John Namua v UGL Limited

[2020] FWC 3916

[2020] FWC 3916

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Namua
v
UGL Limited
(U2020/8560)

COMMISSIONER LEE MELBOURNE, 28 JULY 2020

Application for an unfair dismissal remedy – extension of time refused.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 21 July 2020.

[2] Mr John Namua (the Applicant) commenced employment with UGL Limited (the Respondent) on or about 29 October 2018 and was employed in a position of HSEQ lead where he led a team of quality and safety advisors.  The reason given by the Respondent for the decision to terminate the Applicant's employment was that the termination was a genuine redundancy and the role has not been replaced. 

[3] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) and that application was lodged on 22 June 2020. The application was filed outside of the statutory timeframe.  Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.  The Applicant's employment was terminated by the Respondent with effect from 12 May 2020.  Based on the termination date taking effect from 12 May 2020 the application for a remedy should have been lodged by no later than 3 June 2020.  The application was therefore lodged outside of the time described.  The application was made in effect 20 days after the last date in which it could have been made. 

[4] The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[5] Before dealing with the evidentiary matters let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act the statute allows me to allow a further period but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion. The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:- the reason for the delay; whether the Applicant first became aware of the dismissal after the date it took effect; any action taken by the Applicant to dispute the dismissal; prejudice to the Respondent including prejudice caused by the delay; the merits of the application and fairness as between the Applicant and other persons in a similar position.

[6] Each of the matters need to be taken into account in assessing whether there are exceptional circumstances.  The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.  The individual matters might not, viewed in isolation, be particularly significant so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 1 

[7] Briefly, 'exceptional circumstances' are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. 2 I must be satisfied that taking into account s.394(3) of the Act that there are exceptional circumstances. I now consider these matters in the context of the application.

[8] Firstly, the reason for the delay.  The Act does not specify what reason for delay might tell in favour of granting an extension.  However, decisions of the Commission have referred to an acceptable or reasonable explanation.  The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances and a credible explanation for the entirety of the delay will usually weigh in the Applicant's favour, however all of the circumstances must be considered. 3

[9] In this matter the Applicant has made a statement which is given as sworn evidence where he has set out the reasons in the statement dated 15 July 2020 for the delay.  The first part of those reasons include that it had taken the Applicant time to initially digest the news of his dismissal, by battling with it mentally given the circumstances where he had to serve the notice period facing colleagues at work and that that was an added mental burden, knowing that he was being retrenched while still being asked to conduct normal duties and handovers. The Applicant described this as:

“an act which I embraced with a humility but with a good degree of hurt but also delay in considering an unfair dismissal claim.”

[10] The Applicant goes on to say that in thinking about the way he was dismissed during the first three weeks after finishing off his notice period on 12 May 2020, that he decided to look up the Fair Work Australia website for guidance of whether the reasons that he had were worthy of putting a claim for reasons of principle.  I asked the Applicant when he decided to look up the Fair Work Australia website.  His evidence was rather vague on that point and he said that it was on or around 26 May 2020 but ultimately he wasn't very sure. 

[11] Subsequent to looking at the Fair Work Australia website the Applicant's initial evidence was that he tried several times to lodge an online application but to no avail because it kept getting timed out.  That is, the system would expire before he had lodged his application. 

[12] During the hearing the Applicant clarified that it wasn't several times that he attempted this but rather, twice and the indications are that this caused frustration and was part of the reason for the delay in having another attempt at the online application, but as I say, it appears that the Applicant made two attempts. 4  Again I queried with the Applicant when the attempts were made to lodge the online applications and the Applicant didn't know when he attempted to lodge the applications on line.

[13] Further, the Applicant's evidence is that it was after he had filed his online applications that he decided to call Fair Work Australia.  Of course, there is no Fair Work Australia but it may have been the Fair Work Commission or the Fair Work Ombudsman but that's immaterial to the consideration.  When I asked the Applicant when he attempted to call Fair Work Australia his answer was that it was 21 days after the dismissal, His evidence is that there were long call queues and he was thinking about whether that was worth the effort. However, he did get through to Fair Work Australia which, as I say, would have been either the Fair Work Commission or the Fair Work Ombudsman and at that time he was told that he could download the application form and send it via email. Following this he filled out the application located in his evidence and submitted online.  I note that while the Applicant was not sure of when he spoke to Fair Work Australia his evidence was that it was a week or two after speaking to Fair Work Australia that he'd downloaded the form and sent it to the Commission.  There was no satisfactory explanation for that delay.

[14] Taking into account the evidence about the reason for the delay, essentially the position is this.  The Applicant has spent the bulk of the 21 days available to lodge a claim within the time period digesting the news of his dismissal which was a mental burden to him and he was experiencing hurt as part of this.  I do note that the Applicant was advised of his dismissal four weeks before it took place and that he had to work out his notice period.  In any case this part of the reason is not an acceptable reason.  It is common for those dismissed to feel a sense of hurt and mental stress.  But the fact that they do so without something more is not an acceptable reason for the delay.

[15] As to the difficulties of lodging online, the Applicant was vague about when that occurred, and as I say, he was also very vague in his evidence about when he called Fair Work Australia. Nevertheless, I accept the Applicant's evidence that he made two attempts, not several as he originally stated, to lodge the application online.  However having become aware after talking to Fair Work Australia, again either the Fair Work Ombudsman or the Fair Work Commission, that he could download the form he took another week or two to complete it and send it to the Fair Work Commission There is no reason provided as to why it took such a significant period of time for the Applicant to lodge the application after that phone call to Fair Work Australia.

