Michael Norris v Bre Employment1 Pty Ltd
[2024] FWC 2337
•5 SEPTEMBER 2024
| [2024] FWC 2337 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Norris
v
Bre Employment1 Pty Ltd
(U2024/7856)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 5 SEPTEMBER 2024 |
Application for an unfair dismissal remedy
Unfair dismissal application – application made outside 21 days – position redundant – new role subsequently advertised – exceptional circumstances
The issue and outcome
On 8 July 2024, Mr Michael Norris (the Applicant) made an unfair dismissal application having been dismissed by BRE Employment1 Pty Ltd (the Respondent). The Respondent raised a jurisdictional objection to the unfair dismissal application on the basis that it was filed outside of the statutory period prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act) and that the Applicant’s dismissal had been by way of genuine redundancy.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect (s 394(2) of the Act). The other three preliminary matters are not presently relevant for the purpose of this decision.
The Applicant contends his employment with the Respondent was terminated at the Respondent’s initiative on 20 June 2024 and it therefore follows that his application was made within the prescribed statutory period.
The Respondent submits that it notified the Applicant of his dismissal on 4 June 2024 and that the Applicant’s dismissal took effect that same day, having paid the Applicant in lieu of notice. If the Respondent is correct with its assertion that the Applicant’s dismissal took effect on 4 June 2024, it would follow that the Applicant made his unfair dismissal application 13 days outside of the statutory period.
It follows that the contentious issues in this matter can be summarised as follows:
a) what was the date that the Applicant’s dismissal took effect;
b) did the Applicant make his unfair dismissal application outside of the statutory timeframe provided in s 394(2) of the Act; and
c) if the unfair dismissal application was made outside of the statutory timeframe, are there exceptional circumstance that warrant granting an extension of time in which to make the unfair dismissal application and if so, is it fair and equitable for an extension to be granted.
The matter proceeded to hearing in light of the dispute over the dismissal date. Parties were provided with the opportunity to provide viva voce evidence because of the paucity of materials filed in support of their respective cases.
For the reasons that follow, I have found that the Applicant’s dismissal took effect on 4 June 2024. It follows that the Applicant’s application was made 13 days outside of the statutory period. However, having considered the factors in s 394(3) of the Act, I have found that the circumstances are exceptional, and it is fair and equitable that time should be extended.
I therefore grant an extension of time under s 394(2)(b) of the Act to 8 July 2024. The matter will now be programmed to deal with the Respondent’s further jurisdictional objection that the dismissal was by way of genuine redundancy and the merits of the application.
Background
The Applicant and Respondent hold different views as to when the Applicant commenced employment with the Respondent. According to the Applicant, he commenced employment with the Respondent as a rigging supervisor on or around 8 May 2023. The Respondent asserts that the Applicant’s employment commenced on 19 April 2022. Notwithstanding, it appears uncontroversial that the Applicant had satisfied the minimum employment period and therefore nothing much turns on this point.
At hearing, the Applicant gave evidence he was employed by the Respondent, but in his written material he asserted that he held a position with Tammar Contractors as a rigging supervisor. The Applicant said he had been told that he was being made redundant from that position because it was no longer required.[1]
At hearing, Mr Brennan a director and owner of the Respondent and a ‘minority director’ of Tammar Contractors, gave the following evidence:
a) the Respondent and Tammar Employment1 Pty Ltd both provide labour to Tammar Contractors;
b) Mr Brennan is the director and owner of the Respondent and a ‘minority director’ of both Tammar Employment1 Pty Ltd and Tammar Contractors;
c) Tammar Contractors has a contract with a client (Luerssen) to provide rigging and lifting services. It contracts its labour from the Respondent and Tammar Employment1 Pty Ltd;
d) According to Mr Brennan the Respondent and Tammar Employment1 Pty Ltd are not labour hire entities but contractors;
e) toward the latter part of 2023, Tammar Contractors was experiencing problems with its client concerning how the contractor between it and its client was being run;
f) Tammar Contractors and its client reconfigured the way they interacted with respect to the contract, which resulted in the Applicant’s position being made redundant;
g) Mr Brennan explained that what was required for the contract between Tammar Contractors and its client was more akin to a leading hand role rather than a rigging supervisor role, as the client had started to do some of the supervision;
h) the Applicant’s position was made redundant and he was offered a ‘QA role’, which the Applicant declined;
i) the Applicant was provided with a letter of termination on 4 June 2024 and a letter setting out his redundancy package on 4 June 2024;
j) after having terminated the Applicant’s employment, Tammar Contractors then advertised a position of rigging supervisor (presumedly on SEEK), which it did so in error, noting that the advert had been cut and paste by Human Resources and they had not changed the text and the title of the advertised position; and
k) a further job advertisement was placed on the website (again presumedly SEEK) this position was for a program lead, the position requiring a trade qualified person with previous supervisory experience, and a requirement to perform duties which included, amongst others, interpreting and executing lifting plans and drawings.
