Miss Meagan Woods v Premier Bars Pty Ltd T/A Archive Beer Boutique and Loft West End

[2020] FWC 6978

[2020] FWC 6978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Meagan Woods
v
Premier Bars Pty Ltd T/A Archive Beer Boutique and Loft West End
(U2020/14553)

DEPUTY PRESIDENT ASBURY BRISBANE, 22 DECEMBER 2020

Application for an unfair dismissal remedy.

Introduction

[1] This decision concerns an application by Ms Meagan Woods (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant was employed by Premier Bars Pty Ltd (Respondent) as a Venue Manager for the Archive Beer and Loft Boutique and her dismissal from her employment with the Respondent took effect on 14 April 2020. The Respondent contends that the Applicant’s dismissal was a case of genuine redundancy. The Applicant lodged her unfair dismissal application with the Fair Work Commission (Commission) on 8 November 2020.

[3] Section 394(2) of the FW Act provides 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). It is not in dispute that the Applicant’s dismissal took effect on 14 April 2020. The period of 21 days ended at midnight on 25 April 2020. The application was therefore filed 187 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) of the FW Act. The Respondent opposes this request.

[4] On 9 December 2020, I conducted a hearing, by telephone, in relation whether a further period should be allowed to the Applicant to lodge her unfair dismissal application in the Commission. At the hearing, the Applicant gave evidence on her own behalf and evidence for the Respondent was given by Mr R Kay, Group General Manager.

Extension of time application

[5] 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”. In short compass, 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

[6] 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.

[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.

[8] 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.

Background

[9] Before considering the matters in s. 394(3) it is necessary to set out some of the background to the Applicant’s dismissal. Mr Kay’s evidence was that the venue in which the Applicant was employed (along with other venues operated by the Respondent) closed on 23 March 2020, in line with Queensland Government directives related to the COVID-19 Pandemic. The majority of staff were dismissed at that time and given employment separation certificates. The Applicant, as a Venue Manager, was retained in employment. Subsequently the Respondent conducted a review of its operations and on the basis that the Archive Beer Boutique and Loft West End was the Respondent’s smallest business, and it was uncertain as to when it would re-open and the trade that would follow, determined that the venue did not require a Venue Manager going forward. Accordingly, the Applicant’ position was made redundant and her employment was terminated 14 April 2020.

[10] Mr Kay said that in his role as General Manager, he assumed the role of Venue Manager for the Archive Beer Boutique and Loft West End when the Applicant was made redundant. The Respondent became eligible for JobKeeper payments at or around the end of March 2020 and employees the Respondent believed would be required when it re-opened venues, received those payments. Mr Kay maintained that because the Respondent believed that it would not require a Venue Manager for the Archive Beer Boutique and Loft West End when it re-opened, it was not permitted to pay JobKeeper payments to the Applicant.

Consideration of s. 394(3) matters

Reason for the delay

[11] 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

[12] The FW 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

[13] In relation to the reason for the delay, the Applicant said that when she was dismissed on 14 April 2020, she was advised that her role as Venue Manager was no longer required for the venue to run, and was led by the Respondent to believe that her dismissal was a genuine redundancy. The Applicant states that she was also advised that the venue was the least profitable in the Company and that when it reopened after the effects of the COVID-19 Pandemic had abated, it was believed that there would be a slow growth pattern and tendered an email notifying of the redundancy of her position setting these matters out.

[14] The Applicant said that on 5 November 2020, it came to her attention that an advertisement had been placed on an on-line job site for a Venue Manager of Archive Beer Boutique and Loft West End and the title and position description matched her previous role. The Applicant tendered her position description and the advertisement. Further, the Applicant said that this advertisement caused her to undertake a further search of the on-line job site during which she found an advertisement for an Operations Manager which had been placed on the site on 26 June 2020. The Applicant’s evidence was that the Operations Manager position was filled in or around the end of June 2020.

[15] The Applicant contended that the advertisements for these roles evidenced that her position was not genuinely redundant on 14 April 2020. Further support for this contention was said to be the fact that following her dismissal on 14 April 2020, the duties previously performed by the Applicant were split between the rest of the management team, including Mr Kay. The Applicant also contended that her role was not genuinely redundant because the announcement of the JobKeeper subsidy on 30 March meant that the Respondent would have been assisted with any financial issues associated with retaining her in employment.

[16] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. In order to explain my conclusion in this regard, it is necessary to consider the meaning of the term “genuine redundancy”. That term has a statutory meaning and an ordinary meaning. The statutory meaning is found in s. 389 of the FW Act which is in the following terms:

389  Meaning of genuine redundancy

(1)  A person’s dismissal was a case of genuine redundancy if:

(a)  the person’s 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

(b)  the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy

(2)  A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a)  the employer’s enterprise; or

(b)  the enterprise of an associated entity of the employer.

