Benny Neloe v TEEG Australia Pty Ltd
[2025] FWC 476
•17 FEBRUARY 2025
| [2025] FWC 476 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Benny Neloe
v
TEEG Australia Pty Ltd
(U2024/14483)
| COMMISSIONER MATHESON | SYDNEY, 17 FEBRUARY 2025 |
Application for an unfair dismissal remedy – filed out of time – circumstances not exceptional – application dismissed.
Mr Benny Neloe (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with TEEG Australia Pty Ltd (Respondent).
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is not contested that the Applicant ‘s dismissal came into effect on 12 November 2024. For the application to be made within 21 days after the dismissal took effect, the application needed to have been lodged by midnight on 3 December 2024. The Applicant’s application was lodged on 4 December 2024. The application has therefore been made more than 21 days after the dismissal took effect.
Submissions and hearing
A hearing was held on 13 February 2025 for the purpose of determining whether to grant an extension of time for the making of the application.
The Commission issued directions to the parties which set out the relevant provisions of s.394 of the FW Act as well as links to the Commission’s resources to assist the parties in preparing their materials before the hearing.
The Applicant filed his submissions and materials on 24 January 2025. The Respondent filed its submissions and materials on 10 February 2025.
The Applicant filed a witness statement and gave evidence on his own behalf during the hearing. Additionally, the Applicant also filed a witness statement of Susan Byrnes, a former colleague and Contact Centre Team Leader for the Respondent.
The Respondent filed a witness statement in respect of Melissa Anastasi-Cefai, the Respondent’s People Partner Lead and Ms Anastasi-Cefai gave evidence during the hearing.
During the hearing, the Respondent sought permission to be represented by a lawyer and in this regard relied on the grounds in s.596(2)(a) and (b). In relation to s.596(2)(a), the Respondent submitted that there were two jurisdictional issues raised in the matter, the first being the question of whether an extension of time should be granted and the second being the question of whether there had been a genuine redundancy under the FW Act. The Respondent submitted that legal complexity was involved in both of those cases which would justify a lawyer assisting the Commission, and that the assistance of a lawyer would help ensure the evidence and submissions being put forward were focused on the relevant principles. In relation to s.596(2)(b), the Respondent submitted that it would be unfair not to allow the Respondent to be represented because while it does have a human resources team, the members of that team are generalists and do not have any experience in relation to litigation or representation before the Commission. The Respondent also noted that Ms Anastasi-Cefai, the instructor in the matter, was also involved in the consultation process concerning the redundancy and was appearing as a witness in the matter. The Applicant did not object to the Respondent being represented by a lawyer.
Complexity in this matter arises in that there is a further jurisdictional objection that has been raised by the Respondent who submitted, in relation to consideration of s.394(3)(e), that the dismissal is a case of genuine redundancy and that this weighs against the granting of an extension of time. It was apparent that the parties have competing views about the circumstances in which a redundancy would be a genuine redundancy pursuant to s.385 of the FW Act and that this gave rise to some legal complexity. In these circumstances, I granted permission for the Respondent to be represented by a lawyer pursuant to s.596(2)(a) of the Act, on the basis that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
At the commencement of the hearing, the Applicant indicated that he had not mentioned in his evidence that he had a medical certificate for the relevant timeframe, and that he had only received a copy over the ‘last couple of days’. The Applicant indicated that he had to reach out to a regional hospital in the provinces of the Philippines, and that the hospital needed to speak to the physician he saw. When I asked the Applicant why he did not make any reference to an illness as the reason for his delay in his statement of evidence, the Applicant indicated that he didn’t really understand the gravity of the time frame and didn’t think to mention it because he didn’t have the medical certificate.
The Applicant did not indicate to the Commission at any stage prior to the hearing that he needed more time to file his evidence after having been provided with the Commission’s directions on 21 January 2025. Up until the day of the hearing, the Applicant had put forward a case in his submissions and evidence based on the reasons for the delay being attributable to reasons other than illness. The Respondent responded to those reasons and evidence in complying with the Commission’s directions and would have suffered prejudice if the Commission allowed evidence concerning an illness that the Applicant said was in existence as early as November 2024 yet was not referred to by the Applicant as a reason for the delay until the commencement of the hearing. In these circumstances, I declined to allow the Applicant to tender the medical certificate.
