Jo-Anne Scullin v Clough Projects Pty Ltd

[2021] FWC 1448

[2021] FWC 1448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jo-Anne Scullin
v
Clough Projects Pty Ltd
(U2020/15618)

COMMISSIONER WILLIAMS PERTH, 18 MARCH 2021

Application for an unfair dismissal remedy - Out of time application.

[1] Ms Jo-Anne Scullin (Ms Scullin 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 Clough Projects Pty Ltd.

[2] Ms Scullin’s application says she was notified of her dismissal the date it took effect on 16 October 2020.

[3] Ms Scullin made this application on 4 December 2020.

[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. Ms Scullin made this application 50 days after her 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 her 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 provided a written submission and a supporting statutory declaration.

[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] Ms Scullin’s application explains as follows,

“I initially accepted that my redundancy was a genuine redundancy. I was notified of my redundancy on 16 October and in lieu of one months’ notice, it was effective on 16 October. However, on 5 December I discovered that my former role has been advertised on Seek and Linkedin. This listing appeared on 4 December. The title is identical except ‘Advisor’ has been amended to ‘Officer’, presumably to obtain the same resource at a lower rate. The description of the duties and reporting structure is the same. I believe my former employer waited until my statutory entitlement to make any claim had expired before listing the role.” (sic)

[10] The Applicant in her supporting submissions explains that she was employed as a Commercial & Insurance Advisor by the Respondent in January 2019.

[11] Her position reported to the Commercial & Insurance Manager.

[12] She says at a meeting on 16 October 2020, the Commercial & Insurance Manager and Human Resources Manager advised the Applicant that her termination was due to the poor financial performance of the company in the 2019/2020 financial year.

[13] The letter confirming the redundancy indicates that it was the result of, “continued overhead reduction in the Australia and Asia Pacific Division, and an overall decrease in workloads within the organisation”.

[14] The Applicant knew the Respondent had executed a number of redundancies shortly after the end of the 2019/2020 financial year.

[15] The Applicant says she initially accepted the redundancy based upon the Respondent’s assurances that the termination of the role was solely due to the poor financial performance of the business.

[16] On 4 December 2020, the Applicant saw a Seek advertisement for a Commercial & Insurance Officer at the Respondent’s business

[17] The Applicant says the advertisement shows the Officer role will report to the Commercial & Insurance Manager, just as her position did, and shows that many of the responsibilities of her former role were included in the responsibilities of the new Officer role.

[18] The Applicant submits that this advertisement indicates there is a continuing operational requirement for her former role. She submits her former role will still be performed by employees in the Respondent’s business and assumes that both the Commercial & Insurance Manager and Commercial & Insurance Officer will perform aspects of the Applicant’s former role.

[19] The Applicant explains that upon reviewing the Officer advertisement, she immediately submitted this application.

[20] In her submission, the Applicant accepts that the Respondent’s business reported a substantial financial loss for the 2019/2020 financial year and that resourcing reviews would have been conducted for various divisions and skill pools.

[21] The Applicant’s submission explains that as part of the insurance renewal process, she had been privy to operational information about the business. She was aware that a number of the Respondent’s projects performed poorly, and that the Respondent failed to win a number of high-value contracts during that period.

[22] From the Applicant’s view, I understand why she considers becoming aware of the advertised Officer position is an acceptable reason for the delay in making this application. Because of her subjective view of this information, she changed her mind about her termination being a genuine redundancy.

[23] The Applicant’s realisation on seeing the advertisement, that some duties which had formed part of her redundant position were still required to be done by the Respondent, does not however mean her redundant position was still required. The reallocation of duties that made up one employees’ position to other employees is a commonplace change in the operational requirements of a business that legitimately results in a position being made redundant.

[24] This was explained by Senior Deputy President Hamberger in the matter of Kekeris v A. Hartrodt Australia Pty Ltd t/as A.Hartrodt as follows:

“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists. The evidence clearly discloses that none of the supervisory positions that existed prior to the restructure survived. In particular, the applicant’s job of supervisor of sea freight import and export no longer exists.”  1

[25] In this case, the surrounding circumstances which the Applicant knew of at the time of her termination, such as the Respondent’s poor financial circumstances being the reason for the Respondent making the Applicant’s position and a number of other positions redundant, had not changed.

[26] The advertising of a position seven weeks after her termination, being the only new information that Applicant had, was not itself a reason to objectively conclude that her dismissal in October was not a genuine redundancy as she had originally accepted.

[27] Finally, there is no probative evidence supporting the speculation that the Respondent delayed advertising this role until after the 21-day time limit to make an unfair dismissal application has passed.

[28] 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

[29] The Applicant, Ms Scullin, became aware of her dismissal on the day it took effect, 16 October 2020.

Any action taken by the person to dispute the dismissal

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

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

[31] 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

[32] The Applicant has provided comprehensive submissions in support of her being permitted further time to make her application. As part of her submissions, she has responded in detail to the Respondent’s position regarding her substantive application as detailed in their Form F3 [Employer Response].

[33] The Applicant argues that what the Respondent submits to the Commission is a workplace arrangement that involves artificially splitting her prior duties into senior and junior responsibilities. She submits that there are a number of responsibilities she performed that the Manager would need to assume in order for the Officer position to provide only junior support.

[34] I note that this is what Mr Carle Green (Mr Green), the Respondent’s Commercial & Insurance Manager, agrees will occur and it is entirely a matter for the Respondent to decide how they arrange and distribute responsibilities between employees.

[35] The Applicant also submits that the Respondent appears to have restructured her prior role solely to obtain significant cost savings, not to reflect any genuine changes to the operational requirements of the enterprise.

[36] I note that achieving cost savings is an entirely legitimate and commonplace reason for an employer to change their operational requirements. Further the Applicant at the time of her termination was aware of the poor financial circumstances of the business, which had already resulted in other positions being made redundant in an attempt to achieve overhead reductions.

[37] The Respondent also has provided a fulsome submission including a statutory declaration from Mr Green to whom the Applicant had reported.

[38] Relevantly Mr Green says that he, alongside his Manager, considered their resource requirements and identified that they would not need any support in any capacity for the period of mid-October 2020 through to February and March 2021. They also determined they would no longer need a resource at the senior level of the Applicant thereafter.

[39] Mr Green says that some parts of the Applicant’s former position are no longer required and those duties that are still required have been either taken on by Mr Green, have been distributed to two other administrative staff, or will be undertaken by the new Officer position.

[40] Mr Green states that the new Officer role will be providing much lower level general and administrative support, and this is reflected in lesser remuneration.

[41] As of 21 January 2021, Mr Green says the recruitment process for the Officer position has gone as expected and they have only just reached the position of finalising an offer to a new employee with an expected commencement date of mid-February to early March 2021.

[42] It is therefore the case that the Applicant’s former position has been vacant for approximately 4 months.

[43] Considering all the materials provided by the parties and taking into account the new information that the Respondent is recruiting to fill the advertised Officer position, my view is that the Applicant’s unfair dismissal remedy application has very little merit and is most likely to fail should it proceed to a hearing.

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

[44] 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

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

[46] 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.

[47] 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.

[48] An order [PR727854] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 7 January 2021
Respondent, 29 January 2021

Printed by authority of the Commonwealth Government Printer

<PR727853>

 1   [2010] FWA 674 at [27].