Martin Nankiville v Cinus Pty Ltd T/A McDonalds Wholesalers

[2016] FWC 4653

[2016] FWC 4653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Martin Nankiville
v
CINUS Pty Ltd T/A McDonalds Wholesalers
(C2016/3947)

COMMISSIONER WILSON MELBOURNE, 12 JULY 2016

Application to deal with contraventions involving dismissal; whether extension of time should be granted.

[1] This matter concerns an application made by Martin Nankiville for the Fair Work Commission to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Mr Nankiville’s application relates to the termination of his employment by CINUS Pty Ltd T/A McDonalds Wholesalers during February 2016, and was received by the Commission on 1 June 2016.

[2] While there is a dispute between the parties about the date on which Mr Nankiville’s dismissal took effect, his general protections application was made later than the period allowed for in the Act and an extension of time for the making of that application requires consideration even on the latest of the dates put forward as the date on which his dismissal took effect.

[3] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. While Mr Nankiville submitted that the date of effect of his dismissal was 22 February 2016, when he was informed of it, the Respondent puts forward the date of effect of his termination being about a week later, on 26 February 2016. For the reasons set out below, I find that later date to be the date of effect of Mr Nankiville’s dismissal. As a result, Mr Nankiville’s general protections application was made 75 days out of time.

[4] In this decision, I have considered whether an extension of time should be granted to Mr Nankiville for the making of his application and, for the reasons set out below, I am not satisfied that a further period should be allowed for the making of the application.

[5] In considering an application for an extension of time the Actrequires that I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application, that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 In the same legislative context it has been held that a decision as to whether to extend the time period involves the exercise of a discretion.2

[6] The Respondent, McDonalds Wholesalers, objects to the application continuing given that it was commenced after the statutory period for the making of a general protections application and that the circumstances of the matter are such that an extension of time should not be granted.

[7] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Mr Nankiville, the Applicant, and, on behalf of the Respondent, the oral evidence of Ms Ashe Perks, McDonalds Wholesalers’ Business Development Manager.

[8] I have also taken into account, so far as they are relevant, witness statements provided by two witnesses brought forward by the Applicant, both of whom were former workmates, Zeke Holton and Baden Le Cornu; neither of whom were cross-examined. Since their statements do not go directly to matters that require determination in this decision, or contain elements of hearsay, I give no weight to either statement.

BACKGROUND

[9] McDonalds Wholesalers is a transport business based in Geraldton, Western Australia. Mr Nankiville was employed by the company in the position of delivery driver from 28 February 2011. According to a reference provided to him at the time of dismissal, his role included making weekly runs to the company’s regional customers, delivering wholesale dry and chiller/freezer goods, collecting money and performing routine maintenance and cleaning duties on the company’s vehicle.

[10] In January 2016 he was required to reduce his accrued annual leave by proceeding on annual leave. The company characterise this as being a combination of him having in excess of 232 hours accrued leave as well as it being “[d]ue to the current downturn in industry”. That leave commenced on 11 January 2016 and Mr Nankiville remained on annual leave until he was terminated by McDonalds Wholesalers.

[11] A conversation between Mr Nankiville and Bradley Perks, the McDonalds Wholesalers General Manager, took place on 22 February 2016, in which Mr Perks informed Mr Nankiville that he was to be made redundant. A letter provided to him by Mr Perks and dated 23 February 2016 advised him of the following;

“Dear Martin,

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by McDonalds Wholesalers (the employer) of its operational requirements, and what this means for you.

As a result of downturn in the economy, your position is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.

Your employment will end immediately.…” 3

[12] The same correspondence advised Mr Nankiville that he would be provided with three weeks’ pay in lieu of notice and a redundancy payment equivalent to “10 weeks’ pay which is based on your 5 years of service”.

[13] A conversation between the two modified the intended date of termination and instead of Mr Nankiville leaving employment on 22 February 2016, his last day of employment with McDonalds Wholesalers was 26 February 2016. Mr Nankiville’s evidence about the circumstance includes that in the course of the conversation between the two on 22 February 2016, Mr Perks “asked me to take a further week of annual leave owing to give him time to ’accrue the funds for my severance and redundancy. I agreed to this.” 4

[14] The Respondent maintains that the date on which Mr Nankiville’s dismissal took effect was 26 February 2016.

[15] Mr Nankiville also puts forward that at the time he was required to take accrued annual leave in January 2016, he had been told the following by Mr Perks;

“Further into the same conversation Mr Perks then informed me, in what I believed to be a caring and regretful manner, that ‘while I was on holiday, if the opportunity arose for me to take another job, that I should consider it as the future of the transport side of McDonalds Wholesalers was not assured.” 5

[16] Sometime after leaving the employment of McDonalds Wholesalers, Mr Nankiville submits it was brought to his attention that another employee was still doing the work that he had been doing in the same truck he had been driving, as well as delivering to the same customers he had been servicing for the previous five years. His witness statement in this regard includes the following;

“ In April 2016 I was shown an advertisement for a driver position, posted by the respondent on Facebook. Attached hereto and marked with the letter “A” is a screenshot of this advertisement.