[17] The effect of s 389 of the FW Act is that a dismissal that meets the definition of “genuine redundancy” is removed from the unfair dismissal provisions of the FW Act and an employer has a complete defence to an unfair dismissal application. However, the fact that a dismissal does not meet the definition in s. 389 of the Act, so that it is not a “genuine redundancy” in the statutory sense, does not mean that the dismissal is not a genuine redundancy in the ordinary sense – that the employer no longer requires the job to be done by anybody because of changes to its operational requirements.

[18] A job is a collection of duties and tasks performed by an employee. In determining a job is redundant, it is necessary to draw a distinction between the employee’s job and the employee’s duties or tasks. 6 The fact that the duties or tasks remain to be done, does not mean that the job of an employee who was doing those duties or tasks is not redundant. A dismissal may be a redundancy within the meaning in s. 389(1)(a) of the Act and in the ordinary sense, in a number of circumstances including: where the duties or tasks performed by an employee remain and are distributed to other employees (who may or may not have previously performed those duties or tasks) so that overall, fewer employees are required in the workplace; or where the employer’s business is experiencing a downturn and the number of employees doing the same or similar tasks is reduced.7

[19] Whether a job is redundant is assessed at the time the person performing the job is dismissed. There will be cases where a dismissal is disguised as a genuine redundancy, and where the employee who was dismissed is replaced, in circumstances where the particular job (as distinct from the tasks or duties) was not redundant at the time the employee concerned was dismissed.

[20] Cases where a dismissal is disguised as a redundancy, will generally involve some subterfuge or dishonesty on the part of the employer and circumstances where the facts evidencing lack of genuineness were not discoverable at the point the employee was dismissed. Subterfuge or dishonesty on the part of the employer, if established, may provide a reasonable explanation for delay in making an application for an unfair dismissal remedy.

[21] It is also possible that a job, which was genuinely redundant at a particular point in time, is reintroduced and filled, subsequent to the person who previously held the job being dismissed on the ground of redundancy. There is nothing to prevent an employer making a job redundant due to operational changes and dismissing the person who held the job on the ground of redundancy, later deciding to reintroduce the job because of further operational changes. This does not mean that the job was not genuinely redundant at the earlier time (in the statutory or the ordinary sense).

[22] Where an employee who was dismissed on the grounds of redundancy, seeks to agitate a dismissal after 21 days has elapsed, in circumstances where there is nothing to suggest that there was dishonesty or subterfuge associated with the dismissal and where the facts the employee seeks to rely on to establish unfairness were known or could have been reasonably ascertained at the time the dismissal took effect, the mere fact that a position has been filled subsequent to the dismissal, may not be an acceptable explanation for delay.

[23] In the present case, the Applicant accepts that existing employees took over the duties she had performed, at the point she was dismissed. The Applicant asserts that this evidences that it was not a genuine redundancy because the job did need to be done. Leaving aside the fact that this assertion is misconceived, and the redistribution of her duties is an assertion that could have been made at the time the Applicant was dismissed.

[24] Against that background, the fact that an Operations Manager role was advertised on 26 June 2020 (some ten weeks after the Applicant was dismissed) and a Venue Manager Role was advertised on 5 November 2020 (some 29 weeks after the Applicant was dismissed) does not provide an acceptable explanation for the delay in filing her application. Further, the fact that either of those positions were advertised and filled does not of itself, provide an explanation for delay in making the application.

[25] 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

[26] The Applicant says she was notified of her dismissal on 14 April 2020 and it took effect on that date. Given that there was no confusion about the date the Applicant’s dismissal took effect, she had the full period of 21 days from 14 April 2020 to lodge her unfair dismissal application. In all the circumstances, I consider this to be a neutral consideration.

Action taken to dispute the dismissal

[27] The Applicant did not take any action to dispute her dismissal other than making an unfair dismissal application 187 days outside the required time. This circumstance weighs against a conclusion that there are exceptional circumstances.

Prejudice to the employer

[28] The length of the delay is considerable and notwithstanding that the Respondent has not identified any particular prejudice that would accrue to the Respondent if an extension of time were to be granted, I consider that the extent of the delay weighs against a further period being granted. In any event the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

Merits of the application

[29] 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 Form F2 Application and Form F3 Employer response. Having examined these materials, I am of the view that the Applicant has some prospect of establishing that her redundancy was not a “genuine redundancy” in the statutory sense on the grounds of lack of consultation. However, for reasons I have set out above, this does not mean that the redundancy will not be found to be genuine in the ordinary sense given the impact of the COVID-19 Pandemic on the hospitality industry.

[30] On the basis of the limited material before me, I consider the merits of the present case to be neutral.

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

[31] 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. 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

[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. 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. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

The Applicant on her own behalf.

Mr R Kay for the Respondent.

Hearing details:

9 December

2020:

By telephone.

Printed by authority of the Commonwealth Government Printer

<PR725740>

 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]

 6   Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488.

 7 Ibid at [19].