The Applicant acknowledged receipt of the redundancy letter on 4 June 2024 and a further redundancy letter on that same date setting out the redundancy ‘offer’. The Applicant noted he did not accept the ‘offer’ until the following day.
The Applicant further agreed that he had been offered a ‘QA role’, but it was a role he had never done in his life, and it would mean working in an office rather than being onsite. The Applicant said he did not consider the role suitable.
The Applicant gave evidence that on 7 July 2024 whilst searching on SEEK for employment, he came across an advert for his redundant position. The Applicant said the advertisement had been posted on the SEEK website on 5 July 2024. The Applicant then lodged his unfair dismissal application the day after having observed the advert.
Date of dismissal
It is well-established that a termination of employment takes effect when it has been communicated to the employee.
In Ayub v NSW Trains (Ayub), the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[2] The Full Bench explained at paragraph [42] of Ayub:
[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…
As observed, the Respondent asserts that the Applicant’s dismissal took effect on the same day that he was notified of his dismissal, that being 4 June 2024, and that the Applicant was paid in lieu of a notice period.
The Applicant states that he received a first letter of redundancy on 4 June 2024 followed by a second letter on the same day. However, he did not receive his redundancy payment until 20 June 2024. Thereafter, he lodged his unfair dismissal application within 21 days of receiving his redundancy payment.
By letter of 4 June 2024, the Applicant was informed that his position of rigging supervisor was no longer needed and that he was offered the alternate role of QA coordinator (which the Applicant declined).[3] The letter of 4 June 2024 set out:
Your employment will end immediately. Based on your length of service, your notice period is 2 weeks. Instead of receiving that notice, you will be paid the sum of $5000.00, plus the redundancy entitlement set out below.[4]
The Applicant received a further letter from the Respondent dated 4 June 2024, that clarified information about the tax-free component of the redundancy payment.
The evidence shows that the Applicant had a reasonable opportunity to find out he had been dismissed as at 4 June 2024, when he received the first redundancy letter. The Applicant appears to have been operating under a misconception that his dismissal did not take effect until the end of the notice period or on payment of his redundancy pay. However, it is uncontroversial that where the Applicant was notified that his employment terminated effective immediately and payment was made in lieu of notice, the Applicant’s employment ended at that time, which in this case was 4 June 2024.
It follows that the Applicant’s unfair dismissal application was filed 13 days outside of the statutory period set by s 394(2) of the Act. Therefore, consideration turns to whether an extension of time in which to make his unfair dismissal application should be granted.
Extension of time
For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] It is accepted that 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, can be considered exceptional.[6]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[7]
4.1 Reason for the delay
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[8] 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.
The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.[9] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[10]
As noted, the Applicant states that on 7 July 2024 he was on SEEK searching for employment. It was at this time that he came across an advert for what he claims was his ‘redundant position’. The Applicant acknowledged that the advertisement he was referring to was with ‘Tammar Contractors’, however he clarified that Tammar Contractors was the business with which the Respondent held a contract to provide labour. The Applicant stated that only Indigenous persons were directly employed by Tammar Contractors and those persons who were not Indigenous were employed by the Respondent. As a person who was not an Indigenous person, the Applicant said he had been employed by the Respondent and then a labour hire arrangement of sorts was made.
In Mr Kelwin Smith v Penrite Oil Company t/a Penrite (Smith),[11] the applicant, Mr Smith, filed his unfair dismissal application some 27 days late. Mr Smith’s position was made redundant on 1 May 2020, and he was dismissed on that same day. On 18 June 2020, he saw an advertisement on SEEK for a vacancy with his former employer, which he considered exactly the same as the role he had filled.[12] It was found that Mr Smith had, on seeing the vacancy taken immediate steps to research on the Commission’s website how to challenge his dismissal and he made his application for unfair dismissal remedy immediately thereafter – on that same day. It was concluded that that Mr Smith had provided an acceptable explanation for the whole of the delay, which weighed in favour of a grant of an extension.
