Clayte Terrence Foley v DNH Solutions Pty Ltd
[2022] FWC 1585
•29 JUNE 2022
| [2022] FWC 1585 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Clayte Terrence Foley
v
DNH Solutions Pty Ltd
(U2022/5501)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 29 JUNE 2022 |
Application for an unfair dismissal remedy – redundancy – post-dismissal belief redundancy not genuine – extension of time – whether exceptional circumstances – application dismissed
Clayte Foley (Mr Foley or the applicant) has applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to a dismissal on 12 April 2022 by DNH Solutions Pty Ltd (DNH, the respondent or the employer).
Mr Foley’s application was filed on 18 May 2022.
DNH oppose the application. It raises a jurisdictional issue. It says that Mr Foley’s application is out of time and that time should not be extended.
Mr Foley’s application is fifteen days beyond the 21-day statutory time period for filing unfair dismissal applications. If it is to proceed, an extension of time is required.
This decision determines whether an extension should be granted.
I issued directions on 30 May 2022.
I heard the jurisdictional issue by video conference on 20 June 2022.
Mr Foley was self-represented with the assistance of his partner, Ms Bezuidenhout.
DNH was represented by an internal officer, Ms Burgess (Operations Manager).
Mr Foley gave evidence[1] as did Ms Bezuidenhout when it became apparent that Ms Bezuidenhout had involvement in the narrative of events.
Ms Burgess also gave evidence.
The facts, drawn from both oral and documentary evidence, are not in dispute.
Facts
I make the following findings.
DNH Solutions is a regional Queensland-based business providing services to the mining industry. This includes services at the Blackwater mine in the Bowen Basin. Blackwater is owned by the BMA joint venture (BHP Mitsubishi Alliance).
DNH had a contract to provide services to BMA including earthmoving. DNH employed operators to provide these services.
Mr Foley commenced employment with DNH as an apprentice operator in August 2021. He operated excavators. On 31 October 2021, following a favourable performance review, DNH appointed Mr Foley as an apprentice ‘tier 3 operator’ with a salary increase. The position was “subject to client requirements and subject to [Mr Foley’s] continued acceptable performance”.[2]
The apprenticeship system in Queensland is overseen by the Queensland Department of Employment, Small Business and Training (the Department).
In or around early April 2022 BMA advised DNH that operational changes at the mine would require DNH to reduce some of its labour and cease operating some of its equipment. DNH assessed that some four to six operators needed to be made redundant.
DNH conducted an assessment according to a matrix to determine who would be made redundant.
On 12 April 2022 DNH’s Operations Manager Ms Burgess telephoned Mr Foley. Ms Burgess advised Mr Foley that he would be made redundant due to the scaling back of BMA’s activities at the mine. Ms Burgess explained, in broad terms, that the operation of some equipment, including equipment operated by Mr Foley, was ceasing due to BMA requirements resulting in the redundancy of some operators.
Mr Foley immediately ceased employment.
Having regard to his length of service, DNH paid Mr Foley one week in lieu of notice. This was paid on 20 April 2022.
Mr Foley accepted on face value what he had been told and considered it plausible. Mr Foley knew that a dismissed employee had unfair dismissal rights and knew that such claims had to be made within 21 days. However, this was not in his contemplation because he believed, at that time, his dismissal to have been genuine.
An Employment Separation Certificate[3] was prepared by Ms Burgess on 22 April 2022 but, for reasons unclear from her evidence, was not received by Mr Foley until after he had lodged his application.
A Field Officer with the Department (Ms Burke) contacted Mr Foley by email on 6 May 2022 seeking confirmation that he had left DNH’s employment.
Mr Foley spoke to the Department (Ms Burke) by telephone on 11 May 2022 to discuss how his redundancy would affect his future training. According to Mr Foley, Ms Burke advised him that the Department had been informed by DNH that Mr Foley had resigned. Mr Foley was taken aback at the suggestion and said that he had not resigned but had been made redundant. Ms Burke informed Mr Foley that he may be entitled to make an unfair dismissal claim in the Commission.
