Mr David Williamson v Asahi Beverages Services Australia Pty Ltd T/A Schweppes Australia

[2012] FWA 3692

[2012] FWA 3692

FAIR WORK AUSTRALIA

DECISION

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

Mr David Williamson
v
Asahi Beverages Services Australia Pty Ltd T/A Schweppes Australia
(U2011/13278)

COMMISSIONER BOOTH BRISBANE, 30 APRIL 2012

Unfair dismissal – request for FWA to allow extension of time for lodgement of application.

[1] This is an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Brisbane on 7 November 2011. The applicant is Mr David Williamson (the Applicant) and the respondent employer is Asahi Pty Ltd (the Employer).

[2] The application states the date of the Applicant’s dismissal as 3 February 2011. Consequently the application was made 9 months after the 14 day time limit prescribed by subsection 394(2)(a) of the Act. The Employer made a jurisdictional objection to the application on the basis that the application had not been made within 14 days of the dismissal.

[3] On 29 February 2012, Fair Work Australia (FWA) conducted a hearing to deal with the question of extension of time. At the hearing the Applicant appeared for himself and the Employer was represented by leave by MrDavid Miller from Australian Industry Group.

[4] During the hearing the Applicant provided evidence as a witness. The Applicant attested to the veracity of the contents of the documents that he had provided in support of an extension of time. The Employer adduced evidence from one witness, Mr Zane Sinnamon who provided a statement on behalf of the Employer.

Factual Background

[5] The Applicant had worked for the Employer since 2000. The Applicant was employed in a position of Quality Controller and assistant to the Quality Controller Manager.

[6] Following the Queensland floods in January 2011, the Brisbane factory of the Applicant’s Employer, then P & N Beverages Australia Pty Ltd (P&N), was inundated with water one storey deep.

[7] Mr Williamson accepted a redundancy payment in February 2011, and ceased his employment with P&N. Mr Williamson’s initial view was the redundancy was a result of the factory closing due to the flood. However in September 2011, he changed his mind and now considers that the redundancies were not genuine but were used by the Employer to pay employees to do the same job on lesser pay. His unfair dismissal claim is based on his ceasing employment not being a genuine redundancy.

[8] He filed his claim on 7 November 2011, a period of over 9 months since his alleged dismissal.

[9] In the intervening period, the business was transferred by way of sale to another party, the Employer in this application.

[10] The Employer objects to the application on the basis that it was lodged out of time and that the Applicant accepted the Employer’s proposal for a voluntary redundancy.

The Applicant’s Case

[11] Mr Williamson, the Applicant in this unfair dismissal matter, was employed at P&N’s Brisbane plant from 26 October 2000 until early February 2011 when, following the Brisbane floods, the plant was closed and he took a “voluntary redundancy”, the true character of which he now disputes. The payment was a sum of $13,057.49, and together with leave and other entitlements, he received a final payment of $19,103.32. 1

[12] The Applicant asserts that he was loyal employee, and the Employer does not dispute this. He is 63 years of age, and possesses a Bachelor of Science degree from the University of Queensland among other relevant qualifications, and claims 30 years experience in quality control work. He expresses in strong terms his desire to continue working, and that he offered himself, with no avail, for re-employment by P&N.

[13] Mr Williamson provided statements to the Tribunal, gave oral evidence on his own behalf, and was cross-examined by Mr Miller for the Employer.

[14] Mr Williamson provided comprehensive details about his experience and qualifications, employment and the circumstances around his departure from employment and attempts to regain employment. He acknowledges that his application was lodged with FWA well outside the statutory time limit, and here seeks an extension of time, which FWA may, in its discretion, grant if there are exceptional circumstances taking into account the factors enumerated in section 394(2) of the Act.

[15] In his evidence, the Applicant says that he contacted his former Employer many times to seek both re-engagement and assistance with alternative employment by way of references. While the Employer expressed a willingness to assist with work references, no offer of work was forthcoming.