• Upon further enquiry I found that my previous position was ongoing and being performed by Mr Chris Gale.



• I researched redundancy and realized that I had been unfairly dismissed.” 6

[17] The job advertisement included the following;

“McDonalds Wholesalers ARE HIRING!!!!!!!!!

A position has just become available for a FULL TIME DRIVER with an IMMEDIATE START.

We are seeking fit and motivated applicants with a good sense of humour for our dynamic team! The position is 40 hours a week and you MUST have a minimum of a HR LICENSE (this is a must please).

The position will involve local and regional deliveries. A FORKLIFT TICKET is also HIGHLY DESIRABLE.” 7

[18] Mr Nankiville initially put forward in his evidence that he became aware of this information in April 2016 after it was brought to his attention by his daughter; however he conceded, after hearing Ms Ashe’s evidence that the advertisement was not placed until 25 May 2016, and that he had not become aware of the company’s advertising until shortly after that later date.

[19] For its part, McDonalds Wholesalers strongly resist the characterisation that there has been anything other than a genuine redundancy of Mr Nankiville. It disputes that the company hoped that Mr Nankiville would leave employment in the course of his annual leave in January and February 2016 and, while agreeing that it had been suggested to Mr Nankiville that if another position did arise when he was on annual leave that he should consider that position, the Respondent puts forward that the reason for that information was the loss of a substantial customer base on the part of McDonalds Wholesalers. 8

[20] Further, McDonalds Wholesalers dispute that there has been a situation in which an additional person has been employed by the company following the departure of Mr Nankiville. Instead it puts forward firstly that it merged the delivery run previously performed by Mr Nankiville with that of another driver 9 and, secondly, that its advertising for another driver was as a result of an employee having resigned employment with the business.10 It notes that the advertising for a replacement driver was at the end of May 2016, three months after Mr Nankiville had left employment.

[21] The Respondent’s submissions also note that the driver who had Mr Nankiville’s delivery run merged into theirs was “better received by the customer base” and that they had more experience than Mr Nankiville, and that McDonalds Wholesalers considered him to be more flexible as an employee. 11

[22] It is relevant to note also, for the reason that this application is made pursuant to the general protections provisions of the Act, that Mr Nankiville alleges the operative reason or one of the operative reasons for his termination was to replace him with a younger employee, and that he believes that around the time he was made redundant a number of other employees, around his age, were let go and that he has formed the view his age was an operative factor for his dismissal. 12 Mr Nankiville is presently 65 years of age and he believes the younger driver to whom he refers is in his early 40s.

LEGISLATION

[23] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act;

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 366(2) OF THE ACT

[24] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”. 13

[25] In considering whether an extension of time should be granted to Mr Nankiville, I am required to consider all of the criteria in s.366(2), which I now do.

1. The reason for the delay

[26] It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time for the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 14 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.15 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.16

[27] Consideration of this criterion requires examination of whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application.

[28] Mr Nankiville submits that the reason there was a delay by him in making his general protections application is because at the time of his termination he believed his dismissal to be for the reasons disclosed to him by McDonalds Wholesalers, namely for reason of redundancy, and that at the time he had no cause to question whether or not that was the case. It was only upon learning the information referred to above that Mr Nankiville formed the view he may have been dismissed for reasons other than genuine redundancy. He also concedes a lack of knowledge about his rights generally, and the statutory time limit in particular; however those are not the dominant reason for the delay. However, for the purposes of this decision, I find that the reason for Mr Nankiville’s delay in making his application was that, until publication of the advertisement in late May 2016, he had no cause to question his termination.

[29] The evidence shows that Mr Nankiville was made aware of the advertisement by his daughter in late May 2016 and that he then queried what was going on with other people he knew had some knowledge of McDonalds Wholesalers’ business. He spoke with the Fair Work Ombudsman, who identified that he could make an application to the Fair Work Commission. At the time of making the application, Mr Nankiville was not aware there was a time limit for doing so. He only became aware of the time limit after he had made the application to the Commission.

[30] While Mr Nankiville is able to demonstrate that he moved quickly to make a general protections application after learning the information upon which he bases his explanation, the fact remains that he did not consider making a challenge to his dismissal until receiving that information, perhaps only within a week before making the application.

