Gregory McCallum v Fujitsu Australia Limited

[2021] FWC 2864

[2021] FWC 2864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory McCallum
v
Fujitsu Australia Limited
(U2021/937)

COMMISSIONER WILLIAMS PERTH, 31 MAY 2021

Termination of employment - extension of time.

[1] Mr Gregory McCallum (Mr McCallum or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Respondent is Fujitsu Australia Limited (the Respondent).

[2] Mr McCallum’s application includes a letter dated 29 September 2020 advising his dismissal takes effect on 1 October 2020.

[3] Mr McCallum made this application on 5 February 2021.

[4] Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. Mr McCallum made this application more than four months after his dismissal took effect.

[5] The Fair Work Commission (the Commission) has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[6] Consequently, I wrote to the Applicant explaining the requirements of section 394 of the Act and invited him to provide any relevant evidence and submissions to assist the Commission in determining whether there are exceptional circumstances in this case.

[7] The Applicant has provided a written response to the Commission’s direction. Similarly, the Respondent has filed a form F3-Employer’s Response and a written submission.

[8] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The reason for the delay

[9] Mr McCallum’s application explains as follows,

“I only became ware on 3rd February 2021 that this was an unfair dismissal rather than a redundancy as 2 of the 6 people offered redundancies are still working in their current role.”

[10] The Applicant in his supporting submissions explains he and the five others from his team around Australia attended a meeting with HR and Senior Management where they were advised their positions were being made redundant in two waves and the employees could elect whether their redundancy would occur in the first wave (1 October 2020) or the second wave (December 2020).

[11] The Applicant says he elected to leave in the first wave as he had found other employment with another company. Unfortunately, this other employment fell through and the Applicant says he was left unemployed.

[12] The letter confirming the redundancy indicates that a review of current and future business processes and requirements within service delivery has resulted in a decision to restructure that unit and confirms the Applicant’s election to finish effective 1 October 2020.

[13] The Applicant says he initially accepted the redundancy as “legal” but on 3 February 2021 he became aware that two members of his team were still working in this role despite the second wave of redundancy taking effect in December 2020.

[14] The Applicant says that had the Respondent, during the initial redundancy meeting mentioned there could be an extension to the timeframe of the second wave he may not have elected to go in the first wave.

[15] This prompted the Applicant to seek advice and form a view that because his position was filled by another person in a different country his dismissal was not a genuine redundancy.

[16] The Applicant also explains that having not been able to obtain new employment, other than Uber Eats jobs, caused him to be severely depressed in the lead up to the Christmas period in 2020.

[17] From the Applicant’s view, I understand why he considers becoming aware that two of the team members remaining employed is an acceptable reason for the delay in making this application. Because of his subjective view of this information, he changed his mind about his termination being a genuine redundancy.

[18] The Applicant learning that two team members remained employed beyond 31 December 2020 does not however mean his redundant position was still required.

[19] The two team members remaining employed, being the only new information the Applicant had, was not itself a reason to objectively conclude that his dismissal in October 2020 was not a genuine redundancy as he had originally accepted. The Respondent explains that due to an unanticipated issue that arose after the Applicant was dismissed the expected dismissal of the other affected employees was delayed from December 2020 to the end of March 2021.

[20] The Respondent’s decision to restructure its service delivery unit with the intention to outsource the work, whether within Australia or overseas, is a business decision open to them that can legitimately results in a position being made redundant.

[21] There is no medical information before me about the state of the Applicant’s mental health, but the Applicant’s own evidence is that it deteriorated in the lead up to Christmas 2020 which was approximately two months after the 21-day timeframe for making this application passed.

[22] In the circumstances here, there was no acceptable reason for the delay nor were the circumstances exceptional.

When the Applicant became aware of the dismissal

[23] The Applicant, Mr McCallum, received a letter dated 29 September 2020 advising his dismissal took effect on 1 October 2020.

Any action taken by the person to dispute the dismissal

[24] Other than this application, the Applicant did not take any other action to dispute his dismissal.

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

[25] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[26] The Respondent in its form F3-Employer’s Response provided details of the process and decision to make the Applicant’s position redundant.

[27] It says the business made a preliminary decision to make structural change within the Vetting Team of its Field Services Division to, among other things, improve efficiencies. In the event the proposed structural changes were implemented, the Respondent considered that it would no longer require certain technical support positions. That is because, as part of the proposed structural changes, it intended to offshore the work of the positions to the Philippines, with that work to be performed by existing employees of a subsidiary of Fujitsu Philippines Inc.

[28] In response to the Applicant’s understanding that some team members remain employed beyond the second wave of redundancies, the Respondent says this was not anticipated at the time it began consulting with the affected employees, including the Applicant and was a consequence of an issue that arose after his dismissal. The remaining team members’ positions will still be made redundant but the date of this was delayed to the end of March 2021.

[29] The Respondent submits it no longer required the Applicant’s position to be performed by anyone because of changes in the operational requirements of the business and it complied with all applicable consultation obligations in respect of the Applicant.

[30] The Applicant’s evidence is largely consistent with the details provided by the Respondent however, it is only at a hearing of a matter such as this would it become clear whether or not the application has merit. The Commission does not embark upon a hearing of the merit when determining the preliminary issue of an application to extend time for filing the substantive application.

[31] Consequently, I view the merits of the application as a neutral factor in this decision.

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

[32] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[33] The onus is on Mr McCallum, as the Applicant, to demonstrate to the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[34] I have considered the information provided by the Applicant and considering the relevant factors above I am not satisfied that this case involves exceptional circumstances.

[35] I am not therefore able to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

[36] An order [PR729978] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 9 February 2021.
Respondent, 8 March 2021.

Printed by authority of the Commonwealth Government Printer

<PR729977>