[16] He also disputes the voluntary nature of the redundancy, saying:

● I was forced to take it. 2
● I’d be stood down and simply sacked eventually, I was forced to take the redundancy otherwise I was going to get no money at all. 3
● I said to Mr Kefifi [sic] … that, “I’m 63 years old. I won’t get another job. I don’t want to go.” My job isn’t gone … he said to me in this aggressive attitude, “If you don’t take it, you won’t get the money and that’s it. I’ll just stand you down,” so I took the – I’m taking it because I felt that I was put in a no win situation.” 4

[17] In the Applicant's written statement he states as follows:

“I was called into an interview some three weeks after the floods (11/1/11) at Larapinta.... I asked for time to think about the redundancy that was offered. On 4 February Kefafi (not mentioned by Mr Miller or by Zane in his statement) with myself and Zane had an interview. I rejected the redundancy.”

[18] The Applicant then refers to the fact that he is 63 years old and the duties he performed at the factory “are not gone.”

[19] The Applicant said the offer was put this way“this is it- take it or you won’t see it again”.

[20] The Applicant submits that an extension of time should be granted for the following reasons:

● There was no fair work contract installed at P&N at the time. If there had been the Applicant would have known of the 14 day time limit. The Applicant noted that the collective agreement was made under the Workplace Relations Act 1996 which was limited to wages and conditions. It did not contain details about unfair dismissal time limits;
● The Applicant’s union delegate Mr Greg Davey of United Voice would not comment on the redundancies and there was no further discussion with him.

[21] The Applicant’s evidence on the question of the 14 day time limit is as follows: 5

“Basically ... I didn't know there was a 14 day period because we do not have a Fair Work contract installed. The second one is that my union officials wouldn't talk to me. They're very unhappy about what happened. So it wasn't until I talked to the Fair Work Ombudsman in Adelaide that I became aware - this was up to about eight months after this that I became aware that there was a 14 day limit and it was then I approached Caxton lawyers, and they said to me, well, there is a case in their opinion, but it's up to FWA as to whether they will allow this. They did say it was a very difficult situation; that the 14 day limit was important.”

[22] In support of the dates and nature of advice received from Caxton Legal Service, Mr Williamson submitted the advices to the Employer and the Tribunal. The first of these was dated 20 October 2011 and the second 5 December 2011.

[23] Although these advices have been accepted as evidence, it is only as to the dates of the meetings and the veracity of the meetings with lawyers. No weight has been given to the advice contained in them: it is legal advice to the Applicant.

[24] This application was lodged in Brisbane on 7 November 2011.

The Employer’s Case

[25] The Employer relies on the case ofBrodie-Hanns v MTV Publishing Ltd, 6 a case decided under the Industrial Relations Act 1988.

[26] Brodie-Hanns has been cited in numerous cases by Courts and industrial tribunals, with some qualifications. 7 It is convenient to set out the factors from that case at page 299:

1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3) Prejudice to the employer including prejudice caused by delay will go against the granting of an extension of time.
4) The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.
5) The merits of the substantive Application may be taken into account in determining whether to grant an extension of time.
6) Consideration of fairness as between the Applicant and other person in a like position are relevant to the exercise of the Court's discretion.

[27] The Employer submits there was no valid explanation for the Applicant's delay in lodging the application of FWA.

[28] The Applicant’s explanation of the delay is that having learned on 23 September 2011 that the Employer’s premises at Goodna were once again operational and that the work of a kind previously performed by him was again being performed, his position was no longer redundant.

[29] The Employer's response is that at the time there was an offer of the voluntary redundancy the Employer advised that it did intend re-opening in the future. An option of being stood down and re-employed at re-opening was offered, but the Applicant chose redundancy. There was no misrepresentation.

[30] The Employer does not concede there was a valid explanation for the Applicant’s delay until September, but does point out that on the Applicant’s own evidence he did not lodge within 14 days after becoming aware of the re-opening. There was a delay of almost 7 weeks before the application was lodged. The Employer says that the Applicant provides no explanation for that delay.

[31] The Employer further argues that the Applicant took no steps to contest the termination as a dismissal before lodging this application. Contact by the Applicant with the Employer between February and November was for the purposes of seeking a reference to prospective employers. In this regard the Employer says Mr Sinnamon says he agreed to assist the Applicant.

[32] The Employer submits that it would suffer prejudice if the extension of time was granted and it would be unreasonable to expect the Employer to consider re-employing the Applicant for two reasons. First, the Applicant accepted a redundancy and received a substantial payment by way of severance. Second, the business has in the interim been purchased from the Applicant’s Employer at the time of the redundancy by a separate and independent entity.

