Joanne Boudaher v Lateral Estate Pty Ltd

[2020] FWC 5025

[2020] FWC 5025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Boudaher
v
Lateral Estate Pty Ltd
(U2020/10106)

COMMISSIONER JOHNS SYDNEY, 17 SEPTEMBER 2020

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Joanne Boudaher (Applicant) a further period for lodgement of her application for an unfair dismissal remedy. The relevant circumstances are as follows:

a) the employment was terminated by Lateral Estate Pty Ltd (Respondent) on 30 March 2020 by reason of redundancy;

b) the Applicant completed and lodged her F2 application on 23 July 2020,

c) the application was, therefore, filed 115 days after the employment was terminated;

d) that being 94 days after the 21-day time limit provided for in the FW Act.

[3] In her F2 application the Applicant acknowledged that her application was filed late. Ms Boudaher explained the delay as follows:

“I have recently made aware 2 new employees have commenced in my team, I was not offered any position in the company or job keeper.”

The jurisdictional objection

[4] Of its own motion the Commission raised the out-of-time issue with the Applicant. On 30 July 2020 the Applicant further explained the delay as follows:

I only found out that my redundant position was replaced the day I raised the claim which was 23/07/2020. … my “unofficial position” was made redundant and backfilled within 3 months.

…. I have looked on their website and have searched their “meet our team” and have realised that one of the new employees is the niece of the managing director who was an employee many years ago and left the company. ….

I accepted the redundancy under the conditions that there was no upcoming work due to the COVID-19 crisis. If this was the case how and why have Lateral not offered me my position back but have replaced the position within 2-3 months. …. The role I was made redundant from was in the leasing department, we both share the title of Property Managers along with the same job description. Lateral currently have 400+ units which they lease out and are currently in the progress of releasing a further 150 for lease.

….

I was employed by Lateral for 12 years and was a dedicated employee who took up any challenge they gave me and never caused grief or complained.

I am aware that “Lateral” has multiple sister company which all fall under the same owners/directors and are in the same industry.

…. In the event that Lateral claim that the new employees are employed by 1 of the sister companies why wasn’t I offered one of these role. I am confident that these roles are property managers for 1 of the Lateral companies.

….

[5] Because the Applicant continued to press her application for an extension of time it became necessary to program the matter for hearing.

[6] On 20 August 2020 the Applicant filed a witness statement.

[7] On 24 August 2020 the Respondent filed a Form F3 – Employer response to unfair dismissal application. The Respondent contended that,

“The Respondent terminated the Applicant’s employment as her position was redundant.

Specifically, the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational environment and five, due to the impact of COVID-19, which caused significant reductions to the Respondent’s upcoming pipeline of work.”

[8] In it’s Form F3 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect. It then made submissions (Attachment A) in answer to the witness statement filed by the Applicant.

[9] The hearing occurred on 25 August 2020. At the hearing the Applicant represented herself. The Respondent was represented by Luke Scandrett, Senior Associate with Landers & Rogers. I granted Mr Scandrett permission to represent the Respondent pursuant to section 596 of the FW Act because I was satisfied that the matter was invested with complexity and I would be assisted in the efficient conduct of the matter if I granted the Respondent permission to be represented.

[10] In coming to this decision, I have had regard to the materials filed in advance of the hearing and at the hearing.

Legislative scheme

[11] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s394(3) of the FW Act:

(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.

[12] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  4

Facts leading up to and relating to the dismissal

[13] The following matters were substantially agreed or not contested. Accordingly, I make the following findings of fact:

a) On 31 March 2008 Ms Boudaher commenced employment with the Respondent. Over the course of her employment she was employed in various roles as follows:

i. 2008 – 2009, Receptionist;

ii. 2009 – 2011, Office Management;

iii. 2012 – 2014, Executive Assistant;

iv. 2014 – 2019, Contracts Administrator in the Contracts Administration Team (with a period of maternity leave from July 2018 – February 2019); and

v. 2019 (on her return from maternity leave) – March 2020, Leasing Administrator within the Property Management Team.

b) The Applicant undertook courses and professional development during the course of her employment.

