Mrs Kristina Ward v Reece Australia Pty Ltd

[2020] FWC 7028

[2020] FWC 7028

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mrs Kristina Ward
v
Reece Australia Pty Ltd
(U2020/12866)

DEPUTY PRESIDENT ASBURY BRISBANE, 23 DECEMBER 2020

Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This Decision concerns an application for an unfair dismissal remedy made by Ms Kristina Ward in respect of the termination of her employment by Reece Australia Pty Ltd. The Applicant was employed as an Account Specialist (Residential) and her dismissal from her employment with the Respondent took effect on 9 June 2020. The Respondent contended that the Applicant’s dismissal was a case of genuine redundancy. The Applicant lodged her unfair dismissal application with the Fair Work Commission (Commission) on 25 September 2020.

[2] Section 394(2) of the FW Act provides that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3). It is not in dispute that the Applicant’s dismissal took effect on 9 June 2020. The period of 21 days ended at midnight on 30 June 2020. The application was therefore filed 87 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3) of the FW Act. The Respondent opposed this request.

[3] The central grounds upon which the Applicant sought to establish exceptional circumstances such that she should be granted a further period in which to make her application, are that the Respondent filled her position subsequent to her dismissal so that she became aware at that point that the dismissal was not a case of genuine redundancy, and could not have known this at an earlier point.

[4] On 10 December 2020, I held a hearing in relation to whether a further period should be granted. At the hearing, the Applicant gave evidence on her own behalf. Evidence in support of the Applicant being granted a further period was also given by a former colleague, Ms Allana Lark. Evidence for the Respondent was given by Mr Nick Lambie, Region Leader for Onsite and Bathroom Life Stores. At the conclusion of the hearing I decided to refuse to exercise the discretion to grant a further period in which to make the application on the basis that I was not satisfied that there were exceptional circumstances having regard to the matters in s. 394(3) of the FW Act that section. As a result I was required to dismiss the application and an Order 1 to that effect was issued. My reasons for dismissing the application are as follows.

Extension of time application

[5] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. In short compass, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 2 Exceptional circumstances may 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 can be considered exceptional.3

[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I turn now to consider these matters in the context of the present case.

Genuine redundancy

[9] Before dealing with the matters I am required to consider in deciding whether to exercise the discretion in s. 394(3) of the Act to grant a further period in which to make an unfair dismissal application, it is necessary to briefly deal with the provisions of the FW Act relating to “genuine redundancy”. That term has a statutory meaning and an ordinary meaning. The statutory meaning is found in s. 389 of the FW Act which is in the following terms:

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.

[10] The ordinary meaning is essentially consistent with the definition in s. 389(a) of the Act and such a redundancy is genuine in that it is for reasons which are bona fide and not ulterior reasons such as dismissing a particular employee. The effect of s 389 of the FW Act is that a dismissal that meets all of the limbs of the definition of “genuine redundancy” in s. 389 of the FW Act – and not just the first limb in s. 389(a) – is removed from the unfair dismissal provisions of the FW Act and an employer has a complete defence to an unfair dismissal application.

[11] A termination of employment on the grounds of redundancy usually involves two steps. The first step is a decision that a particular job is redundant on the basis that it is no longer required to be done by anyone, and the second step is that the person who occupies that role is dismissed. The concept that a job is not required to be done by anyone in the context of redundancy, requires some elaboration.

[12] For the purposes of redundancy, a job is a collection of duties and tasks performed by an employee. In determining a job is redundant, it is necessary to draw a distinction between the employee’s job and the employee’s duties or tasks. 4 The fact that the duties or tasks remain to be done, does not mean that the job of an employee who was doing those duties or tasks is not redundant.

[13] Whether a job is redundant is assessed at the time the person performing the job is dismissed. A dismissal may be a redundancy within the meaning in s. 389(1)(a) of the Act and in the ordinary sense, in a number of circumstances including: where the duties or tasks performed by an employee remain and are distributed to other employees (who may or may not have previously performed those duties or tasks) so that overall, fewer employees are required in the workplace; or where the employer’s business is experiencing a downturn and the number of employees doing the same or similar tasks is reduced. 5

[14] Where a dismissal meets the definition of “genuine redundancy” in s. 389 of the Act, the dismissed employee cannot make an unfair dismissal application and accordingly is prevented from contesting the dismissal on bases including that the selection process was unfair, or that the duties should not have been redistributed in a particular manner or to particular employees or that the dismissed employee should have been retained in employment and another employee selected to be dismissed.

