Jake Paterson v Eptec T/A Eptec Pty Limited

[2021] FWC 4194

[2021] FWC 4194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Jake Paterson
v
Eptec T/A Eptec Pty Limited
(U2021/5477)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 19 JULY 2021

Application for an unfair dismissal remedy – extension of time – employee awaiting review of decision not to redeploy – employer delay in final response - discretionary considerations – exceptional circumstances – extension granted

[1] On 22 June 2021 Jake Paterson (Mr Paterson) made an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to a dismissal by Eptec Pty Ltd (Eptec or the employer) which took effect on 27 May 2021.

[2] Mr Paterson’s application was made twenty-seven days after the dismissal took effect, being five days beyond the statutory time-limit.

[3] For Mr Paterson’s application to proceed it would require the Commission to grant an extension of time.

[4] Mr Paterson seeks that extension.

[5] Eptec oppose the application for an extension. It also opposes the application on jurisdiction and merit grounds. It claims that Mr Paterson’s dismissal was a case of genuine redundancy.

[6] This decision deals only with the extension of time issue.

[7] I issued directions on 28 June 2021. Information about an extension of time and factors the Commission is required to take into account were provided to the parties.

[8] Mr Paterson filed materials in advance of the hearing and the employer filed a submission in response.

[9] On 13 July 2021 I granted leave for Eptec to be represented 1.

[10] Although the employer (and it would appear, Mr Paterson) considered that the extension of time issue could be deal with on the papers, I considered that the interests of justice required a hearing so that I could be satisfied that Mr Paterson (as a self-represented party) fully understood the issues, and so relevant questions could be asked of the witnesses.

[11] I heard the matter by video on 15 July 2021.

[12] Mr Paterson gave evidence, as did Eptec’s General Manager People and Culture Ms Anne Tait.

[13] There are no material factual disputes.

[14] Following the hearing, I reserved my decision.

Facts

Mr Paterson’s employment

[15] Eptec is an engineering contractor working primarily on defence and marine projects. One such undertaking is the submarine project at Osborne in South Australia operated by the Australian Submarine Corporation (ASC Pty Ltd). The ASC site at Osborne is split into ASC North (submarines) and ASC South (naval patrol vessels).

[16] Mr Paterson commenced working for Eptec as a full time (non-trade) general hand in October 2020. In January 2021 he was re-classified to a semi-skilled (non-trade) blaster, painter and insulator.

[17] Mr Paterson worked for Eptec on the ASC North site.

[18] Work at ASC North slowed from March 2021. Eptec reviewed its operational requirements. By May 2021 it decided to reduce the size of its workforce.

[19] After conducting a skills assessment based on a matrix, on 24 May 2021 Eptec decided to make some employees redundant, including Mr Paterson. It decided not to redeploy Mr Paterson to ASC South (where it also conducted business), forming the view that his skills and experience did not qualify him for work it had available (and was advertising) at ASC South.

[20] On 26 May 2021 an Eptec manager (Mr Podreka) met with Mr Paterson, told him he was made redundant from the following day (27 May 2021) and gave him a letter (under the hand of Ms Tait) to that effect. The letter read in part: 2

“Unfortunately, there are no alternative positions within Eptec SA that you could reasonably be deployed to at this time and no other steps can be taken to avoid termination of your employment by reason of redundancy. Accordingly, your position will become redundant on Thursday 27 May 2021.

We have provided you with a full list of vacancies across the Eptec Group and invite you to confirm if you have an interest in taking up an opportunity with Eptec in another State…”

[21] In this meeting with Mr Podreka, Mr Paterson acknowledged that work on ASC North had slowed but asked whether work on ASC South was available. He was told no, but that he could look interstate.

[22] For Mr Paterson that was not an option. He and his partner had recently moved closer to his workplace at ASC Osborne.

[23] Mr Paterson was not surprised that work at ASC North (submarines) had dried up but was surprised at not being offered work at ASC South (patrol vessels) given that he had noticed Eptec were advertising roles he considered comparable to work he had performed.

[24] Mr Paterson spoke immediately to his supervisor. According to Mr Paterson, his supervisor was also surprised that he (Mr Paterson) had not been offered work at ASC South. His supervisor told him to follow this up with Eptec’s human resources department. The supervisor gave Mr Paterson contact details for Ms Tait.