c) At some point around March 2020 the Respondent made a decision to make redundant the Leasing Administrator role.

d) COVID-19 had an impact on the Respondent’s business.

e) On 30 March 2020, without any prior notice, the Applicant was advised that the position of Leasing Administrator had been made redundant and that her employment was being terminated with immediate effect.

f) At some point after the termination of the Applicant’s employment the Respondent employed:

i. a Property Manager, Ms Noeng, for the period 20 July 2020 – 20 November 2020;

ii. a Leasing Executive, Ms He, on a part-time basis.

g) On 23 July 2020 the Applicant learned of the hiring of Ms Noeng and Ms He.

h) Also on 23 July 2020 the Applicant commenced the present application.

Consideration of s.394 criteria

Paragraph 394(3)(a) - The reason for the delay

[14] It is agreed between the parties that there were 115 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[15] The Applicant says the reason for the delay was associated with her first accepting that her position was made redundant because of the impact of COVID-19, but then later discovering that there had been two new hires shortly after her employment was terminated. The Applicant lodged the present application on the same day that she learned about the new hires. There was no delay on behalf of the Applicant after she learned of this new information.

[16] Often times an employee cannot judge the genuineness of the redundancy their employment is the victim of. Later in time acquired knowledge of a replacement employee necessarily occurs later in time. Ordinarily, this renders the circumstances out of the ordinary course, or unusual, or uncommon. Certainly, they are special.

[17] The Respondent contends that more is required than later in time acquired knowledge of a new hire. It relied upon the decision in Tran v Teleco Services Australia. 5 That case involved the applicant lodging an unfair dismissal application after he “was informed that the Employer had hired a person in “the same or substantially the same [role] as I did””. In that matter the Commissioner held that,

“[12] The Applicant does not provide any documentary material to demonstrate that the role is the “same or substantially the same”. It is Mr Tran’s “understanding”, from a third party, that the new position is the “same or substantially the same”.

[18] The Commissioner in Tran’s Case referred to the decision of Deputy President Sams in Rodney Cross, Karin Thompson and Denis Payne v Bananacoast Community Credit Union Ltd T/A BCU 6 . At paragraph [51] his honour held that:

“[51] In my view, this is a rare and unusual case. I am satisfied that an honestly and reasonably held belief that an earlier redundancy may not have been genuine, and the belief is based on plausible information, may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act...”

[19] The Commissioner in Tran’s Case then noted that,

[21] … Mr Tran’s “honest and reasonable belief” reduces to what an unnamed ex-colleague has informed him.

[20] In those circumstances the Commissioner was not satisfied that Mr Tran was entitled to hold the belief he held.

[21] Trans Case can be distinguished from the facts in the present matter. The Applicant’s belief is based on more than the word of “an unnamed ex-colleague”. I am satisfied that the Applicant has an honestly and reasonably held belief that her redundancy may not be genuine. She only discovered the same when she became aware of the new hires. It is not just relevant to an assessment of s.389(1)(a), but also s.389(2).

[22] Therefore, this factor weighs in favour of granting the Applicant a further period to make her application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[23] It is uncontested that the Applicant first became aware of the dismissal on 30 March 2020. At the time the Applicant accepted the Respondent’s explanation of the reason for the termination of her employment.

[24] Therefore, this factor is a neutral consideration.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[25] The Applicant took no action to dispute the dismissal when it occurred. This is because she believed that her position was genuinely being made redundant.

[26] However, when she first learned of new hires into roles she thought she held or should have been offered she immediately filed an unfair dismissal claim.

[27] The action taken by the Applicant to dispute the dismissal once she learned of the new hires weighs in favour of granting the Applicant a further period to make her application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[28] The Respondent contends that,

50. In Cann v Rockdrill, 7 the respondent submitted it was dealing with a downturn in the mining industry and would be significantly prejudiced if it was now required to deal with an unfair dismissal application pursued by the applicant.8 The Commission in Cann found exceptional circumstances had not been made out, ruling in favour of the respondent.

