Mr Graeme Dunn v Professional Investment Services Pty Ltd a subsidiary of Centrepoint Alliance Ltd T/A Professional Investment Services (Pis)

[2016] FWC 5565

[2016] FWC 5565

FAIR WORK COMMISSION

DECISION

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

Mr Graeme Dunn
v
Professional Investment Services Pty Ltd a subsidiary of Centrepoint Alliance Ltd T/A Professional Investment Services (PIS)
(U2016/6695)

COMMISSIONER HUNT BRISBANE, 15 AUGUST 2016

Application for relief from unfair dismissal – extension of time –extension not granted – application dismissed.

[1] On 4 May 2016, Mr Graeme Dunn filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming he was unfairly dismissed by Professional Investment Services Pty Ltd, a subsidiary of Centrepoint Alliance Ltd trading as Professional Investment Services (PIS).

[2] PIS have objected to the Fair Work Commission (the Commission) exercising its jurisdiction to deal with the application because it was lodged more than 21 days after the dismissal took effect. A further jurisdictional objection has been made by PIS, asserting that Mr Dunn’s dismissal in September 2015 was a case of genuine redundancy.

[3] The matter was initially allocated to Senior Deputy President Drake. Her Honour wrote to Mr Dunn requesting that he provide a written statement addressing why the time for filing the application ought to be extended.

[4] Mr Dunn filed written submissions in relation to the granting by the Commission of an extension of time. PIS filed written material in reply, opposing an extension of time being granted.

[5] The matter was allocated to me to determine whether an extension of time should be granted. My Associate wrote to the parties requesting they advise whether they wish to be heard in the matter or if it could be dealt with ‘on the papers’. Both parties consented to the matter being dealt with on the papers.

[6] This decision deals only with the Commission’s discretion whether to grant the extension of time.

Evidence of submissions of Mr Dunn

[7] Mr Dunn submits that he was employed as one of four Quality Assurance Officers at PIS within the Professional Standards/Compliance group. Mr Dunn’s role involved the auditing of financial plans and client files. Mr Dunn coached financial advisers and other staff who were employed to prepare plans.

[8] Mr Dunn met with his manager and a HR manager on 27 August 2015, and was informed that his position was to be made redundant. He was informed that this was as a result of a structure review process.

[9] Mr Dunn submits that he was shocked at the decision of PIS, and had not been consulted to determine if there were other roles that he could perform.

[10] In the material filed with the Commission, Mr Dunn stated, “…at the time of my redundancy I believed PIS/CPAL had the right to make me redundant. In hindsight it is clear that I rather than my position was made redundant.”

[11] It is submitted that Mr Dunn was not consulted in relation to his position becoming redundant. The relevant modern award covering Mr Dunn’s role is the Banking, Finance and Insurance Award 2010 (the Award).The Award contains a requirement to consult employees regarding major workplace change. This is discussed later in the decision at [58].

[12] Mr Dunn submits that on the day that he was informed of his role becoming redundant he was not prepared, and he did not have a person with him to represent him.

[13] It is Mr Dunn’s evidence that some months after he had been made redundant, he was informed by PIS employees that the three other Quality Assurance Officers has resigned their employment. Other managers and consultants had not been replaced when they had resigned their employment.

[14] It is Mr Dunn’s submission that employee turnover is extremely high, and it is common that employees’ roles are not replaced after they leave the employment of PIS.

[15] Mr Dunn’s evidence is that in approximately February or March 2016 he checked the PIS website and noticed that the role that he had been performing, albeit with a change of name was advertised. Mr Dunn contends that the role advertised met approximately 95% of the duties he had been performing up until 27 August 2015.

[16] It is Mr Dunn’s contention that a person employed by PIS to perform the role of Advice Development Manager had been hired and was attempting to complete the duties that Mr Dunn had earlier performed, together with the work of the three Quality Assurance Officers who had resigned.