When may the Commission allow a further period for the making of an application?
Section 394(3) of the FW Act provides that the Commission may allow a further period for the application to be made if it 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.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[2] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[3] In that matter, the Full Bench held the following in relation to “exceptional circumstances”:
“[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.”
I set out my consideration of each of the matters referred to in s.394(3) of the FW Act below.
Section 394(3)(a) – reason for the delay
Short notice and preparing for travel
The Applicant was notified of his dismissal on Thursday 7 November 2024 and the dismissal took effect on Tuesday, 12 November 2024.[4] During the hearing, the Applicant’s evidence was that he most likely worked business hours in the days following the notification of his dismissal.
The Applicant submitted that the primary reason for the late lodgement was that he was given short notice of his dismissal, which coincided with preparations for an overseas trip that he could not cancel.[5] The Applicant submitted that because the notice provided was less than a week in duration, he did not have adequate time to make arrangements for his trip while simultaneously seeking professional advice regarding his dismissal and ‘process the news’.[6] During cross examination the Applicant conceded that he had the option to work his full notice period but said he was steered into finishing as early as possible considering he was taking a flight the following week.
The Applicant also said that during the notice period, he was expected to continue working and this left him with limited time and resources to explore options or seek advice.[7]
During cross examination the Applicant was asked whether he took steps after work or on the weekend in the interim period to get advice about unfair dismissals. The Applicant indicated that he did some basic Google research and that it was “possible” he may have looked at the Commission’s website. It was put to the Applicant that he had some time available before his dismissal took effect to start thinking about and looking into a claim to which his response was to the effect:
· that he did not have time as he was working business hours and most legal representatives or places where he could get advice would have been open during the same time;
· anybody would have taken a few days to get back to him even if he was able to get in contact with someone.
With respect to the period prior to and during the 21-day period, but prior to the Applicant’s overseas travel, the Respondent submitted:[8]
The short notice period was due to the Applicant’s own request for his employment to end prior to his overseas holiday commencing, and to be paid in lieu of the remainder of his notice period.
Based on the Applicant’s leave request prior to his redundancy, the Respondent believes the Applicant was in Australia prior to his overseas holiday for 5 days between 13 and 17 November 2024 after the dismissal took effect.
The Applicant had a further seven days prior to the dismissal taking effect, between 6 and 12 November 2024, where the Applicant was aware that his role had been made redundant and his employment would cease.
The Applicant worked 7.6 hours between the hours of approximately 9:00am and 5:00pm between 6 and 12 November 2024.
There were 5 days during the period from 6 to 17 November 2024 where the Applicant was not required to work.
The Applicant has not provided any evidence to support that there was ‘not adequate time’, including details of what arrangements he was required to make for his overseas trip during that period or evidence to support that those tasks were so overwhelming that he was unable to prepare and lodge his unfair dismissal application.
Legal assistance is not required to file an application for a remedy for unfair dismissal[9] and this is supported by the fact that he was not legally represented when he did file his application on 4 December 2024.
While the Applicant was processing the news of his redundancy, he had to work part of the period and had some tasks to undertake to prepare for his overseas holiday, those matters were not out of the ordinary course, unusual or uncommon and do not provide an acceptable explanation for the delay.
Internet connectivity issues whilst overseas
The Applicant’s evidence during the hearing was that he was on a plane and was outside of the country from 13 November 2024, being the day after his dismissal took effect.
The Applicant submitted that while overseas, he faced significant challenges in accessing reliable internet services as his itinerary included remote areas in Japan and the Philippines, where data connectivity was often unavailable or unstable.[10] The Applicant submitted that these circumstances made it exceedingly difficult to conduct research or seek professional advice on his rights and the process for lodging an unfair dismissal claim.[11]
The Applicant was asked whether he made any attempts during his holiday to complete an unfair dismissal application and the Applicant’s evidence was that:
once he thought he had a case, he tried but was unable to get a reliable or stable connection to find any advice and all he could see was some basic information;
he knew unfair dismissal existed but was not in a place to be able to do extensive research, call free legal advice or help lines, get return calls or book in online meetings.