[33] In oral submissions Mr Miller added the following:

“No amount of due diligence, no matter how perceptive or questioned, would they have actually uncovered at any stage the fact that this applicant had an unfair dismissal in the wind, so it wasn't as if they took this on with notice it simply wasn't on the agenda, so they would suffer quite unreasonable prejudice because of the lengthy delay” 8

[34] As to the merits of the substantive application, again in oral submissions, Mr Miller submitted that the inundation of the factory because of the flood was not disputed; nor was the fact that it closed down or that it would be 6 to 12 months before it would again be operational. The Applicant was offered a choice either to be stood down and re-engaged as and when the business became operational again or to accept the redundancy. The Employer submits that the Applicant took financial advice and three days later accepted the redundancy.

[35] In summary, Mr Millersubmitted that there were no exceptional circumstances in this case that would warrant an extension of time.

Consideration

[36] Subsection 394(3) of the Act provides FWA with a discretion to extend the time limit of 14 days as fixed by subsection 394 (2). Subsection 394 (3) is in the following terms:

“(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(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.”

[37] As can be seen from subsection 394(3), FWA must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which FWA is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a prescribed time, discussed below.

[38] Importantly the onus rests with an Applicant to convince FWA to exercise the discretion to extend time.

(a) Reason for the delay

[39] The Applicant says the reasons for his delay in making this application are:

i. The collective agreement did not specify a 14 day time limit;

ii. The union provided no comment and had no further discussion with him;

iii. He took no action between 4 February 2011 and November 2011 because:

● he was not aware of the statutory time limit until he spoke with the Fair Work Ombudsman about ‘8 months after the redundancy’, however, the Applicant did not identify a particular date that this advice was provided by the Fair Work Ombudsman;
● on the 20 October 2011 he obtained legal advice from Caxton Legal Service;
● he sought and obtained further legal advice after the application was filed on 7 November 2011.

[40] On the Applicant’s own evidence there are two periods of delay. The first was when he was of the belief that the redundancy was genuine. His belief changed on 23 September 2011. The second was the delay from that date until the application was lodged.

[41] He did not file his application for another 44 days on the 7 November 2011. During this period he received advice about the date from the Fair Work Ombudsman and advice from Caxton Legal Service.

[42] Even after receiving advice from Caxton Legal Service on 20 October 2011, the Applicant did not file the application until 7 November 2011, which is more than 14 days after receiving the advice. There is no apparent reason for the application being filed more than 14 days after receiving the advice.

[43] The lengthy delay of 9 months between ceasing employment and lodgement is in itself raises a significant burden on the Applicant. Combined with the further delay after both his change of mind about the genuineness of the redundancy and the advice from the ombudsman and the legal service indicate that the delay by the Applicant is unacceptable and not adequately explained.

(b) Awareness of the dismissal

[44] The Applicant was clearly aware that his employment ceased on 4 February 2011 when he signed the voluntary redundancy document.

[45] Mr Williamson argued that the termination was not a genuine redundancy but that he did not become aware of this until September, from which point he believed that he had been dismissed rather than being made redundant.

[46] As noted above, there is still a significant delay between the September date and the filing date.

(c) Action taken to dispute the dismissal

[47] The Applicant took no action to dispute the termination as a dismissal although the Applicant does dispute the number of enquiries made to obtain referees from his previous Employer.

(d) Prejudice to the Employer

[48] The Employer stressed the potential prejudice on the following factors:

i. the length of the delay;
ii. the transfer of the business to a new entity;
iii. the Applicant has accepted a redundancy payment.

[49] The question of prejudice was commented on by Marshall J in Brodie-Hans (at 300):

“Prejudice to the employer including prejudice caused by delay will go against the granting of an extension of time … The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.”

[50] I agree with the Employer that, on transfer of business, no amount of due diligence could potentially have established that the Applicant might lodge an unfair dismissal claim some 9 months after ceasing employment. This, and the factors in [48] above suggest a degree of prejudice to the Employer.

(e) The merits of the application

[51] As noted above, the merits of application are not determined in this jurisdictional step. However, they are a relevant consideration stated in section 394(3)(e).

