Ashlee Clarke v Lionel Samson Sadleirs Group

[2015] FWC 5371

[2015] FWC 5371[Note: An appeal pursuant to s.604 (C2015/6011) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashlee Clarke
v
Lionel Samson Sadleirs Group
(U2015/5266)

COMMISSIONER LEE ADELAIDE, 19 AUGUST 2015

Application for relief from unfair dismissal - extension of time - s394 Fair Work Act 2009.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Ashlee Clarke (the Applicant) claims that she was unfairly dismissed from her employment with Lionel Samson Sadleirs Group (the Respondent).

[2] The application was made by the Applicant on 6 May 2015. The Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy, lodged by the Respondent on 25 May 2015, objected to the application on two grounds. Firstly that the application had been made outside the statutory time limit and secondly that the dismissal was a case of genuine redundancy.

[3] The Applicant commenced her employment with the Respondent on 7 June 2013. It is not in dispute that the Applicant was notified that she was likely to be made redundant on 3 March 2015 and then actually made redundant the following day, 4 March 2015.

[4] The matter was allocated to me for jurisdictional determination on the question of whether to allow a further period of time for the lodging of the application pursuant to s.394(3) of the Act. . The matter was listed for Jurisdictional Conference/Hearing (Extension of Time) on 30 June 2015 in Melbourne with video link to Perth. I granted permission for the Applicant to be represented by Dr Craig Edwards of Delta Legal as I was satisfied there was some complexity in the matter which satisfied me regarding the requirements of s.596(1)(a). Mr Phil Scott, Human Resources Manager, appeared on behalf of the Respondent

The law to be applied

[5] The Act provides that;

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application 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).

(3) The 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.”

[6] As the dismissal took effect on 4 March 2015 the application should have been made on or before 25 March 2015. The application was made on 6 May 2015 and is therefore 42 days out of time. Therefore the matter can only proceed if a further period under section 394(3) of the Act is allowed.

Evidence

[7] The Applicant commenced full time employment with the Respondent on 27 August 2012. On 6 August 2014 she was promoted to the position of Contract Superintendent. She continued to be employed in that position until her employment was terminated.

[8] It is clear that the Applicant received a letter of termination, signed by Mr Holden, Terminal Manager on 4 March 2013. 1 The letter is headed “Termination of your employment by reason of redundancy”. The letter refers to a formal review of the business and its structure leading to recommendations to consolidate the business and that this includes reducing the size of the workforce and that the Applicant’s “…position of Contract Superintendent is no longer sustainable in our current circumstances”. The letter confirms that they have carefully consulted with the employee about all possible options that might be available but that as there are no opportunities in the business and no other options available, “…this means your employment will terminate”. The letter makes clear that the Applicant’s employment ended that day, 4 March 2015 and advises that she would be paid 4 weeks’ pay in lieu of notice and six weeks redundancy pay as well as her accrued entitlements. The Applicant agreed that she had an opportunity to consider other options for employment during the consultation phase.2 The Applicant confirmed that she did not express an interest in any of the other available positions.

[9] It is clear that the Applicant considered her redundancy at the time that it occurred as genuine. There is no evidence that the Applicant disputed the dismissal at the time that occurred. The evidence of the Applicant in her statement was that at the time of the termination:

• The Applicant had no knowledge of any circumstances that would indicate that the termination was not a genuine redundancy;



• The Applicant had never received any warnings, written or otherwise, of inadequate performance, or any other basis on which her employment might be terminated, aside from a genuine redundancy



• The Applicant had been promoted twice in 3 years and she asserted that she was the only person whose ordinary responsibilities included management of contracts with all of the Respondent’s 4 largest clients, and so she believed that she was in good standing in relation to her employment with the Respondent. 3

[10] However, the Applicant conceded on cross examination that she had in fact received two warnings while employed by the Respondent, one verbal and one written. The Applicant would not, however, concede that these were warnings related to her performance stating, “They’re behaviour, they’re not - like my actual job”. 4 In any case, it was not suggested by either party that these warnings were linked in any way to the dismissal. In fact it was the Respondent who raised their existence as they disputed the factual claim of the Applicant that she had never received any warnings.