The Applicant was asked whether there were periods when he was travelling where he was able to access the internet such as international airports to which the Applicant responded “no”. The Applicant gave evidence that:
while airports and some accommodations do provide access, they are often “paywall blocked” or unreliable or limited;
the airports he went to were not major airports and he didn’t bother accessing Wi-Fi while he was at them;
his phone didn’t have e-sim access, and he was not able to get onto an e-sim.
The Applicant did indicate during the hearing that he spent some time asking to use the internet access of others around him for things like transport or directions, but this was not suitable to sit down and complete an application.
During cross examination the Applicant indicated that for most of his holiday, he was travelling in remote areas. The Applicant submitted that some areas of Sydney have connectivity issues and its feasible to say that this can happen abroad in remote areas as well.
The Applicant was asked whether the accommodation he stayed at had a stable enough internet connection for him to do research, to which he indicated that it may have but whatever time he had there was limited so he was more focused on what he needed to do, such as arranging travel, transport, food and banking.
With respect to the part of the 21 day period the Applicant was overseas, the Respondent submitted:[12]
Based on the Applicant’s leave request prior to his redundancy, the Respondent believes the Applicant was overseas on a holiday for 12 days between 18 and 29 November 2024.
The Applicant has not provided any evidence to support that he was overseas, including details of the exact dates of his travel, where he travelled to in Japan and the Philippines, where he stayed during the trip or any attempts by the Applicant to access internet during that period that were unsuccessful.
Due to the lack of evidence, the Commission cannot be satisfied that the areas that the Applicant travelled were ‘where data connectivity was often unavailable or unstable’.
Generally, internet access is available to the public for free at international airports and to guests at hotels or guest accommodation.
The Applicant was aware he would be travelling overseas, as it was a pre-booked holiday and not unexpected travel due to an emergency.
The circumstances of the Applicant’s overseas trip were not out of the ordinary course, unusual, special, or uncommon, but rather the delay in lodging the application was occasioned by the Applicant’s choice not to take any steps while overseas to pursue his unfair dismissal application.
The Applicant’s overseas holiday does not provide an acceptable explanation for the delay.
Research required upon return from overseas
The Applicant said that upon returning to Australia, he prioritised lodging his application immediately and began preparing his claim on the day he arrived back in the country.[13] The Applicant said due to the volume of research and preparation required, he was unable to complete the lodgement process before midnight and as a result, the submission was finalised and lodged in the early hours of the 22nd day.[14]
During cross examination, the Applicant indicated he returned on 2 December 2024 but had a medical condition, it was a slow process, he started to look for advice and couldn’t get any and then began the application, thought it was night of 2 December but it rolled into 3 December. The Applicant was asked whether he made any phone calls or was able to speak to anyone on the phone to which the Applicant indicated he tried, was unable to make immediate contact, filled in online enquiry forms, and did not receive a response until later and was told by two or three people that given the timeframes, they would not be able to help.
With respect to the period after the Applicant returned from his overseas holiday, the Respondent submitted:[15]
Based on the Applicant’s leave request, the Respondent believes the Applicant was back in Australia for five days between 30 November 2024 and 4 December 2024.
The Applicant has not provided any evidence to support when he returned from overseas, or the dates or actions he took to prepare his claim during that period.
On the Applicant’s own evidence, he commenced preparations for his unfair dismissal claim immediately on his return from overseas, however, there is no explanation as to why he was not able to lodge until day 22.
The Applicant’s application involved completion of a three-page online form that included five paragraphs (less than 500 words) and one attachment to support why he believed the dismissal was unfair and the brevity of the application does not support that the ‘volume of research and preparation required’ meant he was not able to lodge his application within the 21-day period.