[15] However, the fact that a dismissal does not meet the definition in s. 389 of the Act, so that it is not a “genuine redundancy” in the statutory sense, does not mean that the dismissal is not a genuine redundancy in the ordinary sense – that it is a bona fide redundancy in that the employer no longer requires the job to be done by anybody because of changes to its operational requirements. Such a dismissal can be considered against the criteria in s. 387 of the FW Act to determine whether the dismissal was unfair.

[16] In deciding whether a dismissal is unfair in such cases, there will be circumstances where the Commission is satisfied that the dismissal is a genuine redundancy in the ordinary or bona fide sense – that is the job is no longer required because of changes to the employer’s operational requirements – but the process followed by the employer in effecting the redundancy was unfair. There will be also cases where a dismissal is disguised as a genuine redundancy, and where the employee who was dismissed is replaced, in circumstances where the particular job (as distinct from the tasks or duties) was not redundant at the time the employee concerned was dismissed. Such cases generally

[17] Cases where a dismissal is disguised as a redundancy, will generally involve some subterfuge or dishonesty on the part of the employer and circumstances where the facts evidencing lack of genuineness were not discoverable at the point the employee was dismissed. Subterfuge or dishonesty on the part of the employer, if established, may provide a reasonable explanation for delay in making an application for an unfair dismissal remedy and for a subsequent finding of unfairness if the time for making the application is extended.

[18] It is also possible that a job, which was genuinely redundant at a particular point in time, is reintroduced and filled, subsequent to the person who previously held the job being dismissed on the ground of redundancy. This is not a basis for finding that the original redundancy was not bona fide. There is nothing to prevent an employer making a job redundant due to operational changes, and dismissing the person who held the job on the ground of redundancy, and later deciding to reintroduce the job because of further operational changes. This does not mean that the job was not genuinely redundant at the earlier time.

[19] Where an employee who was dismissed on the grounds of redundancy, seeks to agitate a dismissal more than 21 days after the dismissal took effect, and where the facts the employee seeks to rely on to establish the merits of the case were known or could have been reasonably ascertained at the time the dismissal took effect, the fact that the job was filled subsequent to the dismissal, may not be an acceptable explanation for delay. However, where there was dishonesty or subterfuge associated with the dismissal so that it was disguised as a redundancy, exceptional circumstances may be found to exist on the basis that it is out of the ordinary course or unusual for an employer to engage in such conduct.

Consideration of s. 394(3) matters

Reason for the delay

[20] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 6 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.7

[21] The FW Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour. However, all of the circumstances must be considered. 8

[22] In the present case the period of the delay is 87 days. In relation to the reason for the delay, the Applicant contends that she did not become aware that her dismissal was other than a genuine redundancy until 21 September, when she had a discussion with a former colleague (Ms Lark), during which she was informed that her role and the role of another colleague who was made redundant at the same time, had been filled. The colleague also informed the Applicant that a new Business Development Manager for the On-site Commercial Plumbing team had been employed and introduced to her during a walk-through in June 2020. The Applicant submitted that this information confirmed views that she had at the time of her dismissal that there had not been a decline in work and that her job was still required to be done. Other issues raised by the Applicant are that the Respondent had failed to consult her about the redundancy; and reasonable attempts were not made to redeploy her to other positions, including into the Business Development Manager position.

[23] Mr Lambie’s evidence is that prior to the Applicant’s dismissal on the ground of redundancy, there were three persons employed in the role of Accounts Specialist, including the Applicant with the role being largely centred around customer engagement and sales. Given that sales had decreased, it was decided to make two of those jobs redundant and to dismiss the Applicant and another employee. Approximately seven weeks after the Applicant was dismissed, the employee who had been retained in the Account Specialist role unexpectedly resigned her employment. That vacancy was filled by the appointment of an existing employee. Mr Lambie also said that leading up to 1 August 2020, sales in the Onsite Residential business had increased and the COVID-19 situation in Queensland had begun to ease. A decision was made to transfer a Branch Manager who wished to step down from that role, into the role of Accounts Specialist, resulting in two such roles. Mr Lambie also said that the person who had been employed in the Business Development role had commercial experience and that it was a different role to the role that the Applicant had performed.