Unknown to Mr Foley, in April and May 2022 DNH had been liaising with a Senior Field Officer of the Department (Ms McBrien) on sourcing new supervised registered training organisations to take over training contracts of its apprentices. In correspondence to the Department on 3 May 2022[4] Ms Burgess provided the Department with two lists – apprentices no longer employed (yellow list) and apprentices employed who she wished to prioritise (green list). In respect of the yellow list, Ms Burgess stated:[5]
“I have highlighted below in Yellow crew no longer with us and included their resignation date so there (sic) contracts can be cancelled”.
Mr Foley’s name was in the yellow list. Whilst alongside names of persons in the yellow list were the words “Resigned” with a date of resignation, alongside Mr Foley’s name were the words “Terminated 12/04/20222”[6].
Mr Foley informed his partner Ms Bezuidenhout about the conversation he had with Ms Burke on 12 May 2022.
The following day, Ms Bezuidenhout made inquiries of BMA seeking details of Mr Foley’s training contract. According to Ms Bezuidenhout, she was informed by a BMA officer that the record showed that Mr Foley had resigned. Ms Bezuidenhout also understood from her discussion with BMA that four persons had since been employed as operators following Mr Foley’s dismissal.
Ms Bezuidenhout reported this information to Mr Foley. On or about 12 May 2022 Mr Foley made his own informal inquiries of persons he had worked with which, according to Mr Foley, confirmed in his mind that new operators were operating equipment he used to operate.
No longer believing that his dismissal was a genuine redundancy, Mr Foley and Ms Bezuidenhout researched his unfair dismissal rights and gathered documents to support a claim.
On 16 May 2022 Mr Foley populated an unfair dismissal application on-line from the Commission web site. He wanted to attach documents to the application. He sent the application with attachments to the Commission.
At 9.28am on 17 May 2022 Mr Foley received an email from an administrative officer of the Commission which advised:[7]
“The Fair Work Commission received the attached email from you on Tuesday 17 May 2022. We cannot access your email or attachments because of the format of the files…We cannot action your email because we cannot access the documents that you tried to send us. If you have tried to lodge an application or send us documents about an existing case, we have not received the files.”
The following day (18 May 2022) Mr Foley again tried to send his application with the attachments in a different format. This time he succeeded.
Mr Foley’s application (with attachments) was received by the Commission at 11.55am on 18 May 2022.
Submissions
Mr Foley submits that his application was filed late because it was only on 12 May 2022, after the statutory time period had expired, that he had grounds to believe his redundancy was not genuine.
According to Mr Foley, only once he was told that DNH were wrongly saying that he had resigned, and only once he was told that newly employed persons were operating equipment he used to operate, did he consider that DNH had not been truthful to him.
Mr Foley submits that he acted quickly after receiving this information, and would have filed a day earlier had the attachments to his application been in a format that was acceptable to the Commission.
DNH submit that the circumstances are not exceptional and the merits of the application are weak. It submits the redundancy was genuine and that the information relied upon by Mr Foley to subsequently believe his dismissal was not genuine is incorrect.
DNH say that it did not advise the Department that Mr Foley resigned. It says that it advised the Department that Mr Foley had been terminated. It says that it cannot control what Mr Foley was told by others.
DNH also submit that the information relied upon by Mr Foley to believe that four new persons were employed as operators was incorrect. It says that Ms Burgess’s evidence establishes that DNH has not employed any new operators since Mr Foley was dismissed. It says that the four persons it believes Mr Foley is referring to are direct employees of BMA and that it has no control over BMA’s decisions to hire and when.
Finally, DNH submit that Mr Foley wrongly claims that equipment he drove was taken out of operation. It submits that in a redundancy case it matters not whether equipment continues to be used; simply whether the employer required fewer employees as a result of BMA scaling back its contract with DNH, which was the case.
Consideration
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
The FW Act’s requirement is that an unfair dismissal application must be made within 21 days after the dismissal took effect.
An application that is out of time can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[8]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant[9]. A decision whether to extend time under s 394(3) involves the exercise of a discretion.[10]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[11]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[12]
Status of the application
Mr Foley’s application was filed on 18 May 2022.
As his dismissal took effect on 12 April 2022, Mr Foley’s application needed to be filed by 3 May 2022 to be within time.
Mr Foley’s application is fifteen days beyond the 21-day statutory time period for filing unfair dismissal applications. The period of delay is from 4 May 2022 to 18 May 2022 (inclusive).
