Mr Len Elliss v Wymap Group

[2015] FWC 5668

[2015] FWC 5668

FAIR WORK COMMISSION

DECISION

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

Mr Len Elliss
v
Wymap Group
(U2015/8674)

COMMISSIONER ROE MELBOURNE, 18 AUGUST 2015

Application for relief from unfair dismissal - extension of time.

[1] Mr Elliss lodged his unfair dismissal application 65 days after the termination of his employment. He is seeking an extension of time. Wymap Group oppose the granting of an extension of time. The termination of employment took effect on 17 April 2015 and the application was lodged on Monday 22 June 2015.

[2] Mr Elliss was employed as the Branch Manager Victoria and he was dismissed for reasons of redundancy. He gave evidence that he was informed on Tuesday 16 June 2015 that a replacement manager had been employed by Wymap Group in Victoria, thereby calling into serious doubt the whole basis for his dismissal. Mr Elliss’s wife went to the office for another purpose on 16 June 2015 and discovered Mr Elliss’s office was occupied and collected the business card of the new occupant. Mr Elliss believes that the job title, Victoria Manager & Business Development, appears to cover the same roles as had been performed by Mr Elliss. Mr Elliss says he left a message for Just Relations Consultants on Tuesday 16 June but the earliest they were able to meet with him was Monday 22 June. Mr Elliss argues that it is obviously contrary to the notion of a job being redundant if the employer then appoints within a short time another person to do the same job.

[3] A Full Bench of the Fair Work Commission refused permission to appeal against a decision of DP Sams who granted an extension of time in similar circumstances. DP Sams found that:

“[51] In my view, this is a rare and unusual case. I am satisfied that an honestly and reasonably held belief that an earlier redundancy may not have been genuine, and the belief is based on plausible information, may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act.” 1

[4] Mr Elliss says that the reason for delay is that he assumed that the redundancy was genuine but found out that a replacement manager had been appointed. He acted within six days of receiving that information to make the application. The short delay before making the application is not unreasonable. Mr Elliss says as soon as he was aware that the position had been filled he took action to contact a representative. The period between that date and the date of lodgement was the time it took to get an appointment with the representative. Mr Elliss argues that there is a reasonable explanation for the whole period of the delay.

[5] Wymap argue that the Business Development Manager role is significantly different to the role occupied by Mr Elliss and in fact the position had previously reported to Mr Elliss. Mr Pawley for Wymap gave evidence in his statement that the Business Development role was specifically discussed with Mr Elliss prior to his termination. Mr Pawley says in his statement that Mr Elliss was told that Wymap did not consider him suitable for redeployment to that role. The role had been filled up until 26 October 2014. The position was filled on a labour hire basis for a while. Mr Pawley says that Mr Elliss was aware that Wymap intended to fill the Business Development role. Mr Pawley says that Mr Elliss was advised on a number of occasions that the business had engaged a specialist agency to locate a replacement and this was unlikely to be found before the end of February 2015.

[6] Under cross examination Mr Pawley accepted that:

● The person appointed to the State Manager and Business Development Manager role was performing many of the same duties as Mr Elliss had performed.
● There was no reason to contest Mr Elliss’ statement that he had performed the Business Development Manager role throughout his period of employment except for four months in 2014 when there was a separate Business Development Manager reporting to him.
● Mr Elliss had been seeking to have a person appointed to the Business Development Manager role after October 2014 and there had been some discussion about that matter and an indication that a person might be recruited after February 2015.
● There was no discussion with Mr Elliss about the possibility of his redeployment into the Business Development Manager position or about his suitability or otherwise for that position.
● There was no discussion with Mr Elliss about the filling of a Business Development Manager role in the period immediately before the redundancy or at the time of the redundancy. The last time Mr Pawley could recall that Mr Elliss had mentioned the need to fill the position was in March 2015.
● The discussion about possible redeployment at the meeting on 15 April 2015 when Mr Elliss was advised that his position was likely to be redundant was confined to the possibility of further training assistance on a consultancy basis and the possibility of a potential future role in Darwin and Cairns. I am satisfied that none of these matters were firm offers of redeployment.
● At the time Mr Elliss’ position was made redundant the Respondent had decided to seek to fill the State Manager and Business Development Manager role and it was in fact filled shortly thereafter.
● The new incumbent of the State Manager and Business Development Manager role does not perform the State Manager role for the Wymap or trucking side of the business but does perform the State Manager role previously performed by Mr Elliss for the larger Bailey or labour hire side of the business.
● Mr Elliss and the other staff were told at the time Mr Elliss was made redundant that his role would be taken by two existing persons who reported to Mr Elliss – Mr Griffiths on the trucking side of the business and Ms McFarlane on the labour hire side of the business.