Similarly, in Toni Perret v Ayers Real Estate (Perret), the applicant, whilst having considered making an unfair dismissal within the first week of her dismissal, did not, as she had no reason to suspect that the redundancy of her position may not be genuine. However, on 5 May 2020, the applicant found a private advertisement online (at seek.com.au) for a commercial property manager with an anonymous employer for which she applied. Then, on 7 May 2020, the applicant found an advertisement online (at indeed.com) for a commercial property manager with the Respondent employer. That same day, the applicant caused an application for unfair dismissal to be lodged with the Commission.
In Perret it was found that on becoming aware that her dismissal, which took effect on 23 April 2020, may have been unfair, the applicant acted immediately and without delay to file the unfair dismissal application on 7 May 2020. It was therefore accepted that the applicant’s explanation for the period 23 April to 7 May 2020 was an acceptable or reasonable explanation and weighed in favour of a conclusion that there were exceptional circumstances.
The circumstances of the Applicant in this case is somewhat analogous to those in Perret or in Smith. I accept that on viewing an advertisement on 7 July 2024 for a position that the Applicant considered was substantially similar if not the same as the one he had occupied, the next day he made his unfair dismissal application. I further accept that it was not until he viewed the advert on 7 July 2024 that the Applicant’s concern about the genuineness of his redundancy crystallised. At that point, it is evident that the Applicant was seized with urgency to make the unfair dismissal application having become aware of the advertisement and concluding that the redundancy of his position was not genuine and hence forming the view his dismissal was unfair. Further, I accept that the position advertised, that is the advertisement that the Applicant identified, was sufficiently similar to the position he had held whilst employed by the Respondent, notwithstanding the role was advertised with Tammar Contracting.
Having regard to these matters, I am satisfied that the Applicant has provided an acceptable explanation for the whole of the delay. This weighs in favour of a finding of exceptional circumstances.
4.2 Whether the person first became aware of the dismissal after it had taken effect
The Applicant was advised of his dismissal by reason of redundancy on 4 June 2024. This was confirmed in a letter of that date. The Applicant therefore had the full 21-day period to lodge his application for an unfair dismissal remedy.
This may weigh against the grant of an extension of time. However, I consider this to be a neutral consideration in light of the Applicant’s evidence, which I have accepted, that it was not until he viewed the advertisement on SEEK that he legitimately questioned the genuineness of the redundancy.
4.3 Action taken by the person to dispute the dismissal
The Applicant did not take any action to dispute the dismissal prior to making the unfair dismissal application. However, I consider this factor neutral in all the circumstances.
4.4 Prejudice to the employer
The Respondent submitted that the lateness of the application had been a burden in terms of cost and time pressures, as well has having disrupted the business daily tasks.
However, I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now, than if the application had been made within the 21-day limitation period. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time. I consider this to be a neutral consideration.
4.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[13] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[14]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[15] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
Whilst this application to date has been hampered by a paucity of evidence, the evidence that has been advanced by the parties is sufficient for me to find that the Applicant’s case is not without merit. As such, the merits in this case are a neutral factor.
4.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[16]
Based on the submissions filed, I am not satisfied that the criterion of fairness between However, at paragraphs [29] to [31] of this decision I highlight cases that are, on their face, analogous to the circumstances confronting the parties. Those cases support a finding of exceptional circumstances.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. The Applicant has provided a satisfactory explanation for the entirety of the delay in making his application and his application is not absent of merit. The remaining matters I need to consider either weigh toward a finding of exceptional circumstance or tell neither for nor against the application for an extension of time. In these circumstances, having considered all evidence and submissions, I find there are exceptional circumstances and consider it fair and equitable that an extension of time should be granted to the date the application was lodged.
The Respondent’s jurisdictional objection with respect to the timeframe for lodgement is dismissed.[17] The application will now be programmed in respect of the Respondent’s further jurisdictional objection and the merits of the matter.
DEPUTY PRESIDENT
Appearances:
M. Norris, Applicant
S. Brennan, Respondent
Hearing details:
2024
PERTH (by telephone)
29 August
[1] Digital Hearing Book (DHB) pg 4.
[2] (2016) 262 IR 60, 79 [48].
[3] DHB (n 1) pg 17.
[4] Ibid.
[5] (2011) 203 IR 1, 5 [13].
[6] Ibid 6 [13].
[7] (2018) 273 IR 156, 165 [38] (emphasis in original).
[8]Ibid , 165 [39].
[9] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[10] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[11] [2020] FWC 3446 (‘Smith’).
[12] Ibid [12].
[13] (1997) 140 IR 1.
[14] Ibid 11.
[15] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[16] [2015] FWC 8885, [29].
[17] PR778863.
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