[11] On 25 April 2015, approximately 7 weeks after the termination of employment, the Applicant saw an advertisement on the “Seek” website for the position of “Contract Manager” with the Respondent (referred to hereafter as the advertised position). The Applicant believes that the advertised position is substantively the same as the position which she held before she was terminated. In the circumstances the Applicant submits it was not possible for her to have gained information showing that the redundancy may not have been genuine prior to 25 April 2015.

[12] The Applicant’s evidence is that, subsequent to seeing the advertisement on 25 April, she sought legal advice and made inquiries of the Fair Work Ombudsman. The Applicant did not provide any evidence as to when she commenced those inquiries other than to state that she sought legal advice, “….with no luck” 5 and that an administrator in a legal firm advised her to ring the Fair Work Ombudsman. These inquiries took place, “… over the week” before she lodged her application. I note that 25 April 2015 was ANZAC Day, that 26 April 2015 was a Sunday and that 27 April 2015was a public holiday in Western Australia. Therefore, the Applicant could not have realistically made these inquiries until Tuesday 28 April 2015. However, she lodged her application a further 8 days after 28 April 2015, on 6 May at 5.48pm. The Applicant’s affidavit asserts that she had only five working days to make her inquiries prior to lodging the application. I note that as a matter of fact there are 6 working days in the period to which the Applicant refers, not including the actual day of 6 May 2015.

[13] The Respondent submits that the Applicant’s position cannot be sustained for two key reasons. Firstly, that at the time the Applicant was made redundant, the Respondent did not know that they were going to win a significant contract with Chevron Australia and that it was the winning of that contract that gave rise to the need for the creation of the new Contract Coordinator position, the advertised position. Secondly, the Respondent asserts that the position description for the Applicant’s position of Contract Superintendent and the new Contract Co-ordinator position are vastly different and that the qualifications, skills and knowledge of the oil and gas industry called for in the new role are significantly different to those required in the Applicant’s previous role.

[14] The evidence of Mr Brown, General Manager of the Respondent was, in summary:

• In February 2015 meetings of the leadership team of the Respondent discussed cost cutting and revenue generation strategies due to pressures from a downturn in business.



• As a result of those meetings it was decided to reduce the headcount and the Applicant’s position was identified as surplus. The decision to make the Applicant’s position redundant was additional to other decisions to cancel contractor and labour hire arrangements and casual employees.



• The company began advertising for positions related to a new contract on 25 April 2015.



• That on 14 May 2015 the company was advised it was successful in its bid for a contract with Chevron and that that contract commenced on 18 May 2015. However, the actual works did not commence until “…later in June”. 6



• At the time the Applicant’s position was made redundant, Mr Brown did not know they would be awarded the new contract with Chevron.



• That the current financial circumstances at the company are that they are on target for a financial year loss of $3 million.

[15] Mr Brown asserted that the Applicant does not have the qualifications or skills and experience for the new role and that the new position is not the same position as the position that was made redundant. However, under cross examination, Mr. Brown conceded that the Applicant’s position and the advertised position were close to identical. That concession is reflected in the following exchange:

“DR EDWARDS: So the position that you were seeking later on, regardless of any differences in the position description given on 5 May is identical then to the position in duties and responsibilities and qualifications to the position that the applicant held prior to being dismissed.  Isn’t that right?

MR BROWN: I wouldn't say identical, no.  Close.” 7

[16] Mr. Holden gave evidence that was in summary:

• He was involved in the meetings to discuss cost cutting and revenue generation



• The Applicant’s position was responsible for three main contracts and one of those contracts went into administration and ended.



• He was party to the decision to identify the applicants’ position as surplus and be made redundant.



• The duties that the applicant was performing were to be absorbed by the Contract Manager.

Consideration - exceptional circumstances

[17] Section 394(3) of the Act provides that the Fair Work Commission may allow a further period for the application to be made if the Commission is satisfied there are exceptional circumstances taking into account the criteria set out in s.394(3)(a) - (f) of the Act.

[18] The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd⁸, where the Full Bench stated that;

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.