[25] Ms Tait is Eptec’s General Manager People and Culture based in Sydney, New South Wales.

[26] The next day (27 May 2021, the day dismissal took effect) Mr Paterson emailed Ms Tait asking if work was available at ASC South: 3

“Hey how ya going. I was advised go give you a call about getting made redundant. And was hoping there was something you could do to try to get me to the south side? I was u deep the impression that I was going next door once things got slow”

[27] Ms Tait responded that afternoon (27 May 2021) asking Mr Paterson for his contact number. Mr Paterson provided contact details that evening. On 28 May 2021 Ms Tait advised Mr Paterson that she would phone him “on Monday morning” (31 May).

[28] Ms Tait did not ring as foreshadowed on 31 May 2021. Not having heard from Ms Tait, at 12.24pm on 1 June 2021 Mr Paterson sent Ms Tait an email reminder. At 12.58pm Ms Tait apologised for not getting back to Mr Paterson as she “had a couple of urgent issues to deal with”. She said she would ring “first thing in the morning”. At 1.32pm Mr Paterson confirmed he would be available to take a call at 8.00am on 2 June 2021.

[29] On 2 June 2021 Mr Paterson and Ms Tait exchanged further emails about their availability. This resulted in their discussion being deferred to 3 June 2021.

[30] At 4.30pm on 3 June 2021 Ms Tait spoke to Mr Paterson by telephone. She advised Mr Paterson that his skills were not assessed as sufficient to enable Eptec to offer roles at ASC South including the advertised roles. Mr Paterson disputed this. He said that he believed he did comparable work and that his classification was too low. He also said that he believed he was being made redundant because of a prior work related injury. Ms Tait said this was not the case. In her evidence, Ms Tait put it this way: 4

“I understood Mr Paterson to be saying that he should have been redeployed to a new role on the ASC South site. During this conversation, I advised Mr Paterson that there were no suitable redeployment opportunities at the ASC South site and that the only redeployment opportunities were located interstate.”

[31] The phone call concluded on the basis that Ms Tait told Mr Paterson she would follow up and review his concerns with the South Australian management team and confirm whether he should have been classified and paid at a higher level (Level 7).

[32] Ms Tait did not communicate a further substantive response to Mr Paterson until fifteen days later, 18 June 2021. However, between 4 June 2021 and 17 June 2021 Ms Tait and Mr Paterson exchanged a series of emails.

[33] On 6 June 2021 Ms Tait advised Mr Paterson: 5

“Hi Jake
Thanks for going through your areas of concern last Thursday. I am following up with the SA operations and will come back to you by Monday afternoon.
Regards
Anne Tait”

[34] Unknown to Mr Paterson, on 6 June 2021 Ms Tait travelled unexpectedly to Perth to deal with a family matter.

[35] Mr Paterson heard nothing from Ms Tait on Monday 7 June 2021.

[36] By the late afternoon of 8 June 2021 (4.40pm) Mr Paterson, having still heard nothing from Ms Tait, emailed her: 6

“Hey Anne did you get a chance to follow it up”

[37] Ms Tait immediately replied (4.43pm):

“Hi Jake
Not as yet – I’ve had to come over to Perth and just waiting on some feedback from Adelaide. I will give a follow up call now and come back to you shortly.
Regards
Anne”

[38] Mr Paterson again heard nothing for three days. Three days later (11 June 2021) Ms Tait emailed Mr Paterson:

“Will come back this afternoon with update”

[39] Later that evening (7.35pm) Ms Tait emailed Mr Paterson:

“Hi Jake – missed today’s deadline and it is a public holiday Monday so will revert back to you on Tuesday. I’m just waiting on some additional feedback from SA. Apologies for the delay”

[40] On 12 June 2021 Ms Tait raised Mr Paterson’s concerns (the ones he had raised nine days earlier in their telephone conversation) with Eptec’s SA management. Ms Tait raised both Mr Paterson’s classification concern and his redeployment concern: 7

“Hi both

I had a chat with Jake following his termination from Eptec.

He raised the following concerns:

1. He had been told by Jason that he would be elevated to a Level 7 as he was performing Blasting work

2. He had heard Jordan say all 8’s should be Level 7s if they were blasting

3. He understood that North was down-sizing but believed he would be moved to the South side as he was able to perform blasting function

Whilst I can cover off number 3 – we have more highly skilled and experienced employees in South as we discussed, was he supposed to have been elevated to Level 7? I note in the skills review you completed John on 7 May it states so in the comments section.

