David West v Burnie Brae Ltd

[2017] FWC 3863

[2017] FWC 3863

The attached document replaces the document previously issued with the above code on 26 July 2017.

The document has been refilled to correct the paragraph numbers.

Rachel Wong

Associate to Deputy President Dean

Dated 27 July 2017

[2017] FWC 3863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David West
v
Burnie Brae Ltd
(U2017/3152)

DEPUTY PRESIDENT DEAN SYDNEY, 26 JULY 2017

Application for an unfair dismissal remedy – extension of time.

[1] Mr West was employed by Burnie Brae Ltd (Burnie Brae) until he was made redundant on 13 January 2017.

[2] On 23 March 2017 Mr West lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by Burnie Brae. His application was made some 49 days outside the 21 day period prescribed by s.394(2) of the Act.

[3] Burnie Brae objected to an extension of time and raised a jurisdictional objection that the termination of Mr West’s employment was a case of genuine redundancy.

[4] The matter was listed for hearing on 24 July 2017 to determine whether I should extend time for Mr West to pursue his application. At the hearing, Mr West appeared on his own behalf. Permission was granted for Mr K Nakkan of Kennedys (Australasia) Pty Ltd to appear with Mr P Bradfield (Chief Operating Officer) for Burnie Brae.

[5] Section 394(3) of the Act provides:

(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.

[6] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant.

[7] 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.”

[8] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[9] Mr West was notified of his redundancy in a meeting on 13 January 2017. His employment ceased on the same day and he received redundancy pay and payment in lieu of notice. Mr West said that although he was not happy with Burnie Brae’s decision he believed that he just had to accept it.

[10] Mr West said that he was upset and disappointed to find out on 8 March 2017 that Burnie Brae had employed a former employee to perform duties he previously carried out. He then made contact with his local community legal centre and met with a lawyer on or about 13 March 2017. He sought further legal advice from another lawyer and filed his application on 23 August 2017.

[11] In considering whether the reason for the delay amounts to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay 2. That consideration does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for a delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances3. In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic4, the Full Bench explained the correct approach by reference to the following example:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[12] The 21 day period in this matter ended on 3 February 2017. I accept Mr West’s evidence that it was not until 8 March 2017 that he came to believe that his redundancy was not genuine. I am prepared to accept that there is a credible reason for the delay for the period between 3 February 2017 and the date he first received legal advice on 13 March 2017.

[13] However, I am not satisfied that Mr West has provided a credible reason for the delay between 13 March and 23 March 2017. There is no apparent reason for the application being filed 10 days after he received legal advice on 13 March 2017.

[14] Overall, the evidence does not support a finding that there is a credible reason for the whole period of the delay. Had Mr West acted promptly after he obtained legal advice, I would have come to a different conclusion.

[15] I find that this weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[16] There is no dispute that Mr West was advised of his dismissal on 13 January 2017. I find that this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[17] Mr West conceded that he did not take any action to dispute his dismissal until the present application was lodged. Mr West submits that he did not dispute the dismissal at the time on the basis that he accepted that he was made redundant and that he could do nothing about it.

[18] I find that this is a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay)

[19] It was submitted that Burnie Brae would be prejudiced by the delay for the following grounds:

a. the delay was significant;

b. the restructure has already been implemented; and

c. Mr West was paid his redundancy pay.

[20] I am not persuaded that granting an extension of time in this case would result in any prejudice to Burnie Brae, and I so find. A lack of prejudice is an insufficient basis alone to grant an extension of time, however it weighs in favour of a finding to extend time.

The merits of the application

[21] For the purpose of determining whether to grant an extension of time for Mr West to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’⁵

[22] Mr West contended that the redundancy was not genuine and Burnie Brae replaced him with a former employee who performed the same role that he had.

[23] Burnie Brae argued that the café it operated was restructured in order to manage its wage expenses. Following the restructure, some of the responsibilities of Mr West’s permanent position were assigned to its Operations Manager and a new role of Cook/Barista was created on a fixed term basis instead.

[24] On the minimal evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[25] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 6 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 an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’7

[26] I do not consider that there are other relevant persons in a similar position to Mr West, and I therefore find it to be a neutral consideration.

Conclusion

[27] Having considered all of the matters to which my attention is directed by the Act, together with submissions from the parties, I find that there are no exceptional circumstances which would warrant granting an exception to the statutory time limit. The circumstances of Mr West are not out of the ordinary course, unusual, special or uncommon. Accordingly, the application is dismissed.

[28] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

D West on his own behalf.

K Nakkan for the Respondent.

Hearing details:

2017.

Brisbane and Sydney (by telephone):

July 24.

 1   [2011] FWAFB 975.

 2   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 3   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 4   [2016] FWCFB 349 at [31].

5 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 6   [2015] FWC 8885.

 7 Ibid at [29].

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