Mr Clark Largo v Scantech Offshore Pty Ltd

[2018] FWC 1826

[2018] FWC 1826

FAIR WORK COMMISSION

DECISION

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

Mr Clark Largo
v
Scantech Offshore Pty Ltd
(U2018/268)

DEPUTY PRESIDENT COLMAN MELBOURNE, 6 APRIL 2018

Application for relief from unfair dismissal – application made outside the time prescribed – whether there are exceptional circumstances – extension of time refused – application dismissed

[1] This decision concerns an application by Mr Clark Largo for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). Section 394(2) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). The date that Mr Largo’s dismissal took effect is identified in his application as 1 October 2017, but he did not lodge his application until 8 January 2018. He seeks an extension of time. His former employer, Scantech Offshore Pty Ltd (company), opposes the grant of an extension of time.

[2] Mr Largo’s application for an extension of time was heard before me as a determinative conference conducted by telephone on 16 March 2018. Mr Largo appeared for himself and gave evidence. The company was represented by counsel, with permission pursuant to s.596. Mr Boczar gave evidence for the company.

[3] There was a conflict as to when Mr Largo’s dismissal took effect. Mr Largo’s evidence was that he was told on 20 September 2017 that his dismissal would take effect on 29 September 2017, and that his employment ended on that date. This is two days earlier than the date indicated in Mr Largo’s application.

[4] The company agreed that Mr Largo was informed about his dismissal on 20 September 2017, but contended in its written materials that Mr Largo was afforded an extended notice period, and that the dismissal did not take effect until 27 October 2017. At the hearing, Mr Boczar said that in fact the dismissal took effect on 31 October 2017. He said that Mr Largo was not required to work out the notice period, except for on a few days. This evidence accords with Mr Largo’s position that he performed some further work for the company from 4 to 9 October 2017.

[5] In the material filed by the company in response to the application, there is a termination letter dated 20 September 2017, stating that Mr Largo’s employment would end on 27 October 2017. However, the letter is not signed, and Mr Largo says he never received it.

[6] On Mr Largo’s version of events, his unfair dismissal application should have been filed by 20 October 2017. On Mr Boczar’s evidence, the application should have been lodged by 21 November 2017. In either case, the application is out of time. However, it is necessary for me to make a finding on this matter.

[7] I accept Mr Boczar’s evidence that Mr Largo’s dismissal took effect on 31 October 2017. I accept his explanation that the company wished to afford Mr Largo an extended period of notice that would prolong his period of employment and allow him to look for other work whilst in employment. This evidence is also consistent with the agreed fact that Mr Largo performed some work for the company during October 2017.

[8] Accordingly, Mr Largo’s unfair dismissal application should have been lodged in the Commission by not later than 21 November 2017. It was lodged 48 days late.

Background

[9] I briefly summarise the factual background to this matter, drawing from the written materials filed in the Commission by Mr Largo and the company, as well as evidence given orally during the hearing by Mr Largo and Mr Boczar.

[10] Mr Largo was employed by the company as a diesel mechanic from early 2013 until his dismissal for reason of redundancy on 31 October 2017. He contends that his dismissal was unfair because he was given a low score against the relevant selection criteria that the company used to determine which employees would be made redundant. He says that this low score was not justified and disputes the evidentiary basis for his selection for redundancy. In particular, Mr Largo says that he was compared to employees doing different kinds of work. He submitted that he was offered the possibility of working for the company in Malaysia, but declined the offer. Further, Mr Largo said that he was not given a letter of dismissal or a separation certificate, and received only his redundancy payments.

[11] Mr Largo explained that he is the holder of a section 457 visa, and that it imposes limitations on his ability to stay in Australia in circumstances where his employment ends for reason of redundancy. He contended that an element of unfairness in his dismissal was that the company sponsored his application for permanent residence in Australia, which may now be at risk. The company denied that it sponsored Mr Largo’s application for permanent residence, and says that Mr Largo pursued this application at his own expense.

[12] The company contended that Mr Largo was dismissed for reason of genuine redundancy. It required fewer employees to work in the position held by Mr Largo in its offshore operations team, and ranked the various employees performing this work based on a skills assessment. The company’s position was that Mr Largo scored poorly relative to others, and he was therefore selected for redundancy.

[13] The company submitted that the employment of Mr Largo was not covered by any award or industrial agreement, and accordingly there were no obligations on the company to consult with Mr Largo about his redundancy. Despite this, the company contended that it did in fact consult with him about the proposed redundancy.

[14] Mr Largo explained that following his dismissal, he and his family were distressed about the implications that his redundancy would have for their applications for permanent residence, and that he had hoped the company would reverse its decision. Mr Largo was also concerned about how he would repay a loan that he had taken for the purpose of paying the fee for his application for permanent residence. Mr Largo said that he sought advice about his options, although it is not clear from whom or for what purpose. He also said that following his dismissal he was focused on obtaining another job as quickly as possible, because of the limitations imposed by the s.457 visa.

[15] Mr Largo said that during the end of year holiday period, it was suggested to him, apparently by a friend or acquaintance, that he consider an application to the Fair Work Commission in connection with his redundancy. He filed his unfair dismissal application shortly afterwards.

Consideration

[16] Before I deal with the specific matters that the Act requires me to take into account, I will make some brief observations about the principles that are to be applied in considering whether I should exercise my discretion to extend time. The Act allows me to extend the period within which an unfair dismissal application must be made, but only if I am satisfied that there are ‘exceptional circumstances’.

[17] The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 The meaning of ‘exceptional circumstances’ was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)2, where it was noted 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. The Full Bench also noted 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.3Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning is applicable also to s.394(3).

[18] In order for Mr Largo’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time to make the application, under s.394(3). This section 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.