[16] In summary I accept that the difficulty in filling in the forms electronically was an acceptable reason for what could only be a minor delay, however the application is 20 days late.  Overall, taking into account all of the circumstances I am not satisfied the Applicant has provided an acceptable explanation for the delay and, to be clear, other than the minor delay that would have been caused by the difficulty in uploading the online forms.  Taking into account this factor it is a matter that weighs against the Applicant in this case.

[17] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 14 April 2020 that his employment would end on 12 May 2020.  The Applicant was well aware that the dismissal would take effect four weeks before it took effect and taking into account that factor, that is a factor that weighs against the Applicant in all of the circumstances.

[18] Turning to the next matter, that is action taken by the Applicant to dispute his dismissal, it is apparent on the evidence of the Applicant and this was corroborated by Mr Patrick Ryan for the Respondent that the Applicant did write to the Employer during the notice period and in effect, contested the dismissal.  The Applicant offered alternatives to his redundancy including offers to reduce his hours and so on, and those requests were responded to by the Employer.  That correspondence wasn't provided to the Commission but it was common ground between Mr Ryan and Mr Namua who gave evidence before me today that that exchange occurred and I accept that it did. There was also a further exchange around 18 June 2020, well after the dismissal had taken effect where the Applicant made inquiries as to whether or not the client of the Respondent or the Respondent itself was aware prior to the advent of COVID-19 that his position was going to be made redundant. 

[19] Taking into account all the circumstances around those actions taken by the Applicant to dispute his dismissal I accept that he did take some actions to dispute his dismissal, and taking into account that factor, that is a matter that weighs in favour of the Applicant.

[20] Turing to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.  In this matter the Respondent submitted that there would be some prejudice to the Respondent in the event the matter proceeded, however I'm not satisfied that there would be any significant prejudice to the Employer beyond a normal prejudice that would flow from the fact that the application has been made.  In the circumstances consideration of this matter is a neutral consideration in the circumstances.

[21] As to the merits of the application, in cases such as this where the substantial merits of an application are not fully examined into or agitated it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant's case at its most favourable.  On that point the position of merits can be simply put.  The Applicant does not contest that the position he occupied is no longer required.  However his position is that the dismissal was not a genuine redundancy as it was reasonable in all the circumstances to redeploy him into an advisor position.

[22] The key to this is the argument that the Applicant put in his Form F2 document in answer to question 3.2, why the dismissal was unfair where the Applicant said, 'With efforts to build a team onsite I had just recruited two new safety advisors without an inkling that my position was going to be made redundant.  Had management advised me of the intended action we could have discussed alternate options that could have still had him in employment, or words to that effect.

[23] However the Respondent was clear through the evidence of Mr Ryan today that there was no advisor position available at the time the decision was made to make the Applicant's position redundant that he could have been redeployed into.  That is, there was no advisor position.  To the extent that the Applicant relies on an argument that he should have been warned that he was going to be made redundant in order that he could then not recruit to a position or positions to which he could have been redeployed, I understand the Applicant's desire that is what should have occurred.  However it did not.  The situation at the time he was advised he was to be made redundant as a result of COVID-19 it is not apparent, and I stress, apparent, that there were any positions which it would have been reasonable in all the circumstances to redeploy him into.

[24] Finally, I note that it is common ground that there was no Modern Award or Enterprise Agreement that covered or applied to the Applicant and therefore there was no consultation provision that would be relevant to a consideration of any redundancy.  Therefore taking into account all of the matters around merits to the extent that they are known to me, given as I said the substantial merits are not fully examined into or agitated, my assessment is that having considered the merits and making an assessment of the merits based on all of the material that is available to me it seems to me therefore that the claim is, on a preliminary assessment basis, a weak claim.  That's not to suggest it will fail but as the facts as to the availability of alternative roles is not known to me and that that's really the basis upon which the Applicant is asserting that the dismissal was unfair, I'm not in the position to say that this would be a factor that would weigh against the Applicant and so in the circumstances consideration of the merits factor is a matter that is a neutral consideration.

[25] As to fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts.  However, this consideration is concerned with the importance of the application of consistent principles and cases of this kind, thus ensuring fairness as between the applicant and other persons in a similar or like position.  This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission.  It may also relate to the position of various employees of an employer responding to an unfair dismissal application.  Neither party put any submissions on this issue, nor did any parties bring to my attention any relevant decision of the Commission which is in turn similar to the facts in this case, or whether the Commission granted an extension of time or found exceptional circumstances on facts that are similar to the facts before me.  Consequently, that matter is a neutral consideration in the present circumstances.

[26] In conclusion statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the parliament's intention that rights should be exercised promptly so as to bring about certainty.  Time limits serve to balance the right to bring an action against the desirability for prompt action and certainty.  The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party in this case in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances the right to bring the action would be lost.  A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period.

[27] Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period.

[28] As I have indicated in considering the reasons for the delay that is a factor that weighs against the Applicant.  Whether the Applicant first became aware of the dismissal after it took effect also weighs against the Applicant.  Actions that were taken by the dismissal weighs in favour of the Applicant.  As to prejudice that's a neutral consideration, as is merits and fairness. 

[29] Taking into account all of the factors I am not satisfied that the fact that the applicant did take some action to dispute the dismissal which does weigh in favour of a finding exceptional circumstances and allowing a further period is such that it outweighs the factors that weigh against granting such an extension.

[30] In those circumstances as I have indicated I am not satisfied that there are exceptional circumstances and therefore there is no basis to consider whether I should exercise my discretion to extend the time allowed for making the application and the extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed and an order to that effect was separately issued in PR721300.  

COMMISSIONER

Appearances:

Mr J Namua of his own behalf
Mr P Ryan for the Respondent

Hearing details:

2020
Melbourne
21 July

Printed by authority of the Commonwealth Government Printer

<PR721285>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 4   PN110 – PN111.