Mr Matthew Anderson, Mr Brendan Neil, Mr Trent Johnson, Mr Keith Greer, Mr Simon West & Mr Haydyn Lucas v Theiss Degremont Joint Venture

[2011] FWA 6065

[2011] FWA 6065

FAIR WORK AUSTRALIA

DECISION

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

Mr Matthew Anderson, Mr Brendan Neil, Mr Trent Johnson, Mr Keith Greer, Mr Simon West & Mr Haydyn Lucas
v
Theiss Degremont Joint Venture
(U2011/9569, U2011/9698, U2011/9700, U2011/9708, U2011/9710, U2011/10340)

COMMISSIONER LEWIN MELBOURNE, 9 SEPTEMBER 2011

Unfair dismissal - extension of time - genuine redundancy

[1] These matters are all applications for relief in respect of alleged unfair dismissal. All of the applications have been made outside the time for doing so prescribed by s.394(2)(a) of the Fair Work Act 2009 (the Act).

[2] In each case the applicant seeks that the Tribunal allow a further period in order that the application may be made under s.394(3). The delay in filing the applications ranges between five and 20 days. The explanation for the delay in each case is the same.

[3] I heard the applications on 29 August 2011 and 1 September 2011.

[4] At the hearing of the applications on 1 September 2011 I advised the parties that due to my imminent absence on leave I would attempt to expedite the determination of the applications for the Tribunal to allow a further period under s.394(3).

[5] The applicants were all employees of Theiss Degremont Joint Venture (Theiss Degremont) employed on the Victorian desalination plant construction project at Wonthaggi. The reason given for the termination of their employment was, in all cases, that their employment had become redundant. The applicants are a subset of a larger number of employees of Theiss Degremont whose employment was terminated for reasons of redundancy around the same time. A number of those employees have made applications, within time, which have been the subject of conciliation which has not settled the applications, those applications have been referred for arbitration.

[6] Theiss Degremont objects to all of the applications, both those made within time and those before me, on jurisdictional grounds, namely that the terminations were all cases of genuine redundancy. If Theiss Degremont is correct the Tribunal has no jurisdiction to hear and determine any of the applications in either group. It would therefore seem highly desirable that all of the applications be heard together in relation to the jurisdictional objection of Theiss Degremont and should be able to be programmed without the need to await my return from leave, should a further period be allowed for the applications before me to be made.

[7] I have decided to issue my decision and to provide more extensive reasons in due course.

[8] Section 394(3) is the statutory direction in relation to the determination of the question to be decided and is set out below:

“(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.”

[9] I must be satisfied that there are exceptional circumstances taking into account the evidence before me and the considerations identified in the relevant statutory provisions which I now do in a summary way.

a) The reason for the delay in filing the applications is that, as a result of certain interactions between Theiss Degremont and the Union representing the applicants, the applicants, reasonably in my view, apprehended that making an unfair dismissal application would likely cause a disadvantage to their prospects of being rehired at the desalination plant, because of statements made by Theiss Degremont about Theiss Degremont’s intentions with regard to certain proposed procedures for establishing and managing a labour pool, from which persons would be drawn when positions became available at the desalination plant construction project, within which certain persons would be given priority for re-employment.

b) On what is before me it is most likely that the applicants became aware of the termination of their employment before it took effect.

c) The applicants disputed the dismissals through their representatives.

d) I see no prejudice to Theiss Degremont of the relevant kind which would arise from allowing the further period required for the applications to be made. Having regard to the extent of the delay, there is no prejudice from doing so to the jurisdictional objection of Theiss Degremont, no loss of corporate memory and no loss of access to relevant personnel which would prevent Theiss Degremont defending the applications.

e) The applicants dispute the genuineness of the redundancy of their positions. This matter has not been tested before me.

f) This statutory provision gives rise to problematic considerations having regard to the complex matrix of facts and procedures followed by Theiss Degremont and the employees’ representatives which has lead to some allegedly redundant employees making applications within the statutory period prescribed by s.394(2)(a) and some beyond that time. I intend to treat the statutory provisions such that the relevant similarity of circumstances requires that the comparison between persons must be confined to persons who have made applications outside the time prescribed by s.394(2)(a). On what is before me, on this basis, all of the applicants share certain similarities of relevant circumstances, concerning the reason for the termination of their employment and the reason for the delay to the filing of the application.

[10] Weighing all of the above considerations, on balance, I have decided to allow sufficient time for the applications to be made in each case at the time they were filed. An order will issue accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR514277>