[19] I will deal with these matters in turn.

Reason for the delay

[20] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to a credible, 4 acceptable5 or a reasonable explanation.6

[21] One reason for the delay advanced by Mr Largo is that he is not originally from Australia and did not know about the possibility of bringing an unfair dismissal application in the Commission until late 2017. However, these are not unusual circumstances. I note that there is no evidence that Mr Largo sought legal advice about how to challenge his redundancy, or that he endeavoured to research his legal rights on the internet or elsewhere. Such sources could have provided him with information necessary to lodge an application. There is material about how to lodge unfair dismissal applications on the Commission’s website. In Nulty, the Full Bench noted that ignorance of the statutory time limit is not itself an exceptional circumstance. 7

[22] Mr Largo was in some distress about the loss of his job and focused on seeking alternative employment. However, the loss of employment will commonly be distressing, and looking for new work is a routine circumstance when a person has been dismissed. There is nothing out of the ordinary in this regard.

[23] I recognise that in the present case, Mr Largo also had concerns about his immigration status, and that this was an added worry and distraction for him in the period after his dismissal. However, the presence of other concerns or worries in life is not exceptional. I do not consider this or the other matters above to provide a credible, acceptable or reasonable explanation for Mr Largo’s delay in lodging an application for unfair dismissal under the Act. Nor do I consider that the combination of the above matters provides such an explanation.

[24] The lack of a credible, acceptable or reasonable explanation for the delay in Mr Largo lodging his unfair dismissal application weighs against the granting of an extension of time.

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

[25] There was evidently some confusion as to the precise date on which Mr Largo’s dismissal took effect. I have found that it took effect on 31 October 2017. In any event, the parties agreed that Mr Largo was advised of his dismissal before it took effect, namely on 20 September 2017. As a consequence, Mr Largo had the full period of 21 days to lodge an unfair dismissal application. This is not a case where the person became aware of the dismissal after the date on which it took effect, and therefore did not have the full benefit of the 21 day period for lodging an unfair dismissal claim.

[26] This consideration therefore does not weigh in favour of an extension of time.

Action taken to dispute the dismissal

[27] Mr Largo contended that he questioned the company about the low score that he received in connection with the selection criteria for redundancy, and that he sought to understand how his scores compared to those of others who had been evaluated. The company’s response to him was that the scoring process was fair. Mr Largo acknowledged that he did not dispute this further as he did not know how to. Additionally, he said that he did not want to ‘burn his bridges’ with the company and hoped that it would reconsider the decision to make him redundant, or rehire him.

[28] In my view, there is a sufficient basis to conclude that Mr Largo took at least some steps to dispute his dismissal. This is a factor that weighs slightly in favour of an extension of time.

Prejudice to the employer

[29] I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[30] The present application to extend time is essentially an interlocutory matter that does not allow for a substantive testing of the merits of the application. There is insufficient material before me to make any detailed assessment of the merits. However, in my view, the application is not without difficulties.

[31] The company objects to the application on jurisdictional grounds, contending that the dismissal was a case of genuine redundancy. Pursuant to s.385, a person can only be unfairly dismissed if the Commission is satisfied that, among other things, the dismissal was not a case of genuine redundancy. Section 389 of the Act provides that a dismissal will be a ‘genuine redundancy’ if 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 enterprise; and the employer complied with any relevant consultations obligations in an award or enterprise agreement.

[32] The company contends that it experienced a reduction in demand for work of the kind previously undertaken by the applicant, and that he was selected for redundancy by reference to objective criteria. It submits that Mr Largo was advised of the selection criteria and given an opportunity to ask questions about them. He received a low score and was made redundant, along with several other employees. Mr Largo disputes the fairness of his selection for redundancy. He says that he does not understand why his employment was made redundant, and that the selection process was unfair, because he was compared to employees who undertook different types of work.

[33] According to the company, Mr Largo’s employment was not covered by an award or enterprise agreement. Mr Largo did not contend otherwise. There is no apparent basis to conclude that the company had any relevant consultation obligations in relation to the redundancy.

[34] Under s.389(2), a person’s dismissal will not be a case of 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. The applicant was offered, but declined, an alternative role in Malaysia. This tells against the ‘exception’ in s.389(2) being engaged in this case, but no final conclusions can be drawn about this.

[35] These matters, and the merits more generally, would need to be tested, including under cross examination, if an extension of time were granted and the matter proceeded. However, there appears to me to be a strong prima facie case that Mr Largo’s dismissal was a case of genuine redundancy.

[36] Accordingly, while Mr Largo has an arguable case, the merits of his application are in my view weak. However, given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell against an extension of time.

[37] In the circumstances I consider the merits of the case to be a neutral consideration.

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

[38] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Mr Largo and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[39] The time limit that applies to the exercise of a person’s right to bring an unfair dismissal application reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[40] Having regard to all of the matters that I am required to take into account under s.394(3), I am not satisfied that the requisite exceptional circumstances exist. There is no credible, acceptable or reasonable explanation for the delay in filing the application. The merits of the case are arguable but weak. Apart from some action taken by Mr Largo to dispute the dismissal, the other factors do not weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[41] I decline to grant an extension of time under s.394(3). Accordingly, Mr Largo’s application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Largo for himself

Ms Bretherton for Scantech Offshore Pty Ltd

Hearing details:

2018

Melbourne

Perth (by telephone)

16 March

<PR601564>

 1   Stogiannidis v Victorian Frozen Foods DistributorsPty Ltd[2018] FWCFB 901 at [14]

 2   [2011] FWAFB 975

 3   At [13]

 4   Stogiannidis, op. cit., for example at [39]

 5   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 6   Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP, at [16]

 7   At [14]

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