Christopher Basley v Rush Group Pty Ltd T/A the Rush Group

[2015] FWC 6274

[2015] FWC 6274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Basley
v
Rush Group Pty Ltd T/A The Rush Group
(U2015/10907)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Christopher Basley alleged that the termination of his employment by Rush Group Pty Ltd on 23 June 2015 was unfair.

[2] His unfair dismissal application lodged on 12 August 2015 was not made within 21 days of the date of the dismissal.

[3] 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.

[4] 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]

(a) the reason for the delay;

[5] Mr Basley’s letter of termination handed to him on 23 June 2015 advised that a decision to make his role redundant had been made following a review of the business structure following the acquisition of Phoenix Shutdown Services in Perth. He was advised that the company no longer required the role of a Branch Manager to be performed in its Perth Office. It advised him that it had considered alternative positions and as there were no suitable positions his employment was terminated.

[6] Mr Basley gave evidence that he told the then CEO, on the day his employment ended, that it was not a true redundancy as the acquisition had not gone through. He also gave evidence that there was no consultation with him about the redundancy in accordance with Rush Group’s obligations under a modern award, possibly the Clerks - Private Sector Award 2010. He further gave evidence that he may have considered redeployment to a lower paid position if this had been offered to him.

[7] It was his view that his redundancy was manufactured but he did not lodge an application then because he thought it would be difficult to prove. Mr Basley then had a discussion with the owner of Phoenix Shutdown Services at the end of July who advised him that Rush Group had not acquired Phoenix Shutdown Services. He did not then lodge an unfair dismissal claim. Mr Basley gave evidence that a colleague had advised him on 11 August 2015 that she had been interviewed for the position of Recruitment Manager but the duties were the same as his duties as Branch Manager. He also gave evidence that there was a new staff member, a Senior Consultant in the Perth Office and while he had not have details about this person’s position, he alleged that Rush Group were hiding the fact that this employee was performing his functions.

[8] It is clear from his own evidence that Mr Basley was of the view that his redundancy was not a genuine redundancy at the time it occurred. He delayed lodging his application because he did not consider he had sufficient evidence to prove it was a sham. He also gave evidence that after his dismissal he was depressed and was not able to do much about it for some weeks in part because he was looking for other employment.

[9] Mr Basley’s complaint about his redundancy was not limited to a complaint about the genuineness of the decision. He complains about lack of consultation and failure to consider redeployment opportunities. If he was correct about these matters, this would have been enough to defeat an objection based on genuine redundancy. Even if I accepted that he lacked the evidence to challenge successfully the reasons for the redundancy, Mr Basley was aware of these other matters when he was dismissed and could have challenged his dismissal on that basis without further evidence.

[10] However I do not accept that Mr Basley has provided a reasonable explanation for the delay based on lack of evidence. Mr Basley clearly formed the view that the redundancy was a sham when it occurred. He knew the grounds relied upon by the then CEO were untrue as the acquisition had not gone through. That he chose not to pursue it because he thought it might be difficult to prove is one regularly encountered by employees who seek to challenge the operational reasons relied upon by their employer. That the acquisition did not occur was confirmed on 31 July 2015 but still Mr Basley did not lodge an application.

[11] While Mr Basley states that he was depressed by his dismissal, no medical evidence was called to support this and it is not unusual for employees to be shocked and distressed at the termination of their employment.

[12] In assessing whether Mr Basley’s explanation for the delay was reasonable is intertwined with an assessment even on a preliminary basis of the merits. This is because an employee who accepts an employer’s explanation for termination may latter find that the explanation was not true at the time it was given. In this case, for reasons set out, below I am unable to conclude that Mr Basley’s application lacks merit. However my reasons for making this finding are primarily based on things that were known to Mr Basley at the time of his dismissal or at least by the end of July.

[13] That Mr Basley lacked evidence to prove his redundancy was a sham is not unusual. Employees often lack direct knowledge of the operational reasons relied upon by the employer. However in objecting to an unfair dismissal on the grounds that it was a genuine redundancy the employer is required to present to the Commission evidence to support the objection. Mr Basley would have had an opportunity to consider that evidence and challenge it at a hearing.

[14] I am therefore not satisfied that Mr Basley had a reasonable explanation for the whole of the delay in lodging his application. This weighs against a finding that there are exceptional circumstances.

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

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

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

[16] Mr Basley told the then CEO that the redundancy was a sham. Apart from this, he took no further action to dispute the dismissal. I consider that this criterion is a neutral consideration.

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

[17] No evidence was called by Rush Group of any prejudice that it would suffer. It submitted that the lack of prejudice alone is not sufficient to find exceptional circumstances and I agree. However I consider that it weighs in favour of such a finding.

(e) the merits of the application;

[18] Ms Nicola Metcalfe gave evidence that she provided her resume to Rush Group. She accepted that she was told by Ms Bronwyn Parbery around that time, namely 25 June 2015, that there was currently no suitable position for her. Ms Metcalfe gave evidence that she was subsequently interviewed for the Manager’s Position.
[19] Mr Goralski gave evidence that in July 2015 he undertook a recruitment process to hire a Senior Consultant.

[20] Mr Goralski gave evidence that Ms Metcalfe was interviewed for the position of Senior Consultant and not State Manager. Ms Metcalfe was not offered the position. It was his evidence that the two positions are fundamentally different and the Senior Consultant position was paid significantly less.

[21] Given this process commenced in July, it is difficult to understand how the then CEO could have formed the view that there was no suitable position available for Mr Basley. Whether at the time Mr Basley would have accepted such a role is not known as his evidence was that given his experience looking for work he may have been willing to consider what would have been a demotion.

[22] I am not able to make a final assessment of the merits as there are factual disputes, between the parties, including whether any modern award applied, that have not been tested. However on the evidence before me, Mr Basley may be able to establish that Rush Group did not consider him for redeployment to the position of Senior Consultant. I am satisfied on that basis that the merits of the case weigh in favour of finding exceptional circumstances.

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

[23] Mr Basley submitted that as a result of his dismissal, he has had to accept a lower paid position. He was not given any warning that his performance was unsatisfactory. It was his evidence that he had grown the business. He submitted that this was a personality based dismissal dressed up as a redundancy to avoid normal procedure.

[24] I do not consider that this addresses this criterion. No submissions were made about how employees who considered their redundancy to be a sham at the time it occurred who failed to lodge their application in time mainly because of insufficient evidence have had their extension of time applications determined.

[25] I consider this criterion to be neutral.

Conclusion

[26] I am not satisfied that there are exceptional circumstances. This is not a case where acceptance of the genuineness of the redundancy at the time was negated because of subsequent events. Mr Basley was always of the view that his redundancy was a sham. Mr Basley could have lodged his application in time. This is not a case where the merits of the case are so strong as to outweigh the other considerations. Mr Basley’s application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

C. Basley on his own behalf.

M. Yorston for the Respondent.

Hearing details:

2015.

Melbourne and Perth (telephone link):

September 8.

<Price code C, PR571744>

 1   [2011] FWAFB 975

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