Can we please discuss

Thanks Anne”

[41] Ms Tait received an immediate response from SA management (Mr Podreka at 6.13pm 12 June 2021) as follows: 8

“Hello Anne

Yes if we hadn’t the need to terminate him then he may have been elevated to Level 7 given that he was able to blast somewhat. But given that his score was only 2.5/5 for blasting and he fell short in numerous other areas then his overall score was still quite low and thus was not considered appropriate for South side given the higher skill calibre being aimed for.

Regards
John Podreka”

[42] Ms Tait did not immediately communicate this information or a response to Mr Paterson.

[43] By 16 June 2021 Mr Paterson had still heard nothing. At 4.51pm on 16 June 2021 he emailed Ms Tait:

“Hey Anne any word on anything”

[44] At 7.18pm that evening (16 June 2021) Ms Tait replied:

“Hi Jake
I have had discussions with site management and will come back to you with response tomorrow – note, I have meetings on and off all day so not sure what time
Regards
Anne”

[45] Mr Paterson immediately replied:

“Cheers Anne speak to you then”

[46] Ms Tait did not phone or otherwise contact Mr Paterson on 17 June 2021, as had been foreshadowed. She was in day-long meetings which concluded at 9.00pm that evening.

[47] Mr Paterson had been waiting all day for a call from Ms Tait. At 6.07pm that evening (17 June 2021) Mr Paterson again emailed Ms Tait:

“Hey Anne you got any free time to chat about it”

[48] When her meetings concluded at 9.00pm Ms Tait packed up and went home. She knew that she had not contacted Mr Paterson as she had foreshadowed, and noticed that he had communicated (at 6.07pm). She was due to fly to Brisbane the following morning. Not wanting to further delay communication with Mr Paterson but aware of the late evening hour, she decided not to speak to Mr Paterson but to send him an email at 12.33am (33 minutes past midnight).

[49] Ms Tait had no new information to communicate beyond what she had been told by SA management on 12 June 2021. She had not spoken further to SA management about Mr Paterson in this period.

[50] Ms Tait’s email stated: 9

“Hi Jake

Apologies for the delay coming back to you. I have fully reviewed the retrenchment of your employment and confirm the following:

1. The North side where you were employed required to reduce employee numbers in line with project labour resourcing scheduling.

2. Management of headcount labour is completed in line with program of works schedules and needs to be maintained to meet project budget obligations.

3. A detailed skills and competencies analysis was completed for all employees engaged at the North site. This analysis is completed looking at experience, skills and tasks employee is able to complete overall, productivity of individuals, reliability and is measured via a rating scale.

4. The scale provides a highest to lower rating which is then used to determine reduction in headcount.

Regretfully, and whilst we take on board that you had been performing blasting, when rated against others your experience was not at the same level and hence you were selected for redundancy. There were no opportunities on the South side at the time you were made redundant to redeploy you.

If this changes and opportunities open up again, as they may well do in the future, we will reach out to see if you are available for employment back with Eptec.

I understand this has been a difficult time Jake, so feel free to give me a ring tomorrow to discuss.

I am heading to QLD for personal reasons tomorrow, but feel free to call. If I don’t answer leave a msg and I will call you back as soon as I can.

Regards
Anne”

[51] Mr Paterson read the email that morning (18 June 2021). He was shocked and frustrated that the review of his redeployment request had been declined. He responded by email at 11.37am on 18 June 2021 10. He disputed the conclusions reached by Eptec as relayed by Ms Tait and made certain claims about work practices he had experienced.

[52] Ms Tait replied shortly thereafter (18 June 2021) 11 expressing concern about the work practice claims made by Mr Paterson, and sought more information about them which she said she would “follow up” and call “on Monday morning”.

[53] Mr Paterson, dissatisfied with Ms Tait’s response of 18 June 2021 and Eptec’s view that he did not have the skills or experience to be redeployed to ASC South, formed the view that the redundancy was not a genuine redundancy. He had also lost faith in Ms Tait’s promises to follow-up his concerns.