[7] Mr Pawley gave evidence that “based on the sales decline (loss of business), lack of new customers and lack of follow ups generated by the previous Business Development Manager it was evident that Mr Elliss could not drive the required level of sales focus and performance required to not only sustain but grow the business in this market.” This statement suggests a performance reason for the dismissal rather than a decision to restructure.

[8] I am satisfied that the Victoria Manager and Business Development Manager position now occupied by Mr Diakoumakos is not the same job as that which was filled for four months in 2014 as a Business Development Manager. The 2014 job was a sales representative role and not a role which involved the management of other staff and the business. The new role shares the broader business management role which had been performed by Mr Elliss.

[9] I am satisfied that:

● At the time of the redundancy of Mr Elliss the intention to create the Victoria Manager and Business Development Manager position was not revealed to Mr Elliss.
● There was no discussion about the possibility of redeployment to the Victoria Manager and Business Development Manager position.
● There was no discussion with Mr Elliss about his suitability or otherwise for the role.
● Mr Elliss accepted that there was a genuine redundancy because he was led to understand that his role would be abolished and his duties spread between two existing employees who had reported to him. That was never the intention and shortly after the position was made redundant Mr Diakoumakos was appointed as the Victoria Manager and Business Development Manager. That position has many of the same responsibilities as the position previously occupied by Mr Elliss.

[10] I am satisfied that Mr Elliss was advised that his position was being made redundant. He was not advised of any redeployment options in Melbourne. He became aware that in fact a job which covered many of the same duties as he had performed had been filled. He considered that this meant either that the redundancy had not been genuine or that he should have been considered for redeployment. He then took action to immediately seek advice. There was a delay of some days before he could obtain that advice. The application was lodged on the same day as he obtained that advice.

[11] I am satisfied that there is a reasonable explanation for the whole of the period of the delay. I am also satisfied that the situation is similar to that in the Bananacoast matter. The legislation does not require a finding that the reason for delay is an exceptional circumstance. Rather, considering the factors specified in the Section 394(3), the Fair Work Commission must be satisfied that there are exceptional circumstances. I am satisfied that that it is not an ordinary or usual circumstance for an employee to be advised of redundancy and then shortly thereafter to become aware of facts which suggest that the reasons given may not have been genuine. I am satisfied that this situation may contribute to a finding of exceptional circumstance.

[12] The issue in contention in this case was the reasons for the delay (Section 394(a)). I put my findings in respect to Section 394(3)(b) to (f) to parties and they agreed with them.

[13] In summary:

● The reasons for the delay stand strongly in favour of a finding of exceptional circumstances.
● The date of awareness of the dismissal is a neutral factor.
● The action taken to dispute the dismissal is a neutral factor in the circumstances of this case particularly given that the lack of action is explained by the lack of knowledge.
● There is no prejudice to the employer. This is a neutral factor.
● The merits of the application are a neutral factor. If what the Applicant says is true there is a strong case but I have not had the opportunity to test the evidence and the Respondent strongly contests the facts.
● Fairness between Mr Elliss and others in a similar situation is a neutral factor and no submission was made about this matter.

[14] Taking all of the factors into consideration, I am satisfied that exceptional circumstances exist which warrant an extension of time. The extension of time is granted. Immediately following the hearing I conducted a conciliation conference and the parties reached a settlement in the matter.

COMMISSIONER

Appearances:

Mr G Dircks appeared for the Applicant.

Mr J Bailey and Mr A Pawley appeared for the Respondent.

Hearing details:

2015

Melbourne

August 14

 1   Rodney Cross & Others v Bananacoast Community Credit Union Ltd T/A BCU[2012] FWA 7681.

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