John Byrnes v Rexel Electrical Supplies Pty Ltd

[2015] FWC 5776

[2015] FWC 5776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Byrnes
v
Rexel Electrical Supplies Pty Ltd
(U2015/6197)

COMMISSIONER BISSETT MELBOURNE, 20 AUGUST 2015

Application for relief from unfair dismissal - extension of time.

[1] Mr John Byrnes has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Byrnes was employed by Rexel Electrical Supplies Pty Ltd (Rexel). His employment was terminated on 4 May 2015 for reasons of redundancy.

[2] Mr Byrnes lodged his application for unfair dismissal on 1 July 2015, 58 days after the date of the termination of his employment and therefore 37 days beyond the statutory time limit specified in the Act for making such an application.

[3] Mr Byrnes is seeking an extension of the time period within which his application can be made.

[4] The Commission can extend the time for making an application for unfair dismissal. Section 394(3) of the Act states:

394 Application for unfair dismissal remedy

(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.

[5] I have considered each of these matters and for the reasons given below have determined that there are exceptional circumstances such that an extension of time should be granted.

Reason for the delay

[6] Mr Byrnes was advised that his employment was terminated by reason of redundancy. He says that, as a number of other employees left and were not replaced around that time, he considered that Rexel could easily refute any claim he had to unfair dismissal. Mr Byrnes also says that he thought he would be easily able to gain new employment.

[7] Mr Byrnes says that he questioned his dismissal when, on 30 June 2015, he saw a position advertised (placed on 29 June 2015) with Rexel in Western Australia (WA). The position advertised was not unlike the position he had occupied and from which he had been made redundant. It indicated to him that Rexel was not reducing staff due to economic circumstances but was, in fact, recruiting to positions similar to that he had held. It was then he realised that it was likely his dismissal was unfair and was not a genuine redundancy. He says he lodged his application on 1 July 2015, as soon as possible after seeing the advertisement.

[8] Rexel says that the advertising of the position was a mistake, the advertisement was placed in error and it is not recruiting to any such position in WA. In these circumstances it says that there is no acceptable reason for the delay in Mr Byrnes making his application for unfair dismissal.

When the person first became aware of the dismissal

[9] Mr Byrnes became aware of his dismissal on 4 May 2015.

Any action to dispute the dismissal

[10] Mr Byrnes says that he took no action at the time of his dismissal to dispute it as he thought Rexel could show that he was redundant. On seeing the position advertised on 30 June 2015 he then realised perhaps he was not redundant and took immediate action to lodge his application with the Commission.

Prejudice to the employer

[11] Mr Byrnes says that there would be no prejudice to the employer if his extension of time was granted.

Merits of the case

[12] Mr Byrnes says that he believes senior management decided they wanted him out of the company. He agrees that his sales figures were not ideal but says that, having been placed on a performance plan and with no formal feedback on the plan, after 34 days he was made redundant. Within two months of him having been made redundant he says the company was recruiting to a very similar role to his previous position at a branch office within 10 kms of where he had worked.

[13] Mr Byrnes says that not long after he was made redundant the team he worked in was shuffled to ensure that the geographical area he was responsible for was covered by the same number of staff (taking into account a newly filled position and his removal) suggesting there was, in fact, no redundancy as his work was still required to be done.

[14] Mr Byrnes also says that his dismissal was unfair because he was not offered an alternate role by way of redeployment within the company. His evidence is that an opportunity in Osborne Park was not discussed with him in the context of redundancy. He agrees that he refused a position at one stage when asked if he would like to move to an internal role, but says he was not provided with any specific details of the role. He says this was not put to him in the context of the redundancy and/or redeployment. With respect to a position in Bunbury Mr Byrnes says that this was not a full time position and again it was not discussed with him in the context of the redundancy.

[15] Mr Byrnes says that Rexel continues to advertise vacancies, some of which he could have been redeployed into. He says he would have been prepared to move interstate to keep a job and cites his history of mobility for work to support this.