[54] Mr Paterson considered that he needed external advice about his rights. That morning, 18 June 2021, he telephoned a number of possible sources of advice. He contacted a business which advertised unfair dismissal services on a ‘no win no fee’ basis. He spoke to a lawyer from that business by phone for about one hour. Although he was generally aware of the existence of a right to challenge a dismissal from employment, Mr Paterson was not aware, until that phone call, that a 21-day time limit applied. The lawyer told Mr Paterson of the time limit. Whilst on the phone, Mr Paterson and the lawyer worked out that he was already out of time, by one day. The lawyer told Mr Paterson that if he wanted to lodge a claim he would need to do so quickly. The lawyer referred Mr Paterson to the fair work agencies, including the Commission web site.

[55] Mr Paterson was upset at being denied redeployment and frustrated at his fruitless attempt to achieve a different outcome via Ms Tait. The information advised by the lawyer was a lot to absorb as was the prospect of suing Eptec, for whom he still wanted to work. According to Mr Paterson, the whole issue made him anxious and played on his mental health. He discussed the matter over the weekend (19 and 20 June 2021) with family and again with his mother (who he says had some experience in mental health management) the following Monday (21 June).

[56] On Tuesday 22 June 2021 Mr Paterson proceeded to make an unfair dismissal claim against Eptec. He was financially impaired and considered he would need a waiver of the lodgement fee in order to pursue a claim. He went onto the Commission web site, populated the unfair dismissal form on-line and sent it electronically to the Commission at 3.50pm on 22 June 2021, together with an application for a fee waiver.

[57] Two days later, Mr Paterson was contacted by a Commission officer who advised that the application had been received but was out of time (and sought some further information).

[58] Mr Paterson’s lodgement fee was subsequently waived.

Consideration

[59] 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.”

[60] Mr Paterson’s application can only proceed if he can establish that “exceptional circumstances” exist within the meaning of section 394(3).

[61] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances¹².

[62] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant¹³. A decision whether to extend time under section 394(3) involves the exercise of a discretion¹⁴.

[63] I apply section 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.”15

[64] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.

Status of the application

[65] It is not in dispute that Mr Paterson’s unfair dismissal application is five days out of time and can only proceed if an extension of time is granted.

[66] I now consider each of the factors in section 394(3).

Reason for the delay (section 394(3)(a))

[67] The reason for delay in lodging an application is a factor that must be considered.

[68] 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. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. 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 insight¹⁶. 

[69] 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 exceptional¹⁷.

[70] The period of delay requiring 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 dismissal took effect when assessing whether the explanation for the delay is acceptable or credible¹⁸. In this matter, the conduct of the parties from the date of dismissal is relevant in considering whether the reason(s) for delay is credible or reasonable.

[71] In this matter, there are two periods of delay with different (but overlapping) reasons:

•  delay period 1 – a one day delay said to be caused by Eptec’s delay in providing Mr Paterson the outcome of its review of Mr Paterson’s request for redeployment; and

•  delay period 2 – a four day delay said to be caused by Mr Paterson coming to terms with Eptec’s rejection of his redeployment review, Mr Paterson taking advice from a lawyer and from family, and Mr Paterson preparing and lodging his application.

[72] There is a credible reason for delay in the first delay period. I draw this conclusion for four reasons.

[73] Firstly, Mr Paterson requested that the decision to not redeploy him to ASC South be reviewed, and Eptec (via Ms Tait) agreed to do that.

[74] Mr Paterson made this request in his email to Ms Tait on 27 May 2021. He did so the day his dismissal took effect. Although Ms Tait repeated to Mr Paterson on 3 June 2021 what was in the termination letter (that he was not redeployed due to Eptec’s view about his skills and experience) Mr Paterson challenged this conclusion. I am satisfied that arising from the 3 June 2021 discussion Mr Paterson reasonably understood that two issues were to be further considered by Eptec – his view that his skills were at a higher level than he had been classified, and that he was sufficiently skilled and experienced to be redeployed.

[75] I do not accept Eptec’s submission that Mr Paterson was only awaiting a review of the classification issue and not his redeployment request. This submission ignores the obvious connection between making a decision on skills relevant to redeployment and making a decision on whether Mr Paterson was correctly classified. Further, this submission ignores the fact that following the 3 June 2021 discussion, Ms Tait advised SA management that she would “cover-off” the redeployment issue; in other words, it remained a ‘live’ issue between the company and Mr Paterson. It also ignores the fact that Mr Podreka on 12 June 2021 provided Ms Tait further views on redeployment. Further still, this submission ignores the content of what Ms Tait ultimately communicated to Mr Paterson on 18 June 2021. That communication was substantially, if not wholly, directed to his redeployment request.

