Jason Dalton v In Vitro Technologies Pty Ltd
[2023] FWC 3164
•6 DECEMBER 2023
| [2023] FWC 3164 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Dalton
v
In Vitro Technologies Pty Ltd
(U2023/9614)
| DEPUTY PRESIDENT LAKE | BRISBANE, 6 DECEMBER 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Mr Jason Dalton (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with In Vitro Technologies Pty Ltd (the Respondent).
On the Form F2 Application, the Applicant states that he commenced employment with the Respondent on 3 September 2019 and was notified of his redundancy on 30 August 2023. The dismissal was effective on 6 September 2023.
The Applicant lodged his application on 4 October 2023. The application was lodged 7 days outside the statutory time limit prescribed by s.394(2) of the Act).
The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.
Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was held before me on 21 November 2023.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:
“(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 like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]
It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6] In Giles v Coal Train Australia Pty Ltd, Vice President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]
The Respondent stated that the Applicant had a meeting with Mr Andrew Menon (IVT General Manager) on 31 August 2023 regarding a restructure given that there was insufficient work in Queensland to justify his whole role, was issued a letter on 1 September 2023 which a letter was issued clarifying the Respondent’s proposed restructure where the Respondent was consolidating roles specific to state-based responsibilities and amalgamating the Applicants tasks and duties to the existing roles within the business.
The Applicant stated that his reason for delay in filing his unfair dismissal application was that he found out that a significant part of his role was going to be performed by another employee who would need to be trained up to perform the Applicant’s current role. Further, similar roles in other states of Australia were not made redundant.
The Applicant submitted a witness statement from Mr Bou-Samra stating that he was informed on the first week of September that one of the Applicant’s main previous responsibilities would be undertaken by another employee. Mr Bou-Samra was not called to give evidence. If accepting Mr Bou-Samara’s statement, the Applicant would have been aware of a question of genuine redundancy from until at least 10 September 2023. It does not explain the delay of the Application until 4 October 2023.
The Applicant further states that the Respondent was motivated to make the Applicant redundant as his partner had also been made redundant from the Respondent. The Applicant did not want to provide further information regarding who informed him that his role was not redundant because of the fear that they would be put at risk with the Respondent.
In cases of genuine redundancy, where a redundant employee finds out that there were not genuinely made redundant at a later date can be a valid reason of delay.[8] However, it is up to the Applicant to provide this evidence to establish the nature and impact of this circumstance. The Applicant although making a series of allegations regarding the lack of the restructure being genuine did not provide particulars on who he had talked to about the unfair dismissal process or evidence of this fact which would have supported his extension of time application.
A high bar is in place for out of time applications for a purpose and in this matter assertions without probative evidence does not support the Application being allowed an extension.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant was aware of his dismissal on 30 August 2023, prior to it taking effect on 6 September 2023. The Respondent submitted that they consulted with the Applicant regarding his potential redundancy since 31 August 2023, and that he was advised in writing on 4 September 2023.
If the Applicant accepts the redundancy and finds that their role is still being performed, the date where the person first became aware of the dismissal may be after the 21-day timeframe where exceptional circumstances could be found. However, the Applicant had known or ought to have known from the statement of Mr Bou-Samara regarding which of his duties were being performed.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not take any action to dispute the dismissal.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent did not address that an extension could potentially cause a degree of prejudice. I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[9] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“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.”
Without a hearing, it is difficult to consider the merits of the Applicant’s claim. On a preliminary view, it appears that the Applicant will have difficulties in establishing that his role was not made genuinely redundant on the basis that his particular role was no longer required due to operational requirements. The test of genuine redundancy is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form.[10] It is still a genuine redundancy if some of the former duties of the Applicant’s role have been distributed to others.
I consider this factor as a neutral consideration as it is sufficient for the Commission to establish the substantive application was not without merit.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Applicant submitted that he has been treated unfairly compared to his colleagues who continued in employment with the Respondent. This factor takes into account other Applicants who have lodged with the Fair Work Commission.
The parties have not provided material in support of this consideration, and I consider this factor be neutral.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
Appearances:
J. Dalton for the Applicant.
M. Bollaert for the Respondent.
Hearing details:
21 November 2023.
Hearing via Microsoft Teams.
Brisbane.
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at [38].
[8] Toledo, Rodny v Foxtel[2016] FWC 2450 (Watson VP).
[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[10] Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488, 17.
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