51. In a similar manner, the Respondent in these proceedings would be unfairly prejudiced due to the current economic climate imposed by COVID-19, if it found itself in a position where it is required to defend an unfair dismissal application. The Respondent submits that its work has been significantly affected by the pandemic, with two of its upcoming three projects being placed on hold. The downturn in the market has also resulted in restrictions on new developments commencing.

52. Further, the Applicant's delay of 94 days in bringing this application is significant and causes prejudice to the employer in considering and providing evidence of events which occurred months ago.

53. The Respondent submits that the prejudice caused to it by the Applicant's application, and her delay in making the application, weigh in favour of not granting the Applicant an extension of time.

[29] I reject the submissions of the Respondent. First, there is no evidence about the impact of COVID-19 on the Respondent’s business. Consequently, I am not satisfied that a downturn in business means that the Respondent cannot defend an unfair dismissal application or would be prejudiced in being required to do so.

[30] Secondly, the delay is not so long that there is likely any prejudice to the Respondent when it comes to being able to assemble the necessary evidence to defend its position. It is not as though this is a matter were so much time has passed that the relevant witnesses are no longer with the company or the relevant documents are no longer in existence. The Respondent lead no evidence about either.

[31] This is a case where the usual prejudice arises from the delay. There is no special prejudice.

[32] The prejudice asserted by the Respondent is a neutral consideration.

Paragraph 394(3)(e) - The merits of the application

[33] In the matter of Kornicki v Telstra-Network Technology Group 9the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 10

[34] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[35] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[36] The substantive factual contest between the Applicant and the Respondent is whether her position was genuinely made redundant. This is not a factual dispute that can be resolved at a jurisdictional hearing. A genuine redundancy will arise when s.389 of the FW Act applies. It provides as follows:

Meaning of genuine redundancy

(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer's enterprise; or

(b) the enterprise of an associated entity of the employer.

[37] If the Applicant can establish, to the satisfaction of the Commission, that her alleged redundancy was a sham, 11 then she may well be able to establish that the termination of her employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 389 of the FW Act, to find that the termination was not a genuine redundancy, and, ultimately, was unfair because it was either harsh, unjust or unreasonable.

[38] Consequently, for present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[39] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting her a further period to make her application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[40] The Respondent contended that,

62. The Respondent made several other employees redundant at around the same time as the Applicant.

63. Similarly to the Applicant, the Respondent has not reinstituted or refilled those other former employees' roles.

64. There is no greater merit to the Applicant's application than there would be to any other former employee of the Respondent making an unfair dismissal application in relation to their redundancy which occurred at the same time as the Applicant. For completeness, the Respondent denies that there is any merit to the Applicant's application.

65. The Respondent notes that none of the other former employees made redundant at around the same time as the Applicant have made an unfair dismissal claim.

66. The Respondent submits that this is otherwise a neutral factor in these proceedings.

[41] I agree that this factor is a neutral factor in the proceedings.

Conclusion

[42] When the s.394(3) factors are considered in totality, I am satisfied that they demonstrate circumstances that are out of the ordinary course. They are unusual. They are also special. Consequently, they are exceptional circumstances.

[43] For the reasons set out above, on balance, the Commission is satisfied that there are exceptional circumstances warranting the Applicant being allowed a further period for her application to be made (i.e. being granted an extension of time to lodge his application).

[44] An Order to this effect will be issued with this decision granting her an extension to 24 July 2020.

[45] The matter will then be listed for a mention and or directions hearing and further programming to deal with the second jurisdictional objection (i.e. that the termination was a genuine redundancy).

COMMISSIONER

Appearances:

J Boudaher, Applicant
L Scandrett, Senior Associate, Lander & Rogers, for Lateral Estate Pty Ltd

Hearing details:

2020.
Sydney (by video):
25 August.

Printed by authority of the Commonwealth Government Printer

<PR722900>

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3 [2011] 203 IR 1

 4   Ibid [13]

 5   [2014] FWC 4525

 6   [2012] FWA 7681

 7   [2014] FWC 701

 8   At [22]

 9   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 10   Ibid.

 11   Because her position was still required (s.389(1)(a)) or that she could have been reasonably redeployed into either the Property Manager or Leasing Executive roles.