[76] Secondly, Eptec took an unreasonably long time to inform Mr Paterson of the outcome of its review.

[77] Mr Paterson moved promptly but Eptec did anything but. Ms Tait did not speak to Mr Paterson about his redeployment request for a week. She then took a further five days to raise the issue with SA management. Then, once informed of SA management’s input on 12 June, Ms Tait waited a further six days before sending Mr Paterson an email at 33 minutes past midnight on 18 June 2021.

[78] In total, Eptec took 22 days after dismissal and 22 days after Mr Paterson requested the redeployment decision be reviewed to inform him of a final position on its review. Whilst Mr Paterson was told during this period (3 June 2021) that Eptec held to his view it nonetheless allowed Mr Paterson to operate under a belief that the issue was live and being further considered.

[79] I conclude that Eptec unreasonably delayed communicating a final position to Mr Paterson on its review of his redeployment request especially given that Ms Tait had told SA management on 12 June 2021 that she could cover-off that issue with Mr Paterson. Ms Tait’s evidence was that she recieved no further relevant information from SA management after 12 June 2021.

[80] Nothing Mr Paterson did in this period contributed to Eptec’s delayed response. Rather, Mr Paterson politely sent reminders and prompts to Ms Tait even when dates for her promised responses passed without response.

[81] The 21-day period for lodgement of an unfair dismissal claim by Mr Paterson expired on 17 June 2021. Eptec submit that it is mere coincidence that Ms Tait communicated the employer’s final position to Mr Paterson 33 minutes after midnight following 17 June 2021, despite Ms Tait having foreshadowed on 16 June 2021 that she would speak to Mr Paterson “tomorrow”.

[82] Mr Paterson submits that Eptec “strung him out” so as to force him to lodge a claim after the 21-day period. Ms Tait provided an explanation as to why she responded when she did. Her evidence was that she did not know and had not given thought to the prospect of an unfair dismissal claim or when one was due by.

[83] I am satisfied that Eptec did string-out Mr Paterson and did so unreasonably. There is no reasonable explanation for Ms Tait not having communicated after 12 June 2021 and instead having waited until 18 June. However, and although it is most unusual for an employer in a comparable time-zone to respond to an employee on an important matter at 33 minutes past midnight, I do not find that Ms Tait did so with the intention of thwarting an in-time unfair dismissal application. Ms Tait had no insight into Mr Paterson’s thinking and indeed, at that time, Mr Paterson was hopeful that Eptec would (in his view) agree that his skills matched vacancies in ASC South. Ms Tait had alerted Mr Paterson on 16 June 2021 that she was going to be busy on 17 June.

[84] Thirdly, given that Mr Paterson genuinely wanted to keep working for Eptec and held a sincere belief that he was sufficiently experienced as a blaster to fill vacancies being advertised at ASC South, it would not have been reasonable to commence legal action against his employer whilst Eptec was reviewing his redeployment request. If the review was favourable to Mr Paterson (that is, upon review he was to be redeployed) there would be no need to lodge a claim. Further, the reasonableness of redeployment was relevant to whether his dismissal was a genuine redundancy under the FW Act and thus whether a claim would be capable of success. Further still, Mr Paterson held a reasonable concern that a fair review of his redeployment request may be tainted (if not derailed) were he to sue his employer for unfair dismissal during the course of that review.

[85] Fourthly, whilst obtaining the views of SA management (including Mr Podreka’s view that Mr Paterson was unsuitable for redeployment), the final position advised by Ms Tait simply re-stated Eptec’s position but made no mention of Mr Podreka’s further observation that “if we hadn’t the need to terminate him then he may have been elevated to Level 7 given that he was able to blast somewhat”. That observation was relevant to Mr Paterson’s redeployment request, but not made known to him.

[86] For these reasons the explanation for the first period of delay is credible.

[87] The following four days of delay were occupied by Mr Paterson coming to terms with the rejection of the redeployment review, taking advice, discussing the matter with family, and completing and submitting an application.

