Michael Bechara Bitar v Australian Postal Corporation

[2020] FWC 6095

[2020] FWC 6095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Bechara Bitar
v
Australian Postal Corporation
(U2020/12639)

DEPUTY PRESIDENT DEAN SYDNEY, 16 NOVEMBER 2020

Application for an unfair dismissal remedy – extension of time – no extension granted

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

[2] The Applicant was employed by the Australian Postal Corporation (Respondent) since February 1979. He had performed a range of roles with the Respondent and at the time of his dismissal held the position of Operations Manager/Manager Network Logistics NSW/ACT at the Respondent’s Sydney West Letters Facility (SWLF).

[3] The Applicant was notified on 30 July 2020 that his position was made redundant and that his last day of work was 28 September 2020.

[4] 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).

[5] The Applicant’s unfair dismissal application was lodged on 21 September 2020. The period of 21 days for the Applicant to file his application ended at midnight on 18 September 2020. The Applicant now asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[6] 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

[7] 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.

Reason for the delay

[8] The Act does not specify what reasons for delay 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] The Applicant acceded that his last day of work was Friday 28 August 2020 but believed that the 21 day period started from Monday 31 August 2020, being the day he would have attended work had he not been dismissed.

[10] It is well established that ignorance of the law is not an acceptable reason for a delay in making an unfair dismissal application. In this case, the Applicant says he misunderstood when the 21 day period commenced. He gave evidence that he looked at the Commission’s website to determine when his application was due. The Commission’s website makes it clear that applications must be received by the Commission within 21 days of a dismissal taking effect. The letter the Applicant received on 30 July clearly states that his last working day would be 28 August 2020. Further, the letter offered him access to the Respondent’s transition team to assist him in sourcing an alternative position within the Respondent’s business. In accepting this offer, the Applicant confirmed his understanding that if he was not successfully appointed to another suitable role by 28 August, his employment would end by way of redundancy. It is clear that the Applicant’s employment ended on 28 August, and he was so advised. If there was any uncertainty in the Applicant’s mind as to this being the date of his dismissal, he had almost four weeks prior to 28 August to clarify this with the Respondent.

[11] The Applicant also said he needed to gather information to support his application, which was not readily available to him because he needed access to the Respondent’s IT systems. In this regard, the Applicant had a period of four weeks prior to 28 August in which to gather any information he thought he may need. Even if I accept the Applicant’s explanation that he devoted much time throughout the notice period to complete a project for the Respondent, there is no evidence to suggest any impediment to preparation for the application during the 3 week period after his dismissal. Further, the unfair dismissal application form does not require considerable information to commence the process.

[12] Having considered the matters raised by the Applicant in this regard, I find that he has not made out an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application. This weighs against the granting of an extension of time.

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

[13] The Applicant was notified of the dismissal on 30 July 2020 that his employment would end on 28 August 2020 and had the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

Action taken to dispute the dismissal

[14] The Applicant says he wrote to the Respondent on 31 July 2020 to dispute the dismissal and to seek clarification as to which position was made redundant. This was because his role had changed in January 2020. On 6 August 2020 the Respondent replied confirming that his role of Manager Network Logistics NSW/ACT and the Operations Manager role were one in the same.

[15] The Respondent says the letter from the Applicant did not expressly state he wished to challenge the decision to make his position redundant or have the decision reconsidered. Rather, he made a number of assertions about changes to his duties over the previous few years, and sought clarification as to the specific position title that related to the redundancy. He further indicated that he wishes to utilise the services of the Respondent’s transition support team to search for another role within the Respondent’s business.

[16] I do not consider that the Applicant took specific action to dispute his dismissal. As the Respondent rightly points out, his letter of 31 July 2020 did not seek to challenge the decision or seek to have it reconsidered. There is no other evidence to suggest he sought to dispute the dismissal other than by the making of this application.

[17] I consider that this weighs marginally against a finding that there are exceptional circumstances.

Prejudice to the employer

[18] The Respondent argued there would be prejudice to it by requiring it to dedicate additional resources to a claim that lacks merit, and would limit the Respondent’s ability to implement the organisational restructure which resulted in the genuine redundancy of the Applicant’s position. In contrast, the Applicant contended that there is no prejudice to the Respondent, in part because the Respondent had not filed its Form F3 employer’s reply to the application within the 7 day timeframe set out in the Commission’s Rules.

[19] I do not consider that any real 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

[20] The Act requires me to take into account the merits of the application.

[21] Section 389 the Act provides a dismissal will be considered a genuine redundancy if the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise and, the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. A dismissal is not considered a genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

[22] The Applicant asserted that the termination of his employment was not a case of genuine redundancy and advanced this contention on several grounds. He argued that there was no apparent or transparent operational changes that have been made to the operational structure of SWLF and there was no logical reason to declare his role redundant.

[23] The Applicant asserted that there was a lack of consultation with him, and that there was a moral obligation incumbent upon the Respondent to consult with him given his 41.5 years of service.

[24] The Applicant submitted that it would have been reasonable for the Respondent to redeploy him for other positions within the organisation. In particular, the Applicant claimed that the Respondent could have redeployed him to the role of Shift Production Manager which was vacant at the time of his dismissal. It was submitted that the position would have been suitable given his skills and experience.

[25] The Respondent submitted that it had complied with the requirements of s.389 of the Act and the dismissal was a genuine redundancy. The COVID-19 pandemic has significantly impacted on the volumes of product that the Respondent has seen across its business which saw substantial growth in parcel volumes and ongoing decline in letter volumes. The Respondent had therefore conducted an organisational restructure of its business to meet the ongoing changes to demand and as a result the Respondent no longer required the Applicant’s position to be performed by anybody.

[26] It was contended that the Applicant’s role was not covered by any modern award or enterprise agreement and therefore no consultation obligation arose with respect to the Applicant’s redundancy. However, as a matter of best practice, it met with the Applicant on 30 July, provided him with information about the restructure, and provided him with access to its transition team to help him secure alternative employment with the Respondent’s business.

[27] The Respondent also contended that despite the Applicant indicating he wished to pursue redeployment opportunities, he failed to engage with the transition team after the initial contact with them. The Respondent rejected that there were any suitable alternative positions available to which the Applicant could have been redeployed. It argued that the positions referred to by the Applicant were being performed by other employees as at the time of his dismissal and were not vacant as asserted by the Applicant.

[28] It is not possible to make any firm or detailed assessment of the merits as both parties have arguable cases. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[29] 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.

[30] In terms of this consideration, the Respondent referred to a number of decisions in which the Commission had decided not to grant an extension of time, including some matters which involved former employees of the Respondent.

[31] Having had regard to the matters raised by the parties, I consider this criterion to be a neutral consideration in the present matter.

Conclusion

[32] 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, 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 is dismissed.

DEPUTY PRESIDENT

Appearances:

M Bitar, on his own behalf.
J Crook, for Australian Postal Corporation.

Hearing details:

2020.
Sydney (By telephone):
November 13.

Printed by authority of the Commonwealth Government Printer

<PR724523>

 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]