Mr Jason Cherry v Vocus Pty Ltd

[2020] FWC 4757

[2020] FWC 4757

FAIR WORK COMMISSION

DECISION

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

Mr Jason Cherry
v
Vocus Pty Ltd
(U2020/11026)

COMMISSIONER MCKINNON MELBOURNE, 4 SEPTEMBER 2020

Application for an unfair dismissal remedy – effective date of dismissal – extension of time refused.

[1] Jason Cherry was employed as a Product Specialist – Commander Voice Products for Vocus Pty Ltd from 12 November 2018 until his employment ceased by reason of redundancy on 17 July 2020.

[2] On 13 August 2020, Mr Cherry applied for an unfair dismissal remedy. There is a no dispute that the application was filed 6 days outside the statutory time limit of 21 days.

[3] The question is whether to allow additional time for Mr Cherry to make the application.

Extension of time

[4] Section 394(3) of the Act sets out certain factors that must be considered in deciding whether additional time should be allowed. These are the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position.

[5] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon”. 1 The circumstances “need not be unique, or unprecedented, or very rare”.2

Relevant factors

[6] Reason for delay and actions taken to dispute the dismissal: After accepting his redundancy on 30 June 2020, Mr Cherry ceased work on 17 July 2020. Another Product Specialist, Andrew Baietta, was offered employment in a role that is either the same or substantially similar to Mr Cherry’s former role on 16 July 2020, at a lower rate of remuneration. At the time, Mr Baietta was employed on a fixed term contract expiring in August 2020. He accepted the offer of permanent employment and commenced in the new role on 20 July 2020. On 12 August 2020, Mr Cherry became aware of Mr Baietta’s LinkedIn profile bearing the same position title as his former role. He contacted Mr Baietta who advised him that he had been appointed to the role approximately a week earlier and “felt bad that he had taken his job”. It is an unfortunate but not uncommon experience for those whose roles have been made redundant as a result of an organisational restructure. Mr Cherry lodged his application for an unfair dismissal remedy on 13 August 2020. His prompt action to file the application after speaking with Mr Baietta weighs in favour of a grant of additional time.

[7] Whether the person first became aware of the dismissal after it had taken effect: This is not a relevant consideration.

[8] Prejudice to the employer (including prejudice caused by the delay): There is no evident prejudice to Vocus if the application proceeds. It is a neutral consideration.

[9] Merits of the application: The merits of the application have not yet been heard or considered in any substantive way. At a prima facie level, it is unlikely to overcome the jurisdictional hurdle that Mr Cherry’s dismissal was a case of genuine redundancy. The redundancy occurred in the context of a significant business restructure affecting approximately 100 employees. There was a decision to reduce the number of Product Specialists in the team from 5 to 3. Mr Cherry was selected for redundancy from within this group based on a group skills assessment and another employee was moved to a different team. There was a consultation process. Mr Cherry accepted the redundancy and waived an offer by the business to consider him for redeployment. Mr Baietta was then redeployed into one of the remaining Product Specialist roles. The merits weigh against a grant of additional time.

[10] Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons is a relevant consideration.

Conclusion

[11] It is understandable that Mr Cherry wishes to test the genuineness of his redundancy. These are difficult times in the Victorian labour market and in the economy generally. However, his application was made without the benefit of relevant facts known only to the company in connection with a significant restructure of its business. On balance, I am not persuaded that there are exceptional circumstances in this case that would warrant the grant of additional time. Even if there were, the likely jurisdictional hurdle tips the balance against an extension of time being granted.

[12] The application is dismissed.

COMMISSIONER

Appearances:

J Cherry on his own behalf.
G Carroll of Sladen Legal for the respondent.

Hearing details:

2020.
Melbourne (by video link):
September 2.

Printed by authority of the Commonwealth Government Printer

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 1   Nulty v Blue Star Group (2011) 203 IR 1 at [13].

 2   Ibid.