Consideration
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 3 December 2024. The delay is the period commencing immediately after that time until the application was made on 4 December 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[16]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[17]
The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however, all of the circumstances must be considered.[18] The FW Act does not specify what reason for delay might tell in favour of granting an extension however, decisions of the Commission have referred to an acceptable or reasonable explanation.
While the Applicant only worked four days of his notice period, it is apparent that the reason for this was because he was going to travel overseas and because the Respondent agreed to him finishing up early and being paid notice in lieu. A short notice period is not out of the ordinary course, unusual, special, or uncommon. Unlike the Applicant who, in this matter, had advanced notice of his dismissal, many applicants do not learn of their dismissal until the actual time of their dismissal. In the circumstances of this matter, I am not persuaded that the Applicant did not have time to prepare his unfair dismissal application but rather, it is apparent that since being notified of the termination of his employment and its actual termination, the Applicant prioritised planning for his overseas travel over the making of his application.
Further, I am not persuaded that the Applicant’s travel to Japan and the Philippines prevented him from making an application. The Applicant’s own evidence suggests that he was able to use the internet of others around him for things like transport or directions and that the accommodation he stayed at had some level of connectivity, but because he was time limited, he was more focused on other things such as travel, transport, food and banking arrangements. This suggests that there was an internet connection available at some periods of the Applicant’s travel. While the Applicant said this was not suitable to enable him to sit down and complete an application, I am not persuaded that there was no opportunity for the Applicant to do so at any stage during the Applicant’s travel.
Even if the Applicant was unable to access internet at certain times causing some inconvenience, I am not persuaded that this factor prevented him from taking action to lodge an unfair dismissal application at a time where the Applicant did have access to internet, including before and after his travel. While the Applicant submits that preparing his case required a volume of research, I am not persuaded that this factor contributed to the delay in making the application on time. The Applicant was clearly able to undertake other activities, the application form itself is not a complex document to complete, legal advice is not required to complete it and nor does its content need to be comprehensive. As noted by the then DP Asbury in Martin v Kancee Pty Ltd T/A GT AIR,[19] with reference to the decision of the Full Bench in Arch v Insurance Australia Group Services Pty Limited,[20] even an incomplete application will not necessarily be invalid and such an application made within time is capable of being accepted without the need for the grant of a further period to rectify deficiencies in form or content.
I have considered the reasons for the delay provided by the Applicant, both individually and in combination, together with the evidence turning to those reasons. I do not consider that the reasons, either individually or in combination, provide a credible explanation for the delay. The absence of an acceptable or reasonable explanation weighs against the Applicant’s contention that there are exceptional circumstances.[21]
Section 394(3)(b) – whether the Applicant first became aware of the dismissal after it had taken effect
The Applicant’s materials indicate that he first became aware of the dismissal on 7 November 2024.[22]
The Respondent submitted that:
the Applicant was given clear notification of the dismissal on 8 November 2024 as he was provided with a termination notice on this date;
the notification followed a consultation process for the redundancy of the Applicant’s role that was first notified to the Applicant on 6 November 2024; and
the above factors weigh heavily against the existence of any exceptional circumstances and the exercising of the Commission’s discretion to grant an extension of time.[23]
While the Applicant has submitted that the Respondent ‘did not seem genuine’,[24] the evidence does not establish that there was any confusion or lack of clarity about his employment status which could have contributed to the delay, and he was given advanced notice of his dismissal on 7 November 2024. I consider this to be a factor that weighs against the exercise of the discretion to grant a further period for the application to be made.
Section 394(3)(c) – any action taken by the Applicant to dispute the dismissal
The Applicant submitted that the Respondent ‘did not seem genuine’ in its discussions with him[25] and he ‘did not see much use’ in contesting the decision. The Applicant submitted that he raised other concerns about workload and structure.[26]
The Respondent submitted:
there is no evidence that the Applicant took any formal steps to dispute the dismissal within the 21-day time limit and there is no further evidence to suggest that the Applicant took an active interest in pursuing the application;[27]
the lack of formal action is a factor that weighs against the existence of any exceptional circumstances supporting the Commission’s discretion to grant an extension of time.[28]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[29]
I accept that the Applicant raised concerns about the matters he refers to in his submissions,[30] however, there is no evidence that the Applicant went further than this to dispute his dismissal prior to the making of his late application. In the circumstances of this matter, I consider this to be a neutral factor.