[52] This factor is directed towards some elementary assessment of the potential prospects of the matter at hearing if the extension of time was granted. The Employer submitted that this was a case involving limited merit, that given the Queensland floods, it was fact that all employees were offered either to be stood down or take voluntary redundancy. The fact that the position, some 8 months later was re-instated did not challenge the option taken by the Applicant. Conversely the Applicant submitted that he had been treated unfairly and that the redundancy was not genuine.

[53] If the termination was as a result of a genuine redundancy (a matter I am not deciding here), that would be a matter the Tribunal would have to consider before determining the merits by section 396:

396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: …

(d) whether the dismissal was a case of genuine redundancy.

[54] Genuine redundancy is defined by section 389:

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.

[55] The Employer argues that the payment made to the Applicant in February 2011 was a “voluntary redundancy”. I have not heard evidence in detail on the nature of the payment and cannot therefore determine if it was a genuine redundancy for the purposes of the Act. If it was a genuine redundancy however, the application would lack merit: an unfair dismissal application must fail if FWA is satisfied that “the dismissal was a case of genuine redundancy”. 9

[56] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. There is no disputing that there was a large flood, and a long period when no employees could work. After some months some employees did return to employment and then over time a greater number of employees returned to work or other new employees were hired. The Applicant received a payment described as a voluntary redundancy. The Applicant’s case may not be without merit, but at its highest, it is an arguable case. The Employer’s case is clearly arguable.

(f) Fairness as between the applicant and other persons in a similar position

[57] No evidence was led about other persons in a similar position to the Applicant that would assist either party.

Exceptional Circumstances

[58] Having examined each of the factors contained within subsection 394(3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in Johnson v Joy Manufacturing. 10 The consideration therein established a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394(3) was unusual or out of the ordinary.

[59] In Nulty v Blue Star, 11 a Full Bench described of exceptional circumstances in the following terms:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

Conclusion

[60] In this instance the Applicant asks for FWA’s discretion to extend time in respect to a long delay of 9 months, including a period of 7 weeks after the Applicant formed a belief that the redundancy was not genuine. The factors that are contained in paragraphs (a) to (f) of subsection 394(3) of the Act have been considered.

[61] There was no evidence establishing a valid or proper reason for either delay. This alone is sufficient reason to refuse to decline to exercise the discretion. However, combined with the potential prejudice to the Employer, the fact that other factors did not assist the Applicant's claim (being at best neutral) and that none of these factors produced a situation out of the ordinary course, unusual, special or uncommon, it cannot be said there are exceptional circumstances.

[62] Consequently FWA is unable to exercise the discretion to extend time. The application has been made beyond the time limit set by subsection 394(2) of the Act and the application is dismissed. An Order to this effect will be issued.

COMMISSIONER

Appearances:

Mr D Williamson for himself.

Mr D Miller from Australian Industry Groupfor the Employer.

Hearing details:

2012.
Brisbane:
29 February.

 1   letter dated 4 February 2011 from Darek Kosla, National Operations Manager, P & N Beverages Australia Pty Ltd to Mr

Williamson

 2   Transcript of proceedings, dated 29 February 2012 at PN102. See also PN107.

 3   Transcript of proceedings, dated 29 February 2012 at PN126

 4   Transcript of proceedings, dated 29 February 2012 at PN145

 5   Transcript of proceedings, dated 29 February 2012 at PN158

 6 (1996) 67 IR 298

 7   See Damien Haining v Deputy President Drake & Ors [1998] FCA 1168 (Full Court): “the principles there collected are a mere guide to the exercise of an open textured discretion. It is incorrect to treat them as if they were statutory criteria; and still more to pick out one of them for consideration in isolation from other relevant factors”

 8   Transcript of proceedings, dated 29 February 2012 at PN180

 9   section 385(d) and section 729(1)(b)(iii): “Under s 385 of the Act, a dismissal which is a genuine redundancy cannot be an unfair dismissal”: O'Grady v Royal Flying Doctor Service of Australia, South Eastern Section[2010] FWA 6177; [2010] FWAFB 6177. See also Trembath v Kabi Organic Golf Course[2011] FWA 8346; White v Kabi Organic Golf Course[2011] FWA 8348;

 10   [2010] FWA 1394

 11   [2011] FWAFB 975

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