Craig Bite v Unitingcare Qld Limited
[2024] FWC 3567
•20 DECEMBER 2024
| [2024] FWC 3567 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Craig Bite
v
Unitingcare QLD Limited
(U2024/11119)
| COMMISSIONER SPENCER | BRISBANE, 20 DECEMBER 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – out of time – extension not granted – application dismissed.
Introduction
Mr Craig Bite (Applicant) made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Mr Bite lodged his application against UnitingCare Qld Limited (Respondent) on 19 September 2024.
The Applicant had been employed by the Respondent since 7 July 2003 until 5 July 2024 when his job was made redundant. The application was filed 55 days beyond the 21day legislative time limit for filing an unfair dismissal application. The Respondent filed a jurisdictional objection pursuant to s.394(2)(a) that the application was filed late, and the Applicant sought an extension of time in order that the Application for unfair dismissal is accepted.
Directions and Legislation
A notice of listing was sent to the parties for the determination of the jurisdictional issue. Directions were set for the filing of materials in relation to the jurisdictional objection. The Directions included the relevant legislation for the consideration of this matter as set out in s.394.
“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.”
Further the threshold test of ‘exceptional circumstances’ in relation to the reasons for the delay, must be met. The definition, as set out below was provided to parties in the issued Directions:
Exceptional circumstances are NOT regularly, routinely or normally encountered.[1] Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[2] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[3]
The Respondent filed 2 witness statements from Ms Leisa Jones and Ms Sarah Daviess, both are Senior Human Resources Business Partners of the Respondent, regarding the process and the restructure. The Applicant at the initial proceedings considered he wanted to some further evidence and ask some questions of the one of the witnesses. However, he was not in a position to proceed. Accordingly, the matter was relisted to enable the Applicant to do this. He provided a number of responses to Ms Sarah Daviess’s witness and asked a series of questions of that witness.
Background
A decision had been made by the Respondent to restructure the operation of the maintenance of the Respondent’s hospitals. Evidence was provided by the parties referring to a PowerPoint presentation that was conducted in relation to the restructure. The presentation provided information on the redundancy process, in relation to the reduction in number of these maintenance positions.
The Respondent stated that the employees were advised during the presentation that the selection process for the restructured positions was to be undertaken by way of a ‘desktop review’ of the skills and experience of the employees applying for the positions. The employees were requested to provide this relevant information for the selection process.
The Applicant attached to his documents the brief handwritten letter he provided in response to the ‘desktop review’ process. He set out that the selection process was not made clear to him. The Applicant stated that his long-term immediate supervisor, the General manager (GM) who had been particularly aware of his work in his role had been on leave at the time when the consultation and selection process was undertaken.
The Applicant stated that the GM he had reported to was aware of his skill, qualifications and experience in undertaking his role. The Respondent’s Head of Nursing was the executive assigned to oversee the ‘desktop selection’ process. The Applicant stated that this member of personnel, would not have been aware of the long-term maintenance work he had undertaken, or his skills and qualifications. The Applicant stated that he endeavoured to contact the GM, in order that he may convey his knowledge of the Applicant’s ability, but he did not receive a response from the GM. The Applicant said that he had limited time to prepare his written response to the process and it did not comprehensively set out his skills and qualifications. The Applicant was uncertain whether his personnel files were up to date with all his skills, qualifications, and tickets that he held. He stated he had been relying on the GM, being able to support his application, on the basis of his knowledge. The Applicant put a series of these questions to the Respondent’s witness, Ms Sarah Daviess in regard to the process used. Ms Daviess set out the fairness of the redundancy and selection processes but that there was a requirement in this process for the Applicant to respond properly to the process in terms of providing a proper application that set out his skills and experience etc. The Applicant's application had not properly engaged with the process or provided the detail as requested.
Consideration
In order for the jurisdiction to be established for the Commission to hear the s.394 application, it is necessary for the Applicant to obtain an extension of time. In assessing an extension of time, pursuant to s.394(2) for the Commission to allow for a further period of time, (accommodating the delay with filing) to accept the application, the Commission must be satisfied that exceptional circumstances exist. s. 394 (3) [Extended Time Limit] states:
“(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.”
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[4] The Full Bench emphasised that it will come down to whether it is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be taken from previous decisions. In the decision of Nulty, the Full Bench found that big to be ‘exceptional’, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, altho individually of no particular significance, when taken together can be considered exceptional.[5]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[6] a Full Bench of the Fair Work Commission provided clarification regarding the assessment of exceptional circumstances:
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional”
(original emphasis)
s.394 (3) Criteria
Each of the following criteria must be assessed to determine whether an extension of time should be granted:
(3)(a) Reasons for the delay
Separate to these matters, the Applicant stated that some weeks later after being advised that his job had been made redundant, he heard from another employee that his job was filled by another person that was doing the same or similar duties that he had done. However, he stated that in learning this information some weeks later, this triggered the filing of the unfair dismissal application. The Applicant was advised that he was not successful in obtaining one of the reduced number of maintenance positions and that his job was made redundant. The Applicant stated after being advised that his job had been made redundant, there were a series of issues arising with the finalisation of his employment. Resolving these issues occupied some of his time in the weeks after his job was made redundant. These issues included him pursuing the Respondent for one week of the redundancy payment that had not been paid. In addition, he had endeavoured to access a transitional program that he had been offered by the employer, but the access code had not worked. This required him to contact the Respondent about this.