[17] Subsequent to Mr Dunn’s review of the company website, he was informed by a current PIS employee that Mr Dunn had been recommended to the current Advice Development Manager as a suitable candidate for the role. Mr Dunn was not contacted in relation to the role.

[18] Mr Dunn submits that he undertook research shortly before lodging his application. Mr Dunn’s research led him to the conclusion that the redundancy process undertaken by PIS in August 2015 had not been genuine.

[19] Mr Dunn submits:

“In summary I was denied many of the requirements of the Fair Work Act of 2009. My role has been filled only recently, this has resulted in my application for unfair dismissal being made outside the 21 day period of my redundancy. Also at the time of my redundancy I was not aware of what constituted a non genuine redundancy, I was no aware that the role had to be made redundant rather than the person. I expected that PIS/CPAL had followed the correct procedure in my being made redundant.

I am requesting that the FWC allow an extension outside the 21 day period of my redundancy as I believe that the circumstances concerning this event were extenuating.”

[20] A short time before filing the application for unfair dismissal, Mr Dunn reviewed the PIS website and noticed that there was a role of Practice Transition Coordinator advertised. In August 2015, a fellow employee performing the role of Practice Transition Coordinator had been made redundant.

[21] Mr Dunn contacted the former employee, who advised Mr Dunn that shortly after she had been made redundant, the duties that had been performed by her were then added to the duties of an existing employee who was employed in a junior role. When that junior employee could not satisfactorily perform the role of Practice Transition Coordinator, another existing employee was given the duties to perform. Mr Dunn contends that employee has now resigned, and the role is now being advertised [in May 2016].

[22] It is Mr Dunn’s submission that the job title has changed with respect to the Practice Transition Coordinator role, and there are some additional requirements added. Mr Dunn suggests that these changes are “unnecessary, but have been added to possibly circumvent any redundancy issues”.

[23] Mr Dunn relies on the decision in BananaCoast Credit Union Limited v Cross and others[2012] FWAFB 10165. In that decision, the Full Bench of Fair Work Australia found that three employees who had been made redundant, and subsequently discovered that their roles had been filled by new employees could succeed in bringing their claims before the tribunal. The applications had been filed 11-12 days out of time.

[24] Mr Dunn submits that his case is similar to the applicants in BananaCoast. Mr Dunn states, “I was not aware that my redundancy was not genuine until I conducted my own research. What prompted my research was the advertising of my role, it would now appear to have been filled as the position is no longer advertised on the Centrepoint Alliance website.”

Evidence and submissions of PIS

[25] PIS contend that the extension of time request should not be granted on account of the application having been made approximately eight months after Mr Dunn’s redundancy occurred.

[26] PIS contend that Mr Dunn’s evidence that he was not aware of the redundancy process required to be followed by an employer should not be taken to be accepted as an exceptional circumstance.

[27] It is submitted that Mr Dunn became aware of his redundancy on 27 August 2015, and he accepted the redundancy and did not challenge it until the application was filed eight months later.

[28] Despite Mr Dunn being provided with mobile phone numbers of his manager and the HR manager present at the meeting, he did not contact them to ask any questions in relation to the termination.

[29] PIS submitted that there would be prejudice to it if Mr Dunn’s extension request is granted by the Commission. Former employees whose positions had been redundant might also seek to bring a claim of unfair dismissal. It is submitted that an employer who has made genuine redundancies should be able to continue with its business without having to defend frivolous claims.

[30] PIS disputes that the role earlier performed by Mr Dunn has recently been filled. It is the evidence of PIS that the role referred to by Mr Dunn arose as a result of a vacancy due to resignations. The role is in Sydney; Mr Dunn resides on the Gold Coast. PIS contends that it is not a new role.

[31] PIS disputes that the role that Mr Dunn was recommended for was equivalent to the Quality Assurance Manager role previously performed by Mr Dunn. The role referred to by Mr Dunn has come about as a result of resignations in late 2015 and a decision was made to have the roles performed in Sydney.