[88] Mr Paterson said that he was stressed and managing his mental health over these four days given the rejection of his redeployment review. I have no doubt that the situation was stressful, both the rejection of redeployment and the prospect of suing his former employer. However, Mr Paterson led no evidence as to whether his stress levels inhibited his ability to navigate these issues, and if so how. Whilst I accept that a degree of stress and anxiety existed, I do not conclude that it was more than what a dismissed employee with a strong view about the unfairness of their dismissal would commonly hold.

[89] Nor do I accept that Mr Paterson was, over these four days, awaiting approval by the Commission to waive his application fee. On this, Mr Paterson’s evidence was confused. His fee waiver application did not precede the making of the application. Nor does the Commission deal with fee waiver applications in advance of applications being filed.

[90] However, Mr Paterson did actively take steps in this period to advance his interests. He took legal advice on 18 June 2021. That advice informed him of the 21 day period, that he was late and that he should act quickly.

[91] Mr Paterson could have but did not file that day (18 June). In order to lodge an application in his own right, Mr Paterson needed to find and navigate the Commission web site. I take into account that, to a person with no experience in these matters, that could take some hours.

[92] The reason why Mr Paterson took a further three days is not that it took three days to complete the unfair dismissal form after being advised of his rights and that he was out of time. It was because he wanted to absorb, consider and discuss the events of 18 June 2021 (Eptec’s communication and the legal advice he had received) with his family. He did this over Saturday and Sunday, and again with his mother on Monday 21 June. He considered it a significant step to commence proceedings and needed to be sure it was “the right pathway” and that he was up to it.

[93] The explanation for the delay over this four day period is rational but has less force given that Mr Paterson was advised on 18 June 2021 that he was out of time and needed to act quickly. Ordinarily, a dismissed employee would take advice and consider their options inside the 21-day period. Mr Paterson could have done so. However, until Mr Paterson had Eptec’s response to his further representations (including on his skills and whether he was classified correctly) that advice may have been incomplete. To a certain extent, delay in the second period bore a relationship to the fact that Mr Paterson was left waiting during the first period. That notwithstanding, Mr Paterson’s explanation for this second period of delay is weakened by the fact that Mr Paterson could have (but did not) file on the afternoon of 18 June 2021 or on Monday 21 June (when there could have been no reasonable doubt in his mind about whether an application could be lodged over weekends). Once he knew of the statutory time limit, he failed to appreciate the significance of the risk he was taking by using up further time.

[94] Considered overall, the explanation for the first period of delay weighs in favour of a conclusion of exceptional circumstances whilst the explanation for the second period of delay does not.

Awareness of the dismissal taking effect (section 394(3)(b))

[95] Mr Paterson was aware from the day prior to his dismissal taking effect that it was to take effect from 27 May 2021.

[96] This is a neutral consideration and does not weigh in favour of an extension of time.

Action taken to dispute dismissal (section 394(3)(c))

[97] Mr Paterson took immediate action to dispute his dismissal by questioning, seeking and securing a review of the decision that he did not have the skills or experience to be redeployed to Eptec’s work at ASC South.

[98] Eptec’s view was repeated to him on 3 June 2021 but his redeployment request remained under review (together with the related but newly made assertion that he was wrongly classified) until he was advised of Eptec’s final position on 18 June 2021.

[99] His post-dismissal conduct to dispute the redeployment decision and his polite but regular follow-up of Ms Tait to ascertain whether and when a final response would be forthcoming weighs in favour of granting an extension of time.

Prejudice to the employer (section 394(3)(d))

[100] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances 19.

[101] If the time for lodgement is extended, Eptec would have to further respond to the claim, involving time and cost. The nature of this prejudice is not unique.

[102] However, the absence of prejudice would not itself be a reason to grant an extension²⁰.

[103] This is a neutral consideration.

Merits of the application (section 394(3)(e))

[104] A hearing will deal with the preliminary question raised by Eptec – whether Mr Paterson’s dismissal was a genuine redundancy within the meaning of section 389 of the FW Act. Necessarily this will concern whether or not it would have been reasonable to redeploy Mr Paterson (section 389(2)).

[105] Eptec and Mr Paterson hold strongly contested views on that issue.

[106] Although I have received some evidence on this issue, I have not conducted a jurisdictional or merits hearing and these issues have not been canvassed in detail. It is not possible to form a view, even a provisional view, as to whether the merits of Mr Paterson’s case or Eptec’s jurisdictional challenge are strong or weak. At this stage each is clearly arguable.

