Ashley Townsend v Grant Mawer Engineering

[2016] FWC 2183

[2016] FWC 2183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashley Townsend
v
Grant Mawer Engineering
(U2016/5226)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Ashley Townsend alleged the termination of his employment on 16 February 2016 was unfair.

[2] His unfair dismissal application lodged on 9 March 2016 was not made within 21 days of the date of the dismissal.

[3] Neither Mr Townsend or Grant Mawer Engineering complied with the directions issued by the Commission to file material in relation to the application for an extension of time.

[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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."
[Endnotes not reproduced]

The reason for the delay: s.394(3)(a)

[6] In his application form, Mr Townsend said that he had only just become aware that others had been employed at the time he was told that there was not enough work for him. He said someone had been employed a week before his dismissal. Mr Townsend was aware that this person was employed when he was told his employment was terminated. He said he thought he was finishing up when the job finished. He said he had not lodged an application because he was not aware that there was a 21day time limit.

[7] At the hearing he said another person was employed from 7 March 2016.

[8] In the employer response Mr Mawer said that Mr Townsend and other casual employees were dismissed at the same time. It submitted that it had a reduction in available work due to the lack of demand from its main customer due to the power shortages being faced by Tasmania at this time. Mr Mawer denied employing any new employees.

[9] At the hearing Mr Mawer said that he had employed another causal 3-4 weeks prior to dismissing Mr Townsend. He said his decision about who to dismiss was based on his assessment of his business needs. He accepted that another casual employee had been employed on 7 March 2016 but he said that was because he had obtained additional work and that he had also reemployed the other casuals he had dismissed. Mr Mawer said he would be willing to reemploy Mr Townsend now that work had picked up.

[10] Mr Townsend’s lack of knowledge of this right to bring an unfair dismissal claim is not unusual. He was aware that another employee had been recently engaged when he was dismissed. If he thought that his selection for dismissal was unfair, he should have taken action immediately or at least prior to the 21 day time limit.

[11] Mr Townsend had not provided a reasonable explanation for the delay. This weighs against a finding that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect: s.394(3)(b)

[12] Mr Townsend was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal: s.394(3)(c)

[13] Mr Townsend did not take any action to dispute his dismissal. Given his acceptance that the reasons relied upon were genuine, this is unsurprising. This criterion is a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay): s.394(3)(d)

[14] There was no evidence of any prejudice to the employer. This weighs in favour of a finding that there are exceptional circumstances.

The merits of the application: s.394(3)(e)

[15] There is no dispute that there has been a reduction in demand as a result of the reduction in power in Tasmania. There is no dispute that this has led to a reduction in work. Mr Townsend does not deny that he along with other casual employees were let go. Even if there was one additional employee engaged in the week prior to this occurring, Mr Mawer was entitled to determine which of the casual employees he retained or dismissed. The mere fact that Mr Townsend had worked for a longer period of time is not determinative of who should be retained. Mr Mawer gave evidence that on 16 February 2016 an additional furnace was placed on low load and this caused him to make the decision to let the casuals go.

[16] Mr Mawer accepted that the circumstances changed quite quickly and that by 7 March 2016 he had more work again and this caused him to engage a casual employee and reemploy some of the casuals he had let go. He advised that he would be willing to reemploy Mr Townsend.

[17] I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested however, on the material before me, it does not appear that Mr Townsend’s case is strong. I consider this criterion to be neutral.

Fairness as between the person and other persons in a similar position: s.394(3)(f)

[18] There were no submissions that there were any persons in a similar position.

Conclusion

[19] I am not satisfied that there are exceptional circumstances. A lack of prejudice to the employer is not of itself sufficient to find that there are exceptional circumstances. Accordingly Mr Townsend’s application for an extension of time is dismissed and his application for an unfair dismissal remedy is also dismissed.

DEPUTY PRESIDENT

Appearances:

A. Townsend on his own behalf.

G. Mawer for the Respondent.

Hearing details:

2016.

Melbourne (by telephone):

April 6.

 1   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code A, PR578800>