Relevant Statutory Provisions

[32] Section 394 relevantly provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[33] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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. [Endnotes not reproduced]

[34] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

Consideration

[35] The 21 day period for lodgement is calculated on the basis that the first day of the period is the day after the date that the dismissal took effect.²  If the final day of the 21 day period falls on a weekend or a national public holiday (where the Commission is closed) the timeframe will be extended to the next business day.³

[36] In order to be within the statutory time limit, Mr Dunn would have been required to file his application by 17 September 2015. The application was filed on 4 May 2016; 230 days out of time. It is necessary for me to determine if there are exceptional circumstances for the delay.

Paragraph 394(3)(a) - The reason for the delay

[37] The reason for the delay is claimed by Mr Dunn to be, “Until recently, I was not familiar with current regulations and employer obligations regarding genuine redundancy.”

[38] Mr Dunn further submitted that his role had been filled only recently, resulting in the application for unfair dismissal being made outside the 21 day time limit.

[39] Mr Dunn contends that he was not informed of his right to dispute the redundancy. It is put by Mr Dunn that the provision of two mobile numbers of managers and access to the Employee Assistance Program does not satisfy “the requirement to advise me of options available should I disagree with the redundancy.”

[40] In Nulty, the Full Bench said:

[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.

[41] Mr Dunn has not provided an adequate explanation as to why he did not undertake research in the period immediately following his dismissal. Further, Mr Dunn’s submission that his role has been filled by another person some eight months after his dismissal is not a satisfactory explanation for the reasons for the delay.

[42] Unless expressly required within an employment agreement, industrial instrument or statute, there is no obligation on an employer, having made an employee redundant, to inform them of their rights to dispute the dismissal.

[43] Mr Dunn’s explanation for the reasons for the delay does not support a finding for the granting of an extension of time.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[44] On the evidence before me, I am satisfied that Mr Dunn first became aware of the termination of employment on 27 August 2015 in a meeting held with him by PIS. This is therefore not a circumstance where Mr Dunn only became aware of his termination at some point after the time it occurred.

[45] Accordingly, this is a neutral factor in my consideration.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[46] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 4

[47] Mr Dunn submitted that he was not informed by PIS that he could dispute the dismissal.

[48] I have earlier determined that there is no express obligation on PIS to have informed Mr Dunn how he might dispute the dismissal.

[49] There is no evidence before me that Mr Dunn sought to dispute the dismissal until the filing of the unfair dismissal application. While there was a telephone discussion between Mr Dunn and his former manager in early November 2015, it was not in relation to the dismissal. The discussion was held in relation to a position that Mr Dunn was being nominated for by his former manager.

[50] Accordingly, this criterion does not resolve in Mr Dunn’s favour in my consideration of whether an extension of time for filing should be granted.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[51] It is submitted by PIS that if an extension of time for filing should be granted by the Commission, this could lead to additional applications being commenced by other former employees who had been made redundant.

[52] It has not been submitted by PIS that the delay in the application would cause it difficulty in relation to the evidence that would be required to be produced at hearing of the substantial issues.

[53] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to PIS if an extension of time is to be granted.

Paragraph 394(3)(e) - The merits of the application

[54] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[55] 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"⁵ for the purpose of determining whether to grant an extension of time to an applicant to make their application.

[56] In the matter of Kornicki v Telstra-Network Technology Group⁶ the Commission considered the principles applicable to the extension of time discretion under subsection 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:

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.

[57] To require an applicant to establish more than that the substantive application was not without merit would, as noted by the Full Bench in Kyvelos v Champion Socks Pty Ltd⁷:

… serve as an encouragement to other applicants for late acceptance pursuant to subsection 170CE(8) to put the whole of their evidentiary case and seek to cross examine the respondent’s witnesses to reduce the possibility of an adverse finding on the merits. This would lead to unjustifiable delay and expense.

