Lillo Aiello v Dwp Australia Pty Limited T/A Design Worldwide Partnership

[2020] FWC 5937

[2020] FWC 5937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lillo Aiello
v
DWP Australia Pty Limited T/A Design Worldwide Partnership
(U2020/13247)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 5 NOVEMBER 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This decision concerns an application by Mr Lillo Aiello (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The termination of the Applicant’s employment with DWP Australia Pty Ltd (Respondent) took effect on 29 February 2020. The unfair dismissal application was lodged on 6 October 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 21 March 2020. The application was therefore filed 199 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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 nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] 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. I now consider these matters in the context of the Application.

Reasons for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] 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. 5

[10] The Applicant gave the following explanation for the delay in his unfair dismissal application:

“The entire Australian finance team which I lead [sic], was advised that their roles were being made redundant and that the positions would move to our Bangkok head office. Our redundancy letter also advised that we may be required to work till end of February 2020 to assist with the transition and training of staff in Bangkok.

During the middle of December 2019 a contractor was appointed in the Newcastle office to ensure all processes were documented and able to be handed over to Bangkok. Whilst my staff finished up in December 2019, I stayed on to assist with the handover. During this time it was found that the roles of the Australian finance team were not being absorbed by existing staff in Bangkok, instead they were hiring new staff and we were required to train the new staff. At the same time a new Finance Manager was hired and commenced work from our Melbourne office in early January 2020. I argued that this role was essentially my position at a cheaper rate and if that was not the case, could have been filled by one of my other team members, regardless of this, the contractor and I were then expected to train this new Australian employee as well as fulfil the finance role as Bangkok had no staff to take over.

I was then asked by the Australian Regional Manager if I could potentially stay till the end of March 2020 as the transition had not gone as expected, to which I agreed, however also asked for advance notice if things were to change. As the end of February 2020 approached, I was getting mixed messages from Bangkok who believed I was finishing up in February as directed by the original Redundancy notification. I sought to clarify this with the Australian HR Manager and was unable to get a clear answer. On the evening of 27^th February 2020, I received a text advising that they would like me to stay on for another month. Given the nature of the delay and the uncertainty to the future, I declined to accept this extension.

I officially finished work the next day. I have since found out that the contractor who was appointed to document procedures is now listed on LinkedIn as the Finance Manager for DWP. Effectively my role that was made redundant.”

[11] In his submissions filed in support of his application for an extension of time, the main reason relied on by the Applicant for the delay is the fact that he was unaware that a person by the name of Mr Nathan Thrum, who the Applicant says was originally employed by the Respondent as a contractor to document particular procedures, has continued employment with the Respondent in the role the Applicant was made redundant from. The basis of the Applicant’s belief in this regard is Mr Thrum’s LinkedIn profile, which describes Mr Thrum as the Finance Manager of DWP. The Applicant saw Mr Thrum’s LinkedIn profile on 6 October 2020 and lodged his unfair dismissal application in the Commission later that day.

[12] The Applicant says that as soon as he became aware of Mr Thrum’s ongoing role as Finance Manager with the Respondent, he immediately lodged his unfair dismissal application because he believed that the Respondent had been deceitful in claiming Mr Thrum’s role was to document procedures when Mr Thrum’s role was that of Finance Manager.

[13] The Respondent denies that Mr Thrum is, or has been, working in the Applicant’s role of Regional Finance Manager. The Respondent says that it engaged Mr Thrum as a temporary hire directly through a labour hire agency in the period between 9 December 2019 and 24 July 2020. The Respondent says that Mr Thrum is not, and has never been, an employee of the Respondent or any of its associated entities. It submits that the brief for Mr Thrum’s temporary assignment was to provide oversight and documentation of the transition of Australian finance team work responsibilities to the group’s head office finance team in Bangkok.

[14] I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the extensive delay. First, it is clear from the part of the Applicant’s unfair dismissal application set out in paragraph [10] above that he was of the view, prior to his employment with the Respondent coming to an end, that there had not been a genuine redundancy of his position of Regional Finance Manager. Secondly, the basis for the Applicant’s belief that Mr Thrum was working in the Applicant’s previous position was Mr Thrum’s LinkedIn profile, not any communication or representation from the Respondent. The Applicant viewed Mr Thrum’s LinkedIn profile on 6 October 2020. In my view, it is not a reasonable or acceptable explanation for a long delay in filing an unfair dismissal application for an applicant to look at a former work colleague’s LinkedIn profile many months after their dismissal and use the information contained in that profile as the reason for the long delay in filing their unfair dismissal application. It is not uncommon for information contained on a LinkedIn profile to be out of date or inaccurate, as is evident in this case from (a) the concession by the Applicant that, as at 22 October 2020, his LinkedIn profile stated that he was the “Regional Finance Manager at dwp Australia Pty Limited” and (b) the fact that Mr Thrum ceased working for the Respondent in July 2020, yet in October 2020 his LinkedIn profile stated that he was “Finance Manager” for the Respondent.

[15] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[16] I have found that the Applicant’s dismissal took effect on 29 February 2020. He was aware of his dismissal at that time. The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[17] There is no evidence to suggest that the Applicant took any action to dispute his dismissal. This factor does not weigh in the Applicant’s favour.

Prejudice to the employer

[18] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[19] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[20] The Respondent says that it dismissed the Applicant because it no longer required anyone to work in the position of Regional Finance Manager. It submits that the duties of the Applicant’s position have been absorbed across existing positions within both Australia and in the Respondent’s head office entity in Bangkok. The Respondent further contends that there were no suitable alternative positions available for the Applicant, although it accepted in its response to the unfair dismissal application that “Bangkok can be an unstable employment market and as such there was turnover within pre-existing finance team roles which unfortunately added a level of inefficiency in the training of the staff responsible”. The Applicant contends in his unfair dismissal application that his dismissal was unfair because his role was never redundant; a contractor is now employed in the same position. The Applicant also says that he was prepared to relocate to take up a new role in Bangkok or elsewhere, but he was not given any redeployment options to consider.

[21] I consider that the Applicant has at least an arguable case that his dismissal was not a genuine redundancy within the meaning of the Act on the basis of potential redeployment opportunities for the Applicant in Bangkok in the period from when he was notified of the redundancy of his position on 19 November 2019 until the termination of his employment on 29 February 2020. The Respondent’s acceptance of there being a “turnover within pre-existing finance team roles” suggests that potentially suitable roles in Bangkok should have been discussed with the Applicant in the period from 19 November 2019 until 29 February 2020. Whether the Applicant would have been willing to accept any such role is not known and more evidence would be required to form a final view about the reasonableness of steps taken by the Respondent to redeploy the Applicant. In addition, the Applicant’s contention that his role was never in fact redundant would need to be examined in detail at a final hearing. In all the circumstances, I consider the merits of the Applicant’s claim to weigh in favour of his application for an extension of time.

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

[22] 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. However, cases of this kind will generally turn on their own facts.

[23] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[24] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Aiello on behalf of himself
Ms Pratt, Regional Human Resources Manager of the Respondent,on behalf of the Respondent

Hearing details:

2020.
Newcastle (by telephone):
3 November.

Printed by authority of the Commonwealth Government Printer

<PR724307>

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

 2   Ibid

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

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