The Applicant stated that some weeks later after being advised that his job was redundant, he heard from another employee that his job was filled by another person, Li was doing the same or similar duties that he had. The Applicant confirmed that at the time of being advised that his job was redundant, he did not ask who the successful candidate was. However, he stated that on learning this information some weeks later, this triggered filing the unfair dismissal application. He stated that at the time of being notified of the selection process there were no alternative job vacancies advertised, and no interviews were performed for his job. The Applicant argued that due to the manner in which the desktop review was undertaken for the redundancy selection process there was an unfairness in the manner in which the redundancy was affected. He stated he was given a redundancy package and told that his position was no longer needed. He then stated much later he became aware that another person was employed in his role. The evidence of the Respondent made clear that the job that the Applicant had undertaken no longer remained and the positions were restructured, and the overall number of maintenance positions reduced.
As set out whilst the Applicant had been required to attend to some post-employment administrative matters, the nature of these tasks would not have impeded the Applicant from making relevant inquiries about contesting the redundancy. The activities he referred to were not totally time-consuming and would not have stopped the Applicant when he was in contact with the Respondent about the administrative matters also asking relevant questions of the employer regarding the outcome of the redundancy process. Further these post-employment administrative matters the Applicant refers to required him to have contact with the Respondent and as a result he could have made earlier relevant inquiries as to the outcome of the desktop review process and the result with his job and if it concerned him who was undertaking some of those duties as a result of the redundancy process.
The Applicant had not provided adequate reasons for the period of the significant delay. This matter weighs against the Applicant being granted an extension of time.
(3)(b) Delay in being made aware of the dismissal
The Applicant did not experience any delay in being made aware of the dismissal. He had received contemporary information on the PowerPoint session regarding the restructure of the maintenance operations and the associated redundancy process. He was advised promptly that his job had been made redundant. The delay he relies on in becoming aware (that someone else was undertaking some of the duties in what he considered resembled his job) did not present as a justifiable delay in filing is application. If he had inquired with the Respondent as to who was successful in undertaking the duties in the revised position that information would have been available to him. The Applicant was in touch with the Respondent in relation to post-employment administrative matters and made no attempt to discuss the outcome of the redundancy process at the time of termination or thereafter.
This matter weighs against the Applicant being granted an extension of time.
(3)(c) Action taken to dispute the dismissal
The Respondent stated that the Applicant took no action from the date of dismissal on 5 July 2024 until filing the application with the Commission on 19 September 2024. The Applicant had been in contact with the Respondent regarding payment of his entitlements and awaiting access to a transition program. However, after being advised that his job was redundant, he did not question the Respondent about who had been appointed to the restructured position. Accordingly, learning about this information at a significant time after the finalisation of his employment should not have triggered the action of filing of an unfair dismissal application given that he had made no attempts to discuss or find out the relevant information prior.
This matter weighs against the Applicant being granted an extension of time.
(3)(d) Prejudice to the employer
In circumstances where the redundancy process or outcome in which people have been appointed to the new roles some months ago was contested, this would prejudice the Respondent in incurring costs to defend the revised structure and also potentially have the effect of disrupting the appointments to the new roles.
This matter weighs against the Applicant being granted an extension of time.
(3)(e) Merits of the application
The Respondent submitted that the Applicant’s job was redundant. The Applicant’s main argument was that he questioned the fairness of the selection process in the redundancy, particularly when he became aware that someone else was performing a job that he considered resembled his previous job. In the decision of Telstra-Network Technology Group v Kornicki,[7] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the Applicant to establish that the substantive application was not without merit.”
Significant evidence on the merits of an application is rarely called at an extension of time hearing. The Applicant was permitted to provide evidence in relation to the merits of the selection process given that was his main argument, in relation to the reason for the delay. However, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an Applicant to lodge her or his application.’[8] It was clear the Applicant did not engage with the redundancy process.
This weighs against the Applicant in the circumstances being granted an extension of time.
(3)(f) Fairness between the person and other persons in a similar position
No particular information regarding a comparison between the Applicant and the person selected to undertake some of his duties in the revised position (related to the hospitals he had undertaken maintenance for) was presented.
This position is considered to be neutral in the circumstances.
Conclusion
I have weighed each of the matters I am required to take into account and have determined that there are no exceptional circumstances in this case justifying an extension of time of 55 days.
Accordingly, pursuant to s.394(3), the circumstances of the delay, were not circumstances considered to be ‘exceptional’. The discretion to extend the time limit is, therefore not exercised to grant a further period to accept the application.
I Order accordingly.
COMMISSIONER
Appearances:
C Bite, Applicant
A Farrell, of the Respondent
[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388, 10 [25].
[2] Ibid 10 [26].
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38] (‘Stogiannidis’).
[4] (2011) 203 IR 1, 6 [15].
[5] Ibid 5–6 [13].
[6] Stogiannidis (n 3) [38].
[7] (1997) 140 IR 1.
[8] Kyvelos v Champion Socks Pty Ltd, 10 November 2000 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]–[38].
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