Mr Foley’s application can only proceed if an extension is granted.
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[13] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[14]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[15]
The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[16]
I now deal with the reasons advanced by Mr Foley for the delay.
The time that elapsed between Mr Foley’s dismissal and lodgement can be divided into three periods:
· firstly, a period of nine days from 4 May 2022 to 12 May 2022 (inclusive) when Mr Foley was under a continuing belief that his dismissal was a genuine redundancy;
· secondly, a period of four days from 13 May 2022 to 16 May 2022 (inclusive) when Mr Foley was considering the information he and his partner had acquired, investigating his unfair dismissal rights and preparing his application; and
· thirdly, a period of two days from 17 May 2022 to 18 May 2022 (inclusive) when Mr Foley tried to file his application but was unsuccessful and then re-tried successfully the following day.
Past decisions of the Commission have accepted that material facts known by a redundant employee only after the statutory time limit has expired may constitute exceptional circumstances warranting an extension of time.[17] However each matter is decided on its own facts, and not each case of an employee learning of circumstances post a purported redundancy will constitute exceptional circumstances.[18]
Mr Foley could not reasonably have been expected to file an application during the statutory period of twenty-one days nor during the first period of delay. In these first thirty-three days after dismissal he had no grounds to believe that his dismissal was not a genuine redundancy. The first period of delay has an acceptable explanation.
The second delay period arose because Mr Foley, with the support of his partner, chose to investigate (as best they could) the information gleaned from the Department (about his alleged resignation) and (from BMA) about other persons using equipment Mr Foley had operated.
Mr Foley and Ms Bezuidenhout did not delay in making their inquiries nor in securing information about how to make an unfair dismissal claim.
However, Mr Foley (and Ms Bezuidenhout) made assumptions about the information they had been advised. They assumed that DNH had in fact told the Department that Mr Foley resigned. They assumed that the four new persons operating equipment Mr Foley had operated were employed by DNH.
DNH’s email to the Department of 3 May 2022 was poorly worded and a less than careful reading of it may have led an officer of the Department to wrongly believe that the employer had identified Mr Foley as having resigned when a closer look at the list showed this not to be the case.
Mr Foley could have, but did not, go to DNH to check the facts. Had he done so, he may have been advised that DNH had informed the Department that Mr Foley had been terminated, albeit (confusingly) amongst a list of persons who had resigned. Mr Foley may also have been advised that the four new operators were direct employees of BMA and that DNH had employed no new employees since his dismissal. I accept Ms Burgess’s evidence in this regard.
Had Mr Foley done so, his initial concern that DNH had not been truthful may have been allayed.
Mr Foley also made the assumption that equipment he operated whilst employed was made redundant and that the continued operation of such equipment could make his redundancy non-genuine. Had Mr Foley approached DNH with this concern, he may have had his concern allayed by the explanation that Ms Burgess provided in evidence – that positions are made redundant but not specific items of equipment.
This second period of delay, borne out of a reasonable desire to investigate whether he had been misled, but characterised by assumptions that could have been allayed, is only a somewhat reasonable explanation.
The third period of delay is an acceptable reason. Mr Foley had his attachments in a format not compatible with the Commission’s on-line lodgement system. He moved promptly to re-file in an acceptable format the next day.
Considered overall, the reasons for delay, individually and collectively, weigh somewhat in favour of a conclusion of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Mr Foley was aware of his employment ending on 12 April 2022.
Even though he did not receive his Employment Separation Certificate much later (until after filing), and even though the certificate includes date errors, Mr Foley was neither confused about the date his employment ended nor the reason why he had been dismissed.
In the circumstances, this is a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
I have found that Mr Foley had no grounds to believe that his dismissal was not a genuine redundancy until 12 May 2022.
I have found that he moved relatively quickly to investigate information he had acquired and then advance his interests.
However, I have also found that Mr Foley did not put the employer on notice that he had obtained information of concern and did not take steps to contact the employer to ascertain whether the new information was factual.
As no action was taken by Mr Foley to dispute his dismissal other than filing his application, this consideration does not weigh in favour of a finding of exceptional circumstances.
This is a neutral factor.
Prejudice to the employer (s 394(3)(d))
DNH point to the fact that if Mr Foley’s application is allowed to proceed, it will have to defend late proceedings which involve cost and expense.