Section 394(3)(d) – prejudice to the employer (including prejudice caused by the delay)
The Applicant submitted that the delay would not cause prejudice as the processing of or reviewing of the claim would not have commenced until the next business day.
The Respondent acknowledges the delay was a short period but submits that it should not lightly be put to the cost and inconvenience of defending an unfair application lodged out of time.[31] The Respondent submitted that the potential prejudice to the Respondent is a factor that weighs against the Commission exercising its discretion to grant an extension of time.[32]
The delay in filing the application is a delay of one day. Whilst I accept that the Respondent is likely to be inconvenienced having to defend a claim brought against it, I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted in the circumstances of this matter where the delay was a very brief one. A lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[33] I consider this a neutral factor in the context of this matter.
Section 394(3)(e) – the merits of the application
At the time of his dismissal the Applicant was employed on a full-time basis in the role of Guest Support Services Manager.
The Applicant gave evidence that the Respondent stated that the decision to dismiss him was due to its call centre operations moving to Manila and that the newly appointed manager in Manila would fulfil his duties.[34] However, the Applicant’s evidence was that the Australian team remains operational, and key managerial and supervisory tasks continue to be performed, suggesting that the role he held has not been entirely replaced or eliminated.[35] In particular, the Applicant gave evidence that: [36]
While his name and title have been removed from the organisational chart, the Australian team still requires supervision and management and these responsibilities are currently being handled by his replacement, who operates as the Call Centre Manager in Manila.
A key part of his role involved facilitating training and hiring processes and these duties are now being carried out by a ‘Supervisor’ in Australia.
At the time of his redundancy, the Manila-based manager had not passed their probationary period and formal and informal complaints had been made against this manager by team members.
Australian-based Team Leaders have been in place since April 2024 when new Philippines-based team leaders were hired.
The Applicant also gave evidence about the Team Leader roles, including that:
the primary function of these roles involves leading a team;
nine weeks after his dismissal an announcement was made that the Team Leader roles would have new position descriptions but this has not yet occurred;
Team Leaders have been able to remain in their roles until February 2025 despite their teams being made redundant in April 2024 and their responsibilities having been significantly reduced; and
there is now an intent to convert Team Leaders from casual to permanent full-time employment.[37] The Applicant says this indicates that there has been no genuine reduction in operational requirements, contradicting the justification for his redundancy.[38]
The Applicant also gave evidence that:
during discussions with the Respondent about his redundancy, no offer was made for him to have a support person present despite other team members in his department being offered this invitation in the past;
while redeployment was mentioned as an option during discussions, it was addressed in a rushed and disinterested manner;
a third-party job agency was suggested during the meeting, and it appeared they may have been engaged before redundancy discussions concluded.[39] The Applicant says this suggests the decision about his redundancy was predetermined.[40]
During the hearing, the Applicant gave evidence that there was a “massive difference” between his meeting and meetings held with others in the past in that the Respondent did not proactively engage with him to find him a new role. The Applicant’s evidence was that when the rest of his team was made redundant, others from the business reached out to them to discuss roles that could be suitable. The Applicant’s evidence was that he was simply told to look online to see whether anything was available.
The Applicant also gave evidence that:[41]
During a previous incident where a team member was being performance managed, he was asked to provide a statement about this as an individual and as a part of this process he disclosed mental health issues related to his role.
Following this disclosure, his involvement in decision making within his department was significantly reduced and he was ultimately made redundant.
The Respondent had consistently communicated a long-term plan for the Applicant to continue to manage both the Australian and Manila teams, but after he disclosed his mental health concerns, this plan was abruptly altered.