...

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[19] While Cheyne Leanne Nulty v Blue Star Group Pty Ltd considered the term exceptional circumstances in relation to section 365 of the Act, the discussion is applicable to the term in section 394. I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

[20] I will now deal with each criterion of section 394(3) of the Act in turn.

(a) the reason for the delay;

[21] The reason advanced for the delay is simply that the Applicant had no reason to question the genuineness of her dismissal until 25 April 2015 when she became aware of the advertised position. This explains the entirety of the delay, at least up until the 28 April which is the first business day in Western Australia and the first opportunity the Applicant could make telephone or in person inquiries after the Applicant saw the advertisement and formed the view that her redundancy was not genuine. I note that the Applicant could have made on line inquiries to the Fair Work Commission website and indeed could have lodged an unfair dismissal application online at any time, including April 25.

[22] In a decision dealing with similar circumstances to those here, Lucy Aristodemou v Sunbeam Corporation Limited T/A Sunbeam Australia 9Commissioner Wilson took an approach reflected in the following paragraph in his decision:

“[19] In context, the reason for [the Applicant’s] delay in making her application for an unfair dismissal remedy may be a factor that resolved in her favour in the event the substantive merits of her application are also in her favour.” 10

[23] In other words, whether the Applicant (in becoming aware of facts that give rise to a concern that a redundancy is not genuine, sometime after the redundancy has occurred) could be considered to have an acceptable reason for the delay, is contingent on whether there is substantive merit to the claim that the redundancy is not a genuine redundancy. I agree with and will adopt that approach here.

[24] However, I note that there are in fact two periods of delay. While the discovery of the advertisement for the position explains the delay up until 28 April 2015, there is then the further delay in lodging the application from 28 April 2015 to 6 May 2015. The reason given by the Applicant for that further delay is set out above. While I think it unreasonable to expect that the Applicant would file an application on the very next working day after seeing the advertisement, her evidence as to why it took more than another week to file was vague and unconvincing. A phone call to a legal office and then the Fair Work Ombudsman could have been undertaken in a day or two, absent any other circumstances preventing that occurring. I do not agree with the submission of the Applicant’s representative that the fair way of proceeding in this matter is to allow a similar period of 21 days from the time the Applicant first became aware of the advertisement. 11 An employee needs to provide a credible reason for the whole of the period that the application was delayed.12 I am not satisfied that there is a credible reason for the further delay in filing the application from 29April until 6 May 2015.

(b) whether the person first became aware of the dismissal after it had taken effect

[25] It is not in dispute the Applicant became aware of the dismissal upon receipt of the letter of termination on 4 March 2015. This is a neutral consideration.

(c) any action taken by the person to dispute the dismissal;

[26] It is clear that the Applicant took no action to dispute the dismissal on the day she received the letter of termination up until the day she saw the advertised position on 25 April 2015. This is consistent with her evidence that at the time she considered the dismissal to be genuine. She lodged her application on 6 May 2015. This is a neutral consideration.

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

[27] The Respondent did not provide any evidence to suggest that there was prejudice to them as a result of the delay. However the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. This is a neutral consideration.

(e) the merits of the application

[28] The merits of the case are clearly linked to whether or not there was a genuine redundancy. A dismissal is a case of genuine redundancy when the employer no longer requires a person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise and the employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.

[29] On the question of consultation obligations, there were no submissions made or evidence as to whether the Applicant was or was not covered by a modern award or enterprise agreement and no reference was made to any requirement to consult. The evidence is that there was consultation but it took place in what I consider a very short period of time. However, the Applicants’ evidence is that she was consulted and that she did not raise any concerns or possible alternatives. Her legal representative made no submissions suggesting that the redundancy was not genuine because of a failure to properly observe an obligation to consult.

[30] Therefore the claim that the redundancy is not genuine appears to turn on whether or not it would be found on the evidence that the position that the Applicant held was not required to be done by anyone or whether it would have been reasonable in all the circumstances to redeploy the Applicant to the new position.
[31] In this case, the two positions are, on the evidence of the General Manager, not identical but are close to identical. I note that submissions were made that the advertised position needed to have knowledge of the oil and gas industry. This submission is undermined by the fact that there is simply no mention of that requirement in the advertisement or the position description.