[24] While the Applicant takes issue with the timing of the movements described by Mr Lambie and the circumstances in which they occurred, I do not accept that the fact that the Applicant was not aware of these matters is an acceptable or reasonable explanation for the delay in making her unfair dismissal application. Firstly, there is no evidence to suggest that the redeployment of other employees into the Account Specialist roles was in contemplation at the time the Applicant was dismissed. Secondly, the Business Development role was in contemplation at or around the time that the Applicant was dismissed and is a substantially different role to that held by the Applicant. Thirdly, the matters relied on by the Applicant in relation to the merits of her application, are matters that she knew or could reasonably have ascertained at the point she was dismissed. There is evidence of the Applicant raising questions about these matters prior to her dismissal. Absent deception or subterfuge around the operational changes, there is nothing exceptional or out of the ordinary about reintroducing and filling positions which were previously redundant. This is particularly so in the rapidly evolving business environment associated with the COVID-19 Pandemic.

[25] I therefore do not accept the explanation for the delay in the Applicant making her unfair dismissal application as reasonable. The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances

Whether the person first became aware of the dismissal after it had taken effect

[26] The Applicant states that she was notified of her dismissal on 2 June 2020 and that it took effect on 9 June 2020. Given that there was no confusion about the date the Applicant’s dismissal took effect, the Applicant had the full period of 21 days from 9 June 2020 to lodge her unfair dismissal application. In all the circumstances, I consider this to be a neutral consideration.

Action taken to dispute the dismissal

[27] The Applicant took issue with a number of matters in relation to her dismissal before it took effect. Other than filing her unfair dismissal application 87 days outside the required time, the Applicant did not take any action to dispute her dismissal. This circumstance weighs against a conclusion that there are exceptional circumstances albeit only slightly.

Prejudice to the employer

[28] The length of the delay is considerable and notwithstanding that the Respondent has not identified any particular prejudice that would accrue to the Respondent if an extension of time were to be granted, I consider that the extent of the delay weighs against a further period being granted. In any event the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

Merits of the application

[29] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the Form F2 Application and Form F3 Employer response and in the materials filed in relation to whether a further period should be granted for the application to be made. Having examined these materials, I am of the view that there are significant disputes in relation to facts between the parties which could only be resolved at hearing.

[30] In relation to merit, I reiterate that it does not follow that because a position which was made redundant, is replaced within a relatively short period of time, that the redundancy was not genuine. In the current economic environment, where the position of business is rapidly changing and evolving, it is to be expected that situations such as those that have arisen in the present case will be common. 9 Section 394(3) of the Act is not a mechanism to allow an application which could have been made within time, to proceed to hearing simply because the situation which existed at the time the employee was dismissed has changed.

[31] The matters in relation to merits raised by the Applicant are all matters that were agitated by her prior to her dismissal and could have been the subject of an unfair dismissal application made within time. The only factual matter that could not have been the subject of such an application is the fact that one of the jobs that was made redundant in June 2020 was reinstated in August 2020, in circumstances which were not within contemplation by either party when the dismissal of the Applicant was effected.

[32] In my view, the case the Applicant seeks to advance is a collateral attack on the basis for her dismissal and the manner in which it was effected, motivated by a change in circumstances beyond the control of either party, which neither the Applicant nor the Respondent anticipated at the time of the dismissal.

[33] I consider the merits of the Applicant’s case to be neutral at best, and I do not accept that the merits of the Applicant’s case are strengthened by virtue of the job which was made redundant in June 2020 being replaced in August 2020 or the fact that there were internal transfers effected after her dismissal on the basis of further changes in the Respondent’s operational requirements.

Fairness as between the person and other persons in a similar position

[34] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I am aware of a similar application brought by a former colleague of the Applicant on a similar basis, which I also dealt with by issuing an ex tempore decision in which I decided to refuse a further period for that application to be made. 10 In this regard it would be unfair to that person to extend time for the Applicant in the present case.

[35] While I consider this to be a consideration weighing against a further period being granted to the Applicant in the present case, I have not accorded it significant weight given that each application for an unfair dismissal remedy should be considered on its own merits.

Conclusion

[36] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect has issued.

DEPUTY PRESIDENT

Appearances:

The Applicant on her own behalf.

Mr N Maguire for the Respondent.

Hearing details:

10 December.

2020:

By telephone.

Printed by authority of the Commonwealth Government Printer

<PR725804>

 1   PR725315

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 3   Ibid

 4   Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488.

 5 Ibid at [19].

 6   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 7   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 8   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 9   See for example Kunwar Lakhan v United Petroleum[2020] FWC 4970.

 10   PR724270