After raising concerns about workplace issues and his mental health, he experienced ostracism in decision making processes for the department he was responsible for. The Applicant says this suggests an attempt to marginalise him and potentially pressure him out of his role.
The Applicant gave evidence that the Respondent made errors in calculating his severance pay.[42]
The Applicant also gave evidence about the experience of other employees which he said reflects a pattern of using redundancy as means of exiting employees rather than other appropriate management strategies.[43] Ms Byrnes also gave evidence to this effect.[44]
The Applicant submitted, by way of summary, that the dismissal was unfair because:
while the Respondent claimed his ‘Manager’ role was no longer required, it has two ‘Team Leader’ roles which primarily involve leading a team, despite there being no team to lead;
the work he was doing still exists as two Team Leaders employed in Australia continue to complete tasks that would have fallen within his responsibilities;
the process leading to his redundancy involved bias and pre-determined outcomes;
his redundancy followed the Applicant disclosing mental health concerns, raising workplace issues and suggesting potential retaliation and adverse action against him;
significant errors in the calculation of severance pay impacted his decision making during the redundancy process;
the Respondent has a pattern of using redundancies as a means of exiting employees instead of addressing performance issues or operational changes through proper management.[45]
Ms Anastasi-Cefai gave evidence that:
The Applicant’s full-time role[46] (Role) was responsible for managing daily call centre operations, communicating with other relevant departments regarding enquiries, ensuring the mentorship and leadership of the contact centre team, and introducing new initiatives to improve the team’s efficiencies, goals and KPIs.[47]
In June 2024, the Sydney based Contact Centre relocated to Manila for operational reasons.[48]
The Applicant continued in the Role following the restructure to support the transition and upon the conclusion of the transition, a review of the tasks and responsibilities of the Sydney team and the Role was carried out in October 2024.[49]
It was decided that the capacity requirements of the Role had been significantly reduced due to management responsibilities transitioning to Manila and it was determined that the remaining duties of the Role would be redistributed to other existing roles.[50]
The Respondent consulted with the Applicant about the Role redundancy during a meeting on 6 November 2024 and was provided with a letter which stated: [51]
othat the majority of the managerial workload had transferred to Manila;
othat the transition of workload with the establishment of the Hub in Manila had led to the significant reduction of tasks to be performed from the North Sydney office;
othat as a result, the role of Contract Centre Manager was no longer required, and any remaining responsibilities would be dissolved or redistributed;
othat the Respondent’s employment as Contact Centre Manager would terminate by reason of redundancy, effective 12 December 2024;
o“Please take the time to review any other internal opportunities that may be aligned to your skillset and experience. These can be found in Careers on Squad Central, and any interest you have can be discussed with myself for (sic) Mel Cefai, People Partner Lead”.
Prior to the redundancy, the Applicant had applied for annual leave for the period between 18 and 29 November 2024.[52]
On 7 November 2024, a second meeting was held with the Applicant, in which Ms Anastasi-Cefai was also present, during which the Applicant’s planned leave for an overseas holiday and his notice period was discussed.[53]
The Applicant requested to finish up employment before his holiday commenced which was before his five week notice period ended, and it was agreed during the meeting on 7 November 2024, that the Applicant would work four days of his notice period prior to his overseas holiday and be paid 16 days in lieu of notice.[54]
The Role no longer exists in the Respondent’s operational structure.[55]
The Respondent submitted that the Applicant’s evidence includes matters that appear to:
misunderstand the legal test for what it means when a person’s job is no longer required to be performed by anyone because of changes in the employer’s operational requirements (e.g. he raises issue with some of his duties surviving and the commercial rationale of the Respondent’s decision); or
not be relevant to the Commission’s consideration of whether his dismissal was a genuine redundancy under s 389 of the FW Act (e.g. the disclosure of mental health issues, communications about severance pay and the employment of other employees).[56]
The Respondent submits that the Applicant’s dismissal was a genuine redundancy and, in this regard, made the following submissions:[57]
Pursuant to s.389(1)(a), the Applicant’s role no longer exists in the Respondent’s structure due to changes in operational requirements following a decision in June 2024 to move the Call Centre to Manila, and there were other employees within the Contact Centre that were sufficient to perform duties performed by the Applicant.