[31] For the Commission to be satisfied that a reason is an acceptable one, in a case such as this, where the reason for the delay is an employee’s changed view about the true characterisation of events many months previously, the Commission would need to be satisfied that a reasonable person would come to the same conclusion – that McDonalds Wholesalers had likely misrepresented to him its reasons for dismissal given in February 2016. Further, it depends on a finding that the Respondent had not acted in good faith at the time, and that such could not reasonably have been known to the Applicant earlier than when he commenced his general protections action.

[32] The information received by Mr Nankiville may have caused him to question what had happened, and it obviously did, however nothing that he has provided to the Commission would so far convincingly show that the reasons for dismissal were misrepresented to him. He plainly did not think that at the time, and what he has brought forward now, when compared with the Respondent’s response, would be unlikely to show misrepresentation.

[33] Looking at the circumstances objectively, the Applicant likely knew when he left employment that the transport route he had undertaken would continue to be performed by employees who remained, albeit with some changes to reflect alterations to the number and location of customers. It is inescapable that he likely knew that at least some of the tasks he had performed for the Respondent would continue to be undertaken by others. While he may have disliked the Respondent’s decision-making or reasoning, that does not change the fact that the Respondent had decided it no longer required his job to be performed by anyone. Such, of course, may still be a redundancy. Reallocation of duties in good faith has been held to be a redundancy. 17

[34] The Respondent’s case about the merger of transport routes and its need to replace an employee who resigned from employment after Mr Nankiville had left is plausible. Objectively, the disinterested observer is unlikely to view the situation as amounting to one so lacking in good faith on the part of McDonalds Wholesalers as to demand a previously settled termination now be reopened for consideration well after the expiry of the statutory period in which a general protections matter may be commenced.

[35] In relation to the submission of Mr Nankiville that he was not aware of his rights at the time of dismissal, or after, and was not aware of there being a statutory time limit in which to commence a general protections application, the fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance. 18

[36] As a result, I am unpersuaded that Mr Nankiville has established that there is an acceptable reason for his late application. Consideration of this criterion therefore resolves against an extension of time being granted to him.

2. Any action taken by the person to dispute the dismissal

[37] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 19

[38] The only action taken by Mr Nankiville to dispute his dismissal was to speak with the Fair Work Ombudsman and to then commence this action. In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

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

[39] The delay in the filing of the application is 75 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[40] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 20

[41] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

4. The merits of the application

[42] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.

[43] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.²¹

[44] In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question. 22

[45] The merits of the application to which Mr Nankiville refers are a generalised allegation that one of the operative reasons for his termination was to replace him with a younger employee. He puts forward that he believes that around the time he was made redundant a number of other employees of a similar age to him were let go and he formed the view his age was an operative factor for his dismissal.

[46] The Respondent’s defence is that there was no consideration of age when it dismissed Mr Nankiville and that, instead, he was dismissed for reason of genuine redundancy. The Respondent also points to the company’s decision-making in responding to a significant down-turn in its business and argues that Mr Nankiville does not dispute that situation.

[47] After considering the material before about the substance of Mr Nankiville’s general protections case, but bearing in mind the parties’ respective contentions are yet to be tested, I am not persuaded his case would have more than low prospects of success.

[48] As a result, my consideration of this criterion resolves in the Respondent’s favour.

5. Fairness as between the person and other persons in a like position

[49] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past. 23 On balance, I consider this criterion resolves in favour of the Respondent being able to regard an otherwise settled dismissal as not being the subject of further challenge, especially in the absence of good prospects of it being found that the Respondent had not acted in good faith at the relevant time.

[50] After consideration of the whole the material before me and the legislative criteria, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for a general protections application to be made by Mr Nankiville. For these reasons, I decline to grant an extension of time pursuant to s.366 of the Fair Work Act 2009 and will issue an order dismissing his application as being out of time.

COMMISSIONER

Appearances:

Mr M Nankiville on his own behalf.

Mr S Farrell (Chamber of Commerce and Industry of Western Australia) for the Respondent.

Hearing details:

2016.

Melbourne (by telephone):

7 July.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 3   Form F8 - General Protections Application, Attachment B.

 4   Exhibit A1, Applicant’s Outline of Submissions, [1c].

 5   Form F8, item 1.4(v).

 6   Exhibit A2, Statement of Evidence of Martin Nankiville.

 7   Ibid Attachment A.

 8   Amended Form F8A - Employer Response Form, item 1.4(v).

 9   Exhibit R1, Respondent’s Outline of Argument: Extension of Time, [1h].

 10 Exhibit R3, Witness Statement of Ashe Perks, [6]-[8].

 11   Exhibit R1 [1h].

 12   Exhibit A1 [1i]-[1j].

 13   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [13].

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 15   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 16   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 17   Dibb v Commissioner of Taxation [2004] FCAFC 126, 136 FCR 388, at [43].

 18   Nulty v Blue Star Group, 2011, 203 IR 1 at [14].

 19   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 20   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

21 Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 22   Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941, (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445.

 23   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR582664>