Mr Brett Hadfield v Greenacre Pty Ltd T/A Jasbe Petroleum

[2015] FWC 3121

[2015] FWC 3121

FAIR WORK COMMISSION

DECISION

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

Mr Brett Hadfield
v
Greenacre Pty Ltd T/A Jasbe Petroleum
(U2015/3719)

COMMISSIONER ROE MELBOURNE, 6 MAY 2015

Unfair dismissal - extension of time.

[1] Mr Hadfield was employed from March 2010 until advised of the termination of his employment at a meeting on 27 January 2015. Mr Hadfield was told that his position was redundant due to the work he was performing being outsourced. Mr Hadfield argues that the redundancy was not genuine as the contractor who has been engaged is doing the same job as he was doing. Mr Hadfield also argues that the redundancy was not genuine due to the lack of consultation and consideration of redeployment opportunities. Greenacre Pty Ltd T/A Jasbe Petroleum (Greenacre) argue that the role has been outsourced to an external individual contractor on a 12 month contract at which time business requirements will be reviewed. Greenacre provided evidence of the decision making process involved in making the decision to outsource the job.

[2] The unfair dismissal application was made on 5 March 2015. The Application is approximately 16 days late.

[3] Section 394(3) of the Fair Work Act 2009 requires me to consider five matters in determining whether or not exceptional circumstances exist which justify granting an extension of time.

[4] Mr Hadfield says that the reason for the delay is that he was shocked by the dismissal and that he became aware that his position had been replaced by an individual contractor who was effectively working full time hours when he went to the workplace to pick up some things about three weeks after the termination. He says that his concerns about the legitimacy of what had happened were increased by another conversation with an employee of Greenacre on about 20 February 2015. He says he was discussing with other people whether or not lodging an unfair dismissal claim was a meritorious course of action in the period between 20 February and 5 March 2015. I am not satisfied that the reasons provided justify the delay in making the application. Mr Hadfield agrees that he was told on 27 January 2015 that his position was being made redundant because the company had decided to have the work performed by an external contractor. Mr Hadfield agreed that he was aware earlier that his position was under review although there was no previous discussion about the possibility of redundancy or reduced hours. Any issues about the lack of consultation and consideration of redeployment were known to Mr Hadfield on 27 January 2015. The fundamental issue about the genuineness of the redundancy was also known to Mr Hadfield as he was aware that the work that he was doing would continue to be required to be performed but would be performed by an external contractor. I am not satisfied that there is a satisfactory explanation for the failure to lodge the application during the entire period from 27 January 2015 until 5 March 2015. This is a factor which stands strongly against a finding of exceptional circumstance.

[5] Mr Hadfield was aware of the termination on 27 January 2015. This is a neutral consideration.

[6] Mr Hadfield did not take any action to dispute the dismissal between the termination and the lodging of the application. This is a factor which stands against a finding of exceptional circumstance.

[7] Much of the evidence about whether or not the redundancy was genuine was before me. On that evidence it appears that performance concerns held by Greenacre were a significant factor in the dismissal. I am satisfied that Mr Hadfield had a strong case that the requirements concerning consultation and redeployment were not met. There also appears to be merit in Mr Hadfield’s submission that the employer still required the job to be performed. However, without hearing the evidence I can only observe that Mr Hadfield has a case with good prospects of success. This is a factor which stands in favour of a finding of exceptional circumstance in this case.

[8] There is no prejudice to Greenacre. This is a neutral factor.

[9] Nothing that I could decide in the circumstances of this case would affect the fairness as between Mr Hadfield and other persons in a similar position.

[10] Taking all of the factors into consideration I am not satisfied that the apparent merits of the case outweigh the other factors in establishing exceptional circumstances. I am not satisfied that exceptional circumstances exist which warrant an extension of time. The application is dismissed and an order to this effect will be issued.

COMMISSIONER

Appearances:

Mr B Hadfield appeared for himself.

Mr M Sloupe with Mr C Sy appeared for the Respondent.

Hearing details:

2015

Melbourne

May 1

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