McMechan v National Roads and Motorists' Association

[2016] FWC 5826

[2016] FWC 5826

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter McMechan
v
National Roads and Motorists’ Association T/A NRMA Motoring & Services
(U2016/6769)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 18 AUGUST 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr McMechan and the respondent ended on 31 March 2016. Mr McMechan lodged his application at the Fair Work Commission on 9 May 2016. Mr McMechan’s application was lodged 18 days outside the statutory time limit.

[3] In paragraph 1.4 of his application Mr McMechan set out his reasons for lodging his application outside the time limit prescribed by the Act. These are set out below.

“I was informed on Wednesday 30 March that my role as Safety & Wellbeing Business Partner - Southern Region was being considered to be made redundant. On Thurdsday [sic] 31 March I was informed that my role was being made redundant. I subsequently left the business on Friday 1 April & was paid a redundancy package.
On Friday evening 6 May I found a SEEK job advertisement advertising for Safety, Wellbeing & Environment Business Partner - Southern Region.
After reading the requirements for the role & comparing those to what I was previously doing. I don't believe that there is enough of a change to the role to make my position redundant.
I contacted a company (A Whole New Approach) on Saturday morning to discuss the prospect of supporting me in an unfair dismissal claim. A company representative (Gary) made contact with me this morning and I have decided to lodge an application for unfair dismissal.”

[4] I wrote to Mr McMechan on 19 May 2016 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr McMechan provided a comprehensive statement on 31 May 2016 1. That statement is set out below.

“Outlined below are my reasons for the late lodgement of my claim for unfair dismissal from the NRMA.

On the morning of Wednesday 30 March 2016 during a brief one on one meeting, I was advised by Trevor Ballantyne (who at the time was my direct Supervisor) that my role was being made redundant.

He Said: “Peter I am going to incorporate environment into a new safety role and your position is being made redundant as your role will no longer exist within the NRMA”. “I want you to go home and digest the information that I have just given you and we will discuss it further tomorrow”.

I said: “Trevor I am very disappointed to be losing a job I love and have given 15 years’ service to NRMA without ever receiving a bad report”.

As I had only just returned on Wednesday 30 March from personal leave due to the recent death of my Father in Law, I was quite distressed and left the office promptly for the day. I took the information that I received on this day from Trevor Ballantyne in good faith as I had no reason to suspect otherwise.

On Thursday 31 March shortly after 11am, I returned to the NRMA to meet with Trevor Ballantyne & Melinda Bevan (who was the HR representative). Trevor Ballantyne asked if I had any feedback from the information that he had provided the day prior. I again advised Trevor that I was very disappointed to lose a job that I love. Trevor Ballantyne then applied the redundancy and Melinda Bevan slid the redundancy papers which had been pre prepared across the table to me.

Melinda Bevan said “this is not personal. It is simply a cost cutting exercise”.

It was not until the evening of Friday 06 May 2016 when I read a SEEK job advertisement online, that I realised that the NRMA had acted unfairly. The role advertised was the same role I was currently performing (the position title had now incorporated the word “environment”), including the key accountabilities.

I lodged an Immediate Application as soon as I became aware the redundancy was unfair

I contacted a law firm (whom I had sourced online) for some advice on Saturday morning 07 May 2016 and left my details with the lady who took my call.
I received a call back from the law firm on Monday 09 May 2016 at approximately 9am. After a brief discussion, I immediately begun to complete the application for unfair dismissal on the FWC website and submitted my request on the morning of Monday 07 May 2016.

I believe this is not a genuine redundancy

Having read the Job advertisement on Seek on Friday evening 06 May 2016 I believe that this is not a genuine redundancy. The NRMA still requires the key duties of my role to be performed as outlined in the SEEK Job advertisement. The job advertisement defines the key accountabilities for the role. These accountabilities are identical to the role that I was successfully fulfilling. The only difference is the environmental acknowledgement in the position title. This could have been fulfilled by myself with some training and would have resulted in no need for a forced redundancy.