[58] It is Mr Dunn’s evidence that PIS did not properly consult with him in relation to his position being made redundant. The Award covering the work performed by Mr Dunn during his employment requires consultation to occur regarding major workplace change.

[59] Clause 8.1 of the Award is reproduced below:

“8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[60] PIS submitted that the consultation process in the Award applies where there are major workplace changes. The changes during the relevant period were to the management reporting structure, resulting in a reduction of employees from 185 to 179. It is the submission of PIS that this does not constitute a major workplace change. In any event, all employees were kept up to date with details of changes by way of emails and team meetings.

[61] I respectfully disagree with the submissions of PIS. My view is that the loss of six jobs in a short period of time may constitute a major change. It is not, however, relevant that I determine this issue with the limited amount of evidence before me.

[62] It is sufficient to say that Mr Dunn’s submission, that there was a failure to consult pursuant to the Award is not without merit. Accordingly, I am not satisfied that Mr Dunn’s application is completely without merit.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[63] PIS stated that it did not wish to make submissions with respect to this consideration.

[64] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either are currently before the Commission, or have been decided in the past. 8 

[65] Mr Dunn has submitted that I should have regard to the decision in BananaCoast and grant the extension of time for the filing of the application. In BananaCoast, the three relevant employees discovered within one month that the roles they had been performing appeared to be filled by new employees.

[66] The circumstances in the above matter are very different to the particulars in this application. It is Mr Dunn’s contention that some eight months following his role becoming redundant he formed the view that the role had recently been advertised. It was only then that he researched information to form the view that he had not been properly consulted when the decision had been made by PIS to make his role redundant.

[67] If I were to grant the extension of time, it is my considered view that this might result in other people in similar positions seeking to bring applications before the Commission that are significantly out of time. If Mr Dunn is allowed to continue his application on information that he claims to have discovered a very long time after his role had become redundant, this may result in an unreasonable expectation that terminations due to redundancy can be challenged many months following the termination.

[68] I do not consider Mr Dunn’s discovery that his role may have been filled eight months following his redundancy to constitute exceptional circumstances.

[69] On that basis, consideration of this factor resolves in favour of PIS.

Conclusion

[70] I have considered the case authorities and made my findings in the matter.

[71] The reason for the delay in filing the application is that Mr Dunn made inquiries as to whether his redundancy was genuine shortly before filing his application for unfair dismissal in May 2016. This research was undertaken by Mr Dunn because he considered that he saw his role, or a role substantially similar to his role advertised in February or March 2016.

[72] No explanation has been provided by Mr Dunn for the delay in bringing an application for unfair dismissal for the period between March 2016 and 4 May 2016.

[73] In any event, even if Mr Dunn had challenged his redundancy in March 2016, upon seeing a role advertised that he considered was substantially similar to his earlier role, I would be unlikely to grant the extension as sought by Mr Dunn.

[74] The explanation provided by Mr Dunn does not demonstrate exceptional circumstances. The information available to Mr Dunn in May 2016 regarding consultation required by an employer is the same information that was available to Mr Dunn in September 2015 when he was within time to bring an unfair dismissal application.

[75] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in Mr Dunn making his unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for him for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Mr Dunn’s case but also to the criteria set out within s.394(3) of the Act.

[76] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Act and will issue an order dismissing Mr Dunn’s application as being out of time.

COMMISSIONER

1 [2011] FWAFB 975

2 Acts Interpretation Act 1901 (Cth) s.36(1) (item 6 – where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’). This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A).

3 Ibid s.36(2); See Hemi v BMD Constructions Pty Ltd [2013] FWC 3593

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

5 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14]

6 Kornicki v Telstra Network Technology Group [Print 3168, 22 July 1997] at page 8

7 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [15].

 8   Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP, 15 April 2010) [24]‒[29] (in passing)

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