[107] In the circumstances, this is a neutral consideration.

Fairness between persons in similar position (section 394(f))

[108] No evidence or submissions from Mr Paterson or Eptec raise issues of fairness with and between other persons.

[109] In the circumstances, this is not a relevant factor.

Conclusion on extension of time

[110] The period of delay, at five days, is not insignificant given the statutory time period of 21-days.

[111] The explanation for the delay is credible but more-so for the first period (the first day) than the second period (the final four days). Overall the explanation for the delay weighs somewhat in favour of an extension being granted. The action taken by Mr Paterson to question the redeployment decision weighs in his favour. No factors weigh against, though a number are neutral.

[112] Overall the statutory requirement is to only extend time where circumstances are found to be, in objective terms, exceptional. A high hurdle exists given the statutory time frame.

[113] I take into account that an employee awaiting an internal review of a decision concerning their dismissal is not in itself an exceptional circumstance warranting an extension of time. Applications to the Commission can be made in parallel with internal reviews, especially where this is necessary to meet statutory time frames.

[114] Each case must ultimately be determined on its own facts. As noted, the informal review initiated by Mr Paterson bore directly on whether he was to be re-employed by the business and thus bore directly on the efficacy of taking parallel legal action against the business.

[115] On balance, I consider that Mr Paterson has made out a case of exceptional circumstances. His employer took 22 days after dismissal to provide a concluded and considered response to his request that its decision not to redeploy him be reviewed. Though not deliberate, this length of time was exactly one day (indeed 33 minutes) beyond the statutory time frame. The employer took this length of time to re-state its position even though it obtained no new relevant information after day sixteen yet did not provide a response until day twenty-two. The employer frequently promised to inform Mr Paterson of its position but kept missing its own deadline. In the usual course an employer who has made a decision and is not persuaded that anything new has arisen to disturb its view, will communicate that in a timely manner. Whilst Eptec had an interim discussion with Mr Paterson on 3 June 2021, it was slow to advise a final position. Whether intentional or not, it ‘strung him out’.

[116] To paraphrase the words of the full bench in Nulty, I am satisfied that these were a “combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional”.

[117] Although the delay in the four days immediately prior to lodgement does not have the same character and involves more orthodox conduct (taking advice, considering options, preparing an application), those steps taken by Mr Paterson were rational though they could have been taken (or workshopped) earlier. In any event, a reasonable explanation for the whole of the period of delay is not required where the circumstances are otherwise exceptional. I have concluded they are due to the combination of being ‘strung-out’ and the rationality of waiting until the final decision on redeployment was known.

[118] Having found that exceptional circumstances exist, I consider it appropriate to exercise a discretion in favour of extending time. There are no discretionary reasons to not do so. Whether reasonably held or not, Mr Paterson had a genuine conviction that he ought to have been redeployed. He did not mislead Eptec as to what he was seeking and was attentive to the status of its deliberations. Given that exceptional circumstances exist, it is appropriate to extend time.

Conclusion

[119] Having regard to the factors in section 394(3) of the FW Act, the time for lodgement of application U2021/5477 is extended so as to permit the application to be heard and determined by the Commission. An order to this effect will be issued in conjunction with the publication of this decision 21.

[120] I direct that Mr Paterson’s application be referred for conciliation in advance of directions for its hearing and determination.

DEPUTY PRESIDENT

Appearances:

Mr J Paterson, the Applicant on his own behalf

Mr M Peterson, with permission, for Eptec T/A Eptec Pty Limited

Hearing details:

2021
Adelaide (by video)
15 July

Printed by authority of the Commonwealth Government Printer

<PR731758>

 1   Decision on Representation Email ‘Chambers-Anderson DP’ 13 July 2021 3.55pm

 2 R1 Attachment D

 3 R1 Attachment E

 4 R1 Attachment D paragraph 35

 5 R1 Attachment I

 6   Ibid

 7 R1 Attachment J

 8 R 1 Attachment K

 9 R1 Attachment L

 10 R1 Attachment M

 11 R1 Attachment N

12 Smith v Canning Division of General Practice[2009] AIRC 959

13 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

14 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

15 [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

16 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]

17 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288

18 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

 19   Brisbane South Regional Health Authority v Taylor [1996] HCA 25

20 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 21   PR731759