Both positions that were made redundant during the same process as mine have been advertised on seek.

I do not believe that there was real Consultation

Due to the one sided conversation from Trevor Ballantyne, the lack of information that Trevor Ballantyne disclosed, and the state of mind that I was in at the time, this, in my opinion does not constitute effective consultation. I was not offered an opportunity for additional training (nor was it suggested) to meet the proposed new environment requirement for my role nor was I offered any other employment opportunity within the NRMA. Trevor Ballantyne stated that he could not afford the time for me to complete any training and as such the redundancy was the only option.
As I have never been made redundant before I was not aware of the 21-day period to lodge a claim nor have I had the need to look into the Fair Work Act regarding redundancy. The NRMA did not make me aware of, or provide me with any information relating to, the FWC or my rights to dispute a redundancy.”

[5] I considered Mr McMechan’s statement and decided that it was not appropriate to deal with this application on the basis of submissions. I listed the application for hearing on Monday, 4 July 2016. At the hearing Mr McMechan gave evidence and was cross-examined. In addition to his statement of 31 May 2016 2 he provided a Position Title3, a Seek advertisement for a Safety, Well-Being and Environment Business Partner4, an email approving a request for leave from 5 August 2016 to 15 August 20165, a Death Certificate6, and a Linked in advertisement for a Safety, Well-Being and Environment Business Partner7.

[6] At the hearing Mr Trevor Ballantyne, the key decision maker for the respondent, and Ms Melinda Bevan, Human Relations Manager for the respondent, gave evidence for the respondent and were cross-examined.

[7] Mr McMechan was given an opportunity to consider the decisions provided by the respondent and respond to those following the hearing. By omission that material was not provided to the respondent.

[8] Mr McMechan’s explanation for delay can be summarised very shortly. His evidence was that although he was unhappy and disappointed to receive his notice of redundancy. He had accepted that it was genuine. He had no suspicion that his redundancy was otherwise than genuine until he noticed an advertisement on Seek on 6 May 2016 when he was searching for employment. He attempted to obtain representation, but the organisation he consulted refused to appear for him because his application was out of time. He therefore lodged his application without assistance on Monday 9 May 2016. I accepted Mr McMechan’s evidence in this regard.

[9] I considered the evidence and submissions provided by the parties at the hearing on 4 July 2016. Mr McMechan’s final submission was not determinative. I issued a Finding and Order on 12 August 2016. I allowed Mr McMechan’s application for an extension of time.

[10] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

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.

[11] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.” [Endnotes not reproduced]

[12] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[13] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[14] The reason Mr McMechan provided for his delay in lodgement was straightforward. When it occurred he did not doubt that his redundancy was genuine. Afterwards he was living his life in an ordinary fashion, having a break before searching for new work, when he noticed on 6 May 2016, an advertisement for a position which he was satisfied that he could have filled.

[15] I was persuaded that Mr McMechan’s difficulties were out of the ordinary, unusual or uncommon. I was satisfied that he acted in a prompt fashion as soon as he saw the relevant advertisement.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[16] Mr McMechan became aware of the end of his relationship with the respondent on 31 March 2016.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[17] Mr McMechan disputed his dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[18] I was satisfied that there would be no greater prejudice to the respondent caused by Mr McMechan’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[19] Although I have some doubts about the level of consultation involved in Mr McMechan’s selection for redundancy, merit was a neutral issue in my consideration of this application.

fairness as between Mr McMechan and other persons in a similar position-S.394(3)(f)

[20] There was no issue of fairness in relation to any other person in a similar position.

[21] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis I allowed the application. Mr McMechan’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   Exhibit McMechan 1

 2   Ibid

 3   Exhibit McMechan 2

 4   Exhibit McMechan 3

 5   Exhibit McMechan 4

 6   Exhibit McMechan 5

 7   Exhibit McMechan 6

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