The nature of this prejudice to the employer is not unique.
However, the absence of prejudice would not itself be a reason to grant an extension.[19]
In the circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
The ground on which Mr Foley challenges his dismissal is that it was not a genuine redundancy.
As there are no other grounds on which the employer contends that Mr Foley was dismissed, this would likely be the determinative issue at a merits hearing. The employer would need to establish that the dismissal was a genuine redundancy within the meaning of the FW Act if its jurisdictional objection is to be upheld.
I have not heard all of the evidence concerning the redundancy or the selection process used by DNH. These would be matters relevant to merit.
However, I have heard evidence from Ms Burgess that the redundancy arose from advice received from their client BMA that it (DNH) had to scale back operations at the mine and reduce the number of operators it employed on-site. I have also heard evidence that DNH have not advertised nor employed any new staff at the mine since Mr Foley was made redundant.
This evidence is sufficient to enable me to form a provisional view that there is some force in the jurisdictional challenge and the proposition advanced by DNH that Mr Foley was made redundant. However, because I have not heard all evidence (including about the selection process and the reasons why re-deployment was not an option) this is a provisional view only.
Mr Foley’s case on merit may not be strong but remains arguable.
In this matter, the merits weigh somewhat, but only somewhat, against a finding of exceptional circumstances.
Fairness between persons in similar position (s 394(f))
No evidence or submissions were put concerning the implications of these proceedings on the interests of other persons and potential issues of fairness in that context.
In the circumstances, this is not a relevant factor.
Conclusion
In the context of a 21-day statutory time limit, the period of delay (fifteen days) is not insignificant.
There are reasonable explanations for large portions of the delay (delay periods one and three).
Overall the explanations for the delay weigh somewhat in favour of a finding of exceptional circumstances.
The merits of the application are not strong but remain arguable although that factor weighs somewhat against extending time.
Other factors are neutral or not relevant.
It is unusual for a redundant employee to hear from a government agency weeks later that they had resigned. As Mr Foley knew that he had not resigned, the advice to him from a third party that he had resigned rightly prompted suspicion on his part. However, that was a matter Mr Foley could have readily checked with his former employer DNH to ascertain whether or why this was allegedly being said by DNH. He did not do so.
The assumption that new persons driving earthmoving equipment at the mine were replacement employees of DNH was an assumption that fed into Mr Foley’s suspicions. He could have but did not check those facts.
The new information Mr Foley acquired, on which he relies, to advance his unfair dismissal claim, is not particularly weighty given the evidence. It is not unusual that work continues in a business or at a work site after a redundancy, nor with equipment that was operated by a redundant employee. It is unusual that a redundant apprentice is told by a government department that their former employer has asserted that they resigned, but being told that does not, of itself, mean that occurred or change the character of a dismissal.
Given that the test of exceptional circumstances is a “high hurdle”, and given that Mr Foley carries the onus of positively establishing that proposition, I am not satisfied, on balance, that the circumstances are exceptional.
There being no exceptional circumstances, the time for lodgement of application U2022/5501 cannot be extended.
Being out of time, the application must be dismissed.
An order[20] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
C Foley with M Bezuidenhout on his own behalf
M Burgess, of and on behalf of DNH Solutions Pty Ltd
Hearing details:
2022
Adelaide (by video)
20 June 2022
[1] A1 Statement of Clayte Foley
[2] A1 Attachment 2
[3] A1 Attachment 5
[4] R1
[5] R1 page 1
[6] R1 page 2
[7] A3
[8] Smith v Canning Division of General Practice[2009] AIRC 959
[9] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[10] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[11] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[12] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[13] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]
[15] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[16] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[17] John Byrnes v Rexel Electrical Supplies Pty Ltd[2015] FWC 5776; McMechan v National Roads and Motorists’ Association[2016] FWC 5826; Williams v The Building Connection Group Pty Ltd[2017] FWC 30
[18] Anderson v Spirit WA Pty Ltd t/a Professionals Rockingham[2020] FWC 4199; Humble v Jupps Carpets and Ceramics Pty Ltd [2020] FWC 4378
[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[20] PR742919
Printed by authority of the Commonwealth Government Printer
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