David Andrews v Nationwide News Pty Limited
[2024] FWC 2599
•20 SEPTEMBER 2024
| [2024] FWC 2599 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Andrews
v
Nationwide News Pty Limited
(U2024/9473)
| COMMISSIONER SIMPSON | BRISBANE, 20 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – out of time – extension not granted – application dismissed.
On 14 August 2024, Mr David Andrews (the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment.
The Applicant named News Corp Australia Pty Limited as his ex-employer. At the hearing, I granted leave under section 586 to correct the Respondent’s name to Nationwide News Pty Limited (the Respondent).
The Respondent objected to the application as it said the Applicant’s application was filed outside of the 21-day statutory timeframe and that the Applicant’s dismissal was a case of genuine redundancy. The matter was listed for jurisdictional hearing on the out of time issue on 20 September 2024. Directions were issued for the filing of submissions; however, the Applicant chose not to submit anything further in support of his application.
The Applicant appeared at the hearing on his own behalf. Mr Daryl Makins and Ms Jennifer Bogias of the Respondent appeared on behalf of the business.
Background and Submissions
From 21 August 2023 to 14 June 2024, the Applicant was employed as a Business Development Manager within the Small Medium Business part of the Respondent’s Client Partnerships division.
In early June 2024 the Respondent submitted that it made the decision to restructure due to cost challenges and need to change to meet changing market requirements. The Applicant’s role was selected for redundancy.
The Respondent submitted that it commenced its consultation process on 5 June 2024 and the Applicant was informed that the Respondent was considering changes to the operations and staffing levels. The Applicant was provided an opportunity to ask questions and provide feedback on the proposed changes prior to the decision being confirmed. The consultation process was confirmed in writing by a letter dated the same day.
A further meeting was held on 7 June 2024, during which it was confirmed that the Applicant’s role would be made redundant and the Applicant was put in touch with the Respondent’s Talent Acquisition team to discuss vacant roles within the company. The Respondent submitted that during discussions concerning the redundancy, the payment of sales incentive “commission” was discussed. The Applicant was informed that he had only secured two new deals in the Q4 period, whereas he was required to secure three. The Respondent contended that a manager offered to assign a third new deal to the Applicant to secure.
The Respondent submitted that as the Applicant was not able to be reasonably redeployed, his employment was terminated due to redundancy on 14 June 2024 and a letter was provided to him confirming this.
The Respondent submitted that the Applicant was notified of the end of his employment on 14 June 2024 and yet only made his unfair dismissal application 61 days later, on 14 August 2024 without providing a reasonable explanation for the delay. The Applicant submitted at the hearing that in the course of the discussion he foreshadowed contesting his dismissal and at this point he was told by Mr Andrew Reeves that this “may impact your commission”. The Respondent rejected this assertion.
Consideration
In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under section 394(2) of the Act. This section 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 the following:
(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.
Reason for the delay
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[1] The Full Bench observed that what it will come down to 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 gleaned from previous decisions. In Nulty, the Full Bench said that in order 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.[2] 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 can be considered exceptional.[3]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench 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”[4]
(original emphasis)
The Applicant, in his Form F2 application submitted that the reason for the delay was:
“I was passively blackmailed with not receiving commission when mentioning that I was going to Fair Work. Andy said “I’d hate for that to effect your commission” so I waited until I received my sediment commission payment prior to opening a discussion around retrieving the rest of the money I earned.”
The Applicant was invited to provide further submissions to support his application for an extension of time twice: on 3 September 2024, when the directions were issued from my Chambers, and 11 September 2024 when he failed to file any material under the directions and my Chambers followed up. On 11 September 2024, the Applicant stated:
“I believe I already covered in one of the forms that I was blackmailed.”
The Applicant did not provide any further written submissions or evidence as to why his application was 40 days late, however at the hearing asserted that he was told by Mr Reeves if he contested his dismissal “it may impact your commission” which was rejected by the Respondent. The Applicant said commission payments were paid quarterly, and he decided to wait until after he had been paid his commission payment before filing his unfair dismissal application. The Applicant also submitted that he did not know about the 21-day time limit to file his unfair dismissal application, and had he known he would not have waited to file his application.
The Respondent submitted that the Applicant has not provided a reasonable explanation for the delay nor filed any submissions or information to support his application for an extension of time apart from the original Form F2 application. Further, the Respondent contended that the Applicant’s only reason provided for the delay, was that he was “passively blackmailed” with not receiving commission when he mentioned going to Fair Work. The Respondent noted that the Applicant has been paid the Commission he claims he was owed.
The Applicant submitted had he known about the 21-day time limit he would not have waited to file his application. It is well settled that ignorance of the statutory time limit does not constitute exceptional circumstances. In any event, even on the Applicant’s version of events he would have filed the application within 21 days had he known of the statutory time limit. This weighs against this being a case of exceptional circumstances.
Delay in being made aware of the dismissal
The Applicant was aware of the dismissal on and prior to the date it took effect. This factor is neutral.
Action taken to dispute the dismissal
The Respondent submitted that the Applicant took no action from the date of dismissal on 14 June 2024 until filing the application with the Commission on 14 August 2024.
The Applicant agreed at the hearing that the first action he took to dispute the dismissal was the filing of the unfair dismissal application. I find this factor weighs against the Applicant.
Prejudice to the employer
The Respondent contended that it would be prejudiced by the Applicant being granted an extension of time as it had undertaken a bona fide redundancy process. Further, that granting an extension of time would burden the company with the time and expense of responding further to the application where the dismissal was a genuine redundancy. The Applicant submitted that the delay would not cause the Respondent any prejudice given its size and available resources. I find this factor to be neutral.
Merits of the application
In Telstra-Network Technology Group v Kornicki,[5] 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.”
Evidence on the merits is rarely called at an extension of time hearing and was not called in this case. 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.’[6] The merits of the application more generally would need to be scrutinised and would include consideration of the circumstances of the dismissal, including whether it would have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise or that of an associated entity. If an extension of time were granted and the matter proceeded this would need to be examined.
I consider the merits to be a neutral factor.
Fairness between the person and other persons in a similar position
There was no evidence that there was another person in a similar position to that of the Applicant and this is a neutral matter.
Conclusion
I have weighed each of the matters I am required to take into account and have determined that there are not exceptional circumstances in this case justifying an extension of time of 40 days. On that basis the application is dismissed.
An order dismissing the application will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
D Andrews, Applicant
D Makin and J Bogis, of the Respondent
Hearing details:
2024
Brisbane (by video)
20 September.
[1] (2011) 203 IR 1, 6 [15].
[2] Ibid 5 [13].
[3] Ibid 5–6 [13].
[4] (2018) 273 IR 156, 165 [38].
[5] (1997) 140 IR 1.
[6] 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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