[16] Mr Byrnes also says that at the time of his dismissal he was the only employee in WA made redundant. He says that the proper processes were not followed such that his redundancy may not be a genuine redundancy.

[17] Further, Mr Byrnes says that the placement of the job advertisement has put him at a disadvantage in seeking alternative employment within his field of expertise. He says that he has explained to prospective employers that he was made redundant but when they become aware of the job advertised they suspect he is not being truthful. This, he says, has damaged his prospects of gaining employment.

[18] Rexel says that Mr Byrnes was made redundant due to declining sales in WA and across the company generally.

[19] The evidence of Ms Herron for Rexel is that from 30 April 2015 until the time of hearing staffing level have declined by around 70 employees from 1170 employees. Reductions have occurred in all states.

[20] Ms Herron says that in WA there have been five redundancies in the last 3 months (including Mr Byrnes) and, in addition, many roles are not being replaced following the resignation of the occupant of the position.

[21] Whilst staff numbers have been reducing Rexel says that it has needed at times to fill sales positions where specialist skills and knowledge are required. This, it says, explains the filling of a position around the time of Mr Byrnes’ redundancy where an employee with highly specialised expertise was required. Mr Byrnes, it says, did not have the skills or industry contacts to undertake this role.

[22] Rexel says that Mr Byrnes was asked if he was interested in covering territories in Bunbury or Osborne Park which he declined. He was also asked about moving to an internal sales role which he also declined.

[23] Rexel says that at the time it made Mr Byrnes redundant there were no other vacancies available to accommodate him, although admits that it did not consider any opportunities interstate.

[24] Mr Quigley gives evidence that the advertisement in June 2015 seen by Mr Byrnes was placed by mistake. He says he thought he was being proactive in placing the advertisement but he was not authorised to do so. Once alerted to the error he says the advertisement was withdrawn.

[25] Mr Richter gives evidence that he had spoken to sales staff, generally one-on-one about the pressures on the business and highlighted the position of the company in monthly sales meetings.

Conclusion

[26] I am satisfied that Mr Byrnes has provided a satisfactory explanation for the delay in making his application. When he saw a position similar to that he had occupied advertised he immediately took steps to make his application to the Commission. The delay was caused by him understanding that he had been made redundant. The advertising of the position led him to consider that the redundancy was not genuine.

[27] I accept that the position was advertised in error. However Mr Byrnes was not alerted to that fact prior to the hearing of this application. That the position was advertised alerted Mr Byrnes to a consideration of his rights under the Act. Having been alerted he acted quickly to make his application.

[28] Substantial material as to the merits of the case was put before me. I heard evidence on the advertising of the position, general downturn in the business and discussion with sales staff about the situation of the company. Mr Byrnes, however, puts a reasonable case as to the merits of his application.

[29] On the basis of the evidence and submissions made I am not convinced, prime facie, that the redundancy was a genuine redundancy for the purposes of the Act. There appears to be an unresolved dispute between the parties as to whether or not Rexel met its obligations under the Act and any award.

[30] That Mr Richter talked to Mr Byrnes in April (before Mr Byrnes was aware he was to be made redundant) about moving to an internal sales position or that earlier in the year he had discussed with him a move to Bunbury or Osborne Park does not suggests (although I make no finding) that redeployment options with Mr Byrnes were explored at the time of the redundancy.

[31] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star 1 a Full Bench of the Commission said:

‘[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.’

[32] Considering the merits of the matter and the reasons for the delay in making his application I am satisfied that exceptional circumstances exist such that I should exercise my discretion to extend time within which Mr Byrnes can make his application. I will therefore extend the time for making his application for unfair dismissal to 1 July 2015. An order to this effect will be issued.

[33] The file will now be allocated for conciliation.

COMMISSIONER

Appearances:

J. Byrnes for himself.

V. Herron with D. Richter for the Respondent.

Hearing details:

2015.

Melbourne and Perth (video hearing):

August 13.

 1  [2011] FWAFB 975.

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