[32] However, it is apparent from the position description 13 that the advertised position is a dedicated position related to the newly acquired Chevron contract. The first dot point of the position description reads:

“Manage technical and commercial resources to meet the strategic deliverables and objectives of the Chevron Linehaul Contract “the contract””

[33] In that respect, at least, it appears to be a new and different position. However, given the significant similarities between the two positions, it is likely that it would have been reasonable in all of the circumstances to redeploy the Applicant to the new position. A failure to do so would mean that the redundancy was not genuine. However, the evidence, particularly from Mr. Brown, that he was unaware that the Chevron contract was secured until sometime after the dismissal, does not support a finding that the position existed at the time the Applicant was made redundant.

[34] Evidence on the merits is rarely called at an extension of time hearing. 14 This matter is one of those rare occasions where a significant amount of evidence was led on the merits, given its importance in this matter to the consideration of whether there are exceptional circumstances. However, the matter was not heard in full and I am not in a position to make findings on contested facts. Having considered the evidence before me, I believe the case does have some considerable merit. However, I do not think for the reasons stated that the claim is so meritorious such that it would persuade me to accept an explanation for delay that is otherwise insufficient.15

(f) fairness as between the person and other persons in a similar position.

[35] Commissioner Wilson when considering this factor in Lucy Aristodemou v Sunbeam Corporation Limited T/A Sunbeam Australia 16 made the following observation:

“[38] Broadly speaking, it can be expected that the Commission may be disposed to favourably consider an extension of time in the circumstances of a person finding out sometime after the date that they were dismissed for reasons of redundancy, that the reasons for their dismissal may be questionable. However coupled with that proposition would be an expectation that the merits of the person's case had significant strength. It would be unlikely that the Commission automatically grant an extension of time to a person questioning the reasons for that redundancy merely because they wished to do so.” 17

[36] I agree with and have adopted Commissioner Wilson’s approach in this matter..

Conclusion

[37] As the dismissal took effect on 4 March 2015, the application should have been lodged on 25 March to be held to be lodged within time. The application was lodged on the 6 May 2015. I am satisfied that the reason for the delay, at least up until the 28April 2015 is entirely explained by the Applicant assuming that her position was genuinely redundant up until that time. I have considered whether this is an acceptable reason for the delay against an examination of the merits of the case. For the reasons stated above, I am not satisfied that this weighs in favour of granting an extension of time. There was also a further period of delay of 7 days from when the Applicant could reasonably have lodged an application to when she actually lodged the application. I am not satisfied the reasons for that delay are acceptable reasons. Overall, I am not satisfied there is an acceptable reason for the delay. This weighs against allowing an additional period for the application to be made.

[38] The factors considering when the Applicant became aware of her dismissal, action taken to dispute her dismissal and prejudice to the employer are all neutral considerations.

[39] Taking into account all of the relevant factors, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for the making of an application for an unfair dismissal remedy. The application is dismissed. An order 18 will issue concurrently.

COMMISSIONER

Appearances:

C Edwards was granted permission to appear for the Applicant

P Scott appeared on behalf of the Respondent

Hearing details:

2015

Melbourne:

June 30

 1   Annexure AC1 to Affidavit of Ms A Clarke, sworn 29 June 2015

 2   PN164

 3   Affidavit of Ms A Clarke, sworn 29 June 2015, [7]

 4   PN220

 5   PN145

 6   PN345

 7   PN465

8 [2011] FWAFB 975

 9   [2014] FWC 8384

 10   Lucy Aristodemou v Sunbeam Corporation Limited T/A Sunbeam Australia[2014] FWC 8384, [19]

 11   PN506

 12   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 13   Exhibit S3

 14   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14].

 15   Haining v Drake and Others (1998) 87 FCR 248, 250.

 16   [2014] FWC 8384

 17   Lucy Aristodemou v Sunbeam Corporation Limited T/A Sunbeam Australia[2014] FWC 8384, [38]

 18   PR570964

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