dominant Chemicals
(U2012/7014)

COMMISSIONER HAMPTON ADELAIDE, 5 JULY 2012

Termination of employment - application for unfair dismissal remedy - extension of time for lodgement - whether exceptional circumstances exist to warrant an extension - extension of single day to file granted.

BACKGROUND AND CASE OUTLINE

[1] The matter arises in the context of an application made by Mr Anthony Lifshack (Mr Lifshack the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The respondent employer is Dominant (Australia) Pty Ltd T/A Dominant Chemicals (Dominant or the respondent).

[2] The applicant was dismissed on 28 March 2012 on the basis of what was described by Dominant as a redundancy. There is a dispute as to whether this is the real reason for the dismissal. The unfair dismissal application was lodged with Fair Work Australia on 12 April 2012 and the applicant has sought an extension of time to permit the matter to be lodged beyond the 14-day period nominated by s.394(2) of the Act.

[3] The unfair dismissal matter has not been subject to conciliation and the respondent opposes the extension of time being granted. The file has been assigned to me to deal with the extension of time application.

[4] Given the relevant provisions of the Act, and the apparent existence of some factual disputes, I have now heard further from the parties and received evidence pertaining to the extension of time application. 1 Following a hearing on 18 June 2012 I determined that an extension of time would be granted and indicated that reasons for that decision would subsequently be issued.

[5] The applicant, who was not separately represented, contended that there were exceptional reasons for the delay (of one day) in filing this application associated with an earlier application taken pursuant to s.365 of the Act (the General Protections application) and certain other events.

[6] The applicant presented a witness statement and an outline of submissions containing the factual basis of the application. 2 He also gave evidence in the matter.

[7] The respondent was represented by Mr Higgins, its State Managing Director, and it contended that the applicant did not file the application within the statutory period and an extension of time should not be given. 3 The respondent did not seek to lead any evidence, or challenge that provided by the applicant. I note that Dominant has also taken a jurisdictional objection, being that the applicant’s dismissal was a genuine redundancy within the meaning of s.389 of the Act.

[8] Given the circumstances, I went to some lengths to ensure that both parties understood the nature of the application and the issues that would need to be considered, and facilitated the giving of evidence by both parties if they sought to rely upon disputed facts. 4

THE STATUTORY CONTEXT

[9] Section 394 of the Act in dealing with applications for a remedy in relation to dismissals provides relevantly as follows:

“….

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[10] Section 396 of the Act relevantly provides that Fair Work Australia must determine whether the application was made within the period required by s.394(2), which includes the potential extension to the 14-day period, before dealing with the merits of the application.

THE EVIDENCE AND GENERAL FACTS OF THE MATTER

[11] I found the applicant’s evidence to be genuine and supportive of the present application.

[12] Mr Lifshack apparently commenced employment with the respondent in late 2010 in the position of Store Person.

[13] On Wednesday 28 March 2012, Mr Lifshack was dismissed from his employment on the basis of an alleged redundancy. He was informed of this on that day and was advised that he would subsequently receive details of his entitlements. I note also that on 28 March, the applicant made certain bullying and other complaints to management. I make no findings at this stage as to whether this is related to, or was the reason for, the dismissal as contended by the applicant.

[14] On Friday 30 March 2012, Mr Lifshack received written confirmation of his dismissal, the alleged reasons for that decision, and the detail of his termination payments.

[15] On or about 4 April 2012, Mr Lifshack contacted the Fair Work Australia helpline 5 and received some information about his options in terms of disputing the termination. He formed the view that the General Protections application was appropriate given what he saw as the link between the bullying allegations and the dismissal.

[16] On 4 April 2012, Mr Lifshack filed the General Protections application.

[17] During the days that followed, Mr Lifshack spoke a number of further times with the Fair Work Australia helpline and sought some additional information. Having done so, by mid April he considered that an unfair dismissal application would be a better alternative.

[18] The 14 day limit established by s.394 of the Act concluded (in the applicant’s circumstances) on Wednesday 11 April 2012.

[19] On Thursday 12 April 2012, Fair Work Australia sent the applicant and the respondent a notice of listing for the General Protections application. The applicant immediately attended Fair Work Australia’s Adelaide office and filed both a notice of discontinuance for the General Protections application and subsequently this application pursuant to s.394 of the Act.

[20] I note that on 16 April 2012, Dominant filed its response to the General Protections application. This was apparently completed on 12 April 2012.

[21] It is against this background that I have assessed the various considerations cited by the Act.

CONSIDERATION

[22] Section 394(2) of the Act provides a 14-day period within which to lodge an unfair dismissal application. The period is defined as being 14 days after the dismissal took effect and the 14-day period is exclusive of the day of the event, in this case, the dismissal. 6

[23] This application was filed one day outside of the 14-day period and accordingly an extension of time is required if the substantive unfair dismissal application is to be heard.

[24] Section 394(3) of the Act provides Fair Work Australia with a discretion to extend the time for lodgement beyond the 14-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take account of the considerations outlined in paragraphs (a) to (f) of s.394(3) of the Act. I have done so in this matter.