The test is whether the Applicant’s Role has survived the restructure rather than whether the duties have been performed in some form,[58] and an employee may still be genuinely made redundant where there are aspects of the employee’s duties still being performed by other employees.[59]
Pursuant to s.389(1)(b), the Respondent was not obligated to consult with the Applicant under an applicable workplace instrument but notwithstanding this, the Respondent consulted with the Applicant, including by discussing with him on 6 and 8 November 2024, the changes and their likely effect on his employment, and providing him with a letter with that information on 6 November.
Pursuant to s.389(2), there were no suitable roles identified by the Respondent for the Applicant to be reasonably redeployed but notwithstanding this, the Respondent provided the Applicant with details of all vacancies for him to consider whether he was interested in redeployment to any roles during his notice period.
The Applicant did not request redeployment or raise any concerns about redeployment, rather he agreed to complete his notice period early prior to his overseas holiday.
On a prima facie basis, the Applicant’s evidence does not include any matters that would support a finding that a dismissal was not a genuine redundancy within the meaning of s389 of the FW Act. and this factor weighs against the Commission exercising its discretion to grant an extension of time.
The Respondent ultimately submitted that:
this factor weights against the Commission exercising its discretion to grant an extension of time; or
in the alternative, in circumstances where the Commission is unable to reasonably make a firm or detailed assessment of the merits of the application, the Respondent submits that this factor is neutral.
Section 385(d) of the FW Act has the effect that the Commission cannot be satisfied that a person has been unfairly dismissed if the dismissal was a case of genuine redundancy. Section 389 of the FW Act provides:
(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.
During the hearing the Applicant conceded that the role he held for the Respondent no longer existed, but it is apparent that there are disputed facts in this matter about the reasons for this and the Respondent’s approach to potential redeployment which may be relevant to the consideration of whether it was reasonable to redeploy him to another role. These matters could only be resolved via evidence at a hearing. In these circumstances, I consider the merits of the application to be a neutral factor in my determination of whether the discretion to grant a further period to make the application should be exercised.
Section 394(3)(f) – fairness between the Applicant and other persons in a similar position
In relation to the consideration of fairness between the Applicant and other persons concerned, the Applicant submitted that his situation is “less fair” because there was a difference in the process the Respondent adopted for his role compared to other roles in his department.[60] The Applicant also submitted that minimum time was given to him to seek legal advice and representation which was most likely intended to weaken his claim.[61]
The Respondent noted that in Perry v Rio Tinto Shopping Pty Ltd,[62] the Full Bench considered this criterion and said:
‘Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’
The Respondent identified that:[63]
In Lackas v PJL Plumbing and Roofing Services,[64] the Commission refused to grant an extension of time for an application that was three weeks late in circumstances where the reason for the delay was a pre-planned overseas holiday.
In Underwood, Wayne v Terra Firma Pty Ltd T/A Terra Firma Business Consulting,[65] the Commission refused to grant an extension of time for an application that was 5 hours late where the reason for the delay was a lack of legal advice and understanding of the process, and stress and anxiety.
The Respondent submitted that:
the cases referred to above illustrate circumstances in which a person in a similar position in terms of reasons and length of delay, were not granted an extension of time to lodge their applications;
in fairness and as a matter of consistency, the circumstances of the Applicant are not exceptional and do not justify an extension of time, including for one day as sought in the current circumstances.[66]
I have considered the cases put forward by the Respondent and note these matters would appear to have a different factual basis. While the Applicant submits difference in the process the Respondent adopted for his Role compared to other roles in his department, the circumstances surrounding these other roles are unclear and the Applicant did not suggest that matters involving these other roles are currently before or have been decided by the Commission. In these circumstances, I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. I determine this factor a neutral consideration in determining whether to grant an extension of time.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings and weighing each of the matters I am required to consider.
Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[67] Exceptional circumstances may 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 can be considered exceptional.[68]
I am not satisfied that the above matters considered individually point towards there being any exceptional circumstances. Further, I am not satisfied that there are exceptional circumstances after considering the above matters collectively.
Conclusion
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
As I am not satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
Order
I order that the Applicant’s application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
Mr B Neloe, Applicant
Ms M Anastasi-Cefai, Respondent
Ms J Phillips, Solicitor for the Respondent
Hearing details:
2025.
February 13.
Sydney (by Microsoft Teams)
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21].
[3] [2011] FWAFB 975, [13].
[4] Applicant’s Statement of Evidence; ‘Applicant’s Outline of argument: Extension of time’, response to questions 2 and 3.
[5] ‘Applicant’s Outline of argument: Extension of time’, response to question 4.
[6] Applicant’s Outline of argument: Extension of time’, response to question 4.
[7] Applicant’s Outline of argument: Extension of time’, response to question 4.
[8] Respondent’s Submissions at [16].
[9] With reference to Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWC 1387 at [14[.
[10] Applicant’s Outline of argument: Extension of time’, response to question 4.
[11] Applicant’s Outline of argument: Extension of time’, response to question 4.
[12] Respondent’s Submissions at [17].
[13] Applicant’s Outline of argument: Extension of time’, response to question 4.
[14] Applicant’s Outline of argument: Extension of time’, response to question 4.
[15] Respondent’s Submissions at [18].
[16] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[17] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[18] Ibid.
[19] [2020] FWC 1737, [27].
[20] [2018] FWCFB 975, [39]-[41].
[21] Respondent’s Submissions at [19].
[22] Form F2 Application; Applicant’s Outline of argument: Extension of time’, response to question 1.
[23] Respondent’s Submissions at [20] – [22].
[24] ‘Applicant’s Outline of argument: Extension of time’, response to question 5.
[25] ‘Applicant’s Outline of argument: Extension of time’, response to question 5.
[26] Applicant’s Outline of argument: Extension of time’, response to question 5.
[27] Respondent’s Submissions at [23].
[28] Respondent’s Submissions at [24].
[29] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[30] Applicant’s Outline of argument: Extension of time’, response to question 5.
[31] Respondent’s Submissions at [25].
[32] Respondent’s Submissions at [26].
[33] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
[34] Applicant’s Statement of Evidence.
[35] Applicant’s Statement of Evidence.
[36] Applicant’s Statement of Evidence.
[37] Applicant’s Statement of Evidence.
[38] Applicant’s Statement of Evidence.
[39] Applicant’s Statement of Evidence.
[40] Applicant’s Statement of Evidence.
[41] Applicant’s Statement of Evidence.
[42] Applicant’s Statement of Evidence.
[43] Applicant’s Statement of Evidence.
[44] Byrnes Statement of Evidence.
[45] Applicant’s Outline of argument: Extension of time’, response to question 7.
[46] Anastasi-Cefai Statement at [11].
[47] Anastasi-Cefai Statement at [12].
[48] Anastasi-Cefai Statement at [17].
[49] Anastasi-Cefai Statement at [16].
[50] Anastasi-Cefai Statement at [17].
[51] Anastasi-Cefai Statement at [18], Annexure A.
[52] Anastasi-Cefai Statement at [19], Annexure B.
[53] Anastasi-Cefai Statement at [20].
[54] Anastasi-Cefai Statement at [20].
[55] Anastasi-Cefai Statement at [20].
[56] Respondent’s Submissions at [32].
[57] Respondent’s Submissions at [33].
[58] With reference to Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt
[59] With reference to Dibb v Commissioner of Taxation [2004] FCAFC 126 at [43] – [44].
[60] Applicant’s Outline of argument: Extension of time’, response to question 8.
[61] Applicant’s Outline of argument: Extension of time’, response to question 8.
[62] [2016] FWCFB 6963 at [41].
[63] Respondent’s Submissions at [37] – [38].
[64] [2015] FWC 1195.
[65] [2015] FWC 187.
[66] Respondent’s Submissions at [39].
[67] Ibid, [13].
[68] Ibid.
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