[25] Although the statutory discretion in s.394(2) requires the considerations in s.394(3) relating to the existence of exceptional circumstances to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act. In assessing these matters I have been mindful of the approach to the concept of exceptional circumstances as summarised by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd. 7

The reason for the delay

[26] The delay is very short however the Parliament has established a time limit and the explanation for the delay must have some reasonable basis.

[27] The applicant relies in part on the fact that he proceeded on the basis of the General Protections application and following further information he formed the view that he should pursue this application. Further, he acted promptly to discontinue the earlier matter and to lodge this application. He also relies upon the fact that there were a number of public holidays falling with the 14 day period.

[28] In circumstances where an applicant merely changes their mind about their course of action, any explanation should be carefully considered. Other considerations aside, these circumstances are not likely to lead to exceptional circumstances within the meaning of the Act.

[29] In this case, the applicant acted promptly to contest the dismissal, sought some further information and advice and then expeditiously made the necessary discontinuance and the alternative application.

[30] In summary, there is some explanation for the delay in lodging the application.

When the person first became aware of the dismissal after it had taken effect

[31] Mr Lifshack became aware of his dismissal on the day that it took place. He was advised that he would subsequently receive confirmation in writing of the basis of the dismissal and his entitlements. This took place some three days later.

[32] This is a relevant consideration in relation to this matter.

Any action taken by the person to dispute the dismissal

[33] This consideration is clearly related in this case to the reasons for the delay as discussed above.

[34] It is evident that the applicant took prompt steps to seek information and to lodge an application to dispute the dismissal. The respondent was aware at all times from the service of the General Protections application that the dismissal was disputed.

[35] The approach of Mr Lifshack demonstrates a consistent desire to expeditiously pursue the matter.

Prejudice to the employer (including prejudice caused by the delay)

[36] The respondent has not relied upon any prejudice, including that which is said to arise from the delay. The absence of demonstrable prejudice is a relevant consideration 8 however the absence of such prejudice is also not in itself a reason to grant an extension.9

The merits of the (unfair dismissal) application

[37] The consideration of the merit of the application in this context is limited to the prima facie merits. 10

[38] The respondent contends that the applicant was dismissed on the basis of a genuine redundancy and had made a jurisdictional objection in that light. The applicant contends that there was no consultation about the dismissal and that it was in fact a response to his bullying allegations.

[39] Section 385 of the Act provides in effect that a person who is dismissed on the basis of a “genuine redundancy” will not be unfairly dismissed. Section 389 defines a genuine redundancy in the following terms;

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[40] There is a dispute as to whether the dismissal is related to operational requirements. The respondent accepts that it did not consult with the applicant about the alleged redundancy prior to implementing the decision. 11 There is no indication of whether redeployment would have been reasonable. In any event it is not appropriate or necessary for me to make any findings about these matters.

[41] It is sufficient for present purposes to confirm that the applicant has an arguable case that he was not dismissed as a result of a genuine redundancy and that he was dismissed unfairly.

Fairness as between the person and other persons in a similar position

[42] This consideration as it applies to other employees of the respondent does not arise in this matter. To the extent that this consideration contemplates the circumstances of employees more broadly, the consistent application of principles adopted by Fair Work Australia in similar matters is in line with this consideration and I have sought to adopt that approach in this matter.

CONCLUSIONS

[43] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am on balance persuaded that there are exceptional circumstances as contemplated by s.394(3) of the Act. I also consider that it is appropriate to extend the time for lodgement in this case to the date that this application was filed.

[44] As a result, there is a valid application before Fair Work Australia.

POSTSCRIPT

[45] Subsequent to the determination of the extension of time application, the parties have advised Fair Work Australia that the unfair dismissal matter has been resolved. A notice of discontinuance has been filed and the application is now closed.

COMMISSIONER

Appearances:

A Lifshack on his own behalf.

J Higgins for Dominant (Australia) Pty Ltd T/A Dominant Chemicals.

Hearing details:

2012.

Adelaide:

June 18.

 1   S.397 of the Act permits a matter to be determined without conducting a conference or holding a hearing where there is an absence of factual disputes.

 2   Exhibits A1 and A2.

 3   The respondent provided a written outline of submissions basically confirming that it did not consent to the extension of time.

 4   In the immediate lead up to the hearing of this matter, my office provided written details of the relevant provisions of the Act to each of the parties and at the outset I comprehensively advised them as to the general nature of the extension of time hearing and the considerations arising in the case. Copies of all relevant material associated with the General Protections application were also provided to both parties to ensure a common set of documents.

 5   This is the likely contact point although the applicant was not clear on the precise identity he called.

 6   S.36 of The Acts Interpretation Act 1901.

 7   [2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and Williams C. Although decided in the context of a general protections application, the general approach outlined at pars [12] to [15] is applicable to the present considerations.

 8   Brodie-Hanns v MTV Publishing Ltd, (1995) 67 1R 298 at 300, 31 October 1995, per Marshall J.

 9   Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

 10   Although also determined in a slightly different statutory context the decision in H Kyvelos V Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.

 11   There is no evidence about which modern award or other industrial instrument, if any, applied to the applicant.

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<Price code C, PR525280>