Ms Rochelle Bauze v Moreton Bay Boat Club
[2020] FWC 5436
•12 OCTOBER 2020
| [2020] FWC 5436 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Rochelle Bauze
v
Moreton Bay Boat Club
(U2020/7373)
DEPUTY PRESIDENT ASBURY | BRISBANE, 12 OCTOBER 2020 |
Application for an unfair dismissal remedy.
Background
[1] This Decision concerns an application by Ms Rochelle Bauze (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Moreton Bay Boat Club (the Club). The Applicant’s employment was terminated on 17 August 2018. It is not in dispute that the dismissal took effect on that date. The application was made on 28 May 2020.
[2] By virtue of s. 394(2) of the Act an application under s. 394 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 394(3). The application must have been made by 7 September 2018. The application in the present case was made 630 days, or just short of 1 year and 9 months, outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.
[3] In the Form F2 Application, the Applicant identifies that the application has been made outside the time allowed under s. 394(3) of the Act and explains the delay as follows:
“I recently received new information that validated non genuine redundancy, I contacted Fair Work who put me onto a lawyer, both of which advised me to lodge an application for unfair dismissal. I took the eligibility test and it also came up with eligible to lodge an application.
I was not given a right of reply to the allegations laid against me for the initial suspension of employment (these allegations were later unfounded, and redundancy made)
I was not offered reasonable consultation regarding the redundancy and potential redeployment within the organisation as the new information shows the decision was made on the 8th August 2018 (9 days before I was advised)
At the time I was taking the advice of a union representative that suggested I take the redundancy. A conversation we had during the week leading up to this he informed me that Clubs Qld had advised him “the Club was bordering on insolvency and I should get out with what I can”. I was not in a clear head space to challenge this at the time.
New information received proves that the Board was not informed of the facts surrounding my initial suspension which turned out to be a malicious complaint that was unfounded.
I had previously faced bullying / intimidation myself from the then Commodore once he was elected and prior when he was the Vice Commodore. I had bought this to the attention of the Directors on multiple occasions and nothing was done to resolve this so my faith in the Board diminished. Current Directors (some being members at the time) are aware that this took place.
I have tried to submit my application twice this last fortnight via the online application and both times the system shut down before I came to the payment screen. I called up this morning and the employee suggested I download the word version and apply via email as they had issues with the online lodgment.
I ask that the Commission accept my late application with the new information I have received on the 6th May 2020 as I am within 21 days of receiving this new information.”
[4] On 10 June 2020, the Associate to Vice President Catanzariti sent correspondence to the Applicant advising that the application had been received outside of the 21 day time frame allowed under s. 394(2) of the Act and that the Commission may extend the time period for lodging an unfair dismissal application only if satisfied that there are exceptional circumstances for not lodging the application in time. The correspondence also set out the matters the Commission is required to consider in deciding whether to grant a further period under s.394(3) of the Act.
[5] On 15 June 2020, the Applicant responded to Vice President Catanzariti’s correspondence as follows:
“This email is to confirm that I wish to proceed with this application.
I believe the emails received by me on the 6th May 2020 warrant exceptional circumstances be granted as they prove that my employment was to be terminated regardless.
They clearly show that this decision was made between Clubs QLD and the Commodore, Paul Corn prior to me having a meeting to discuss the redundancy and show that any type of suggestion I made for redeployment within the organisation would have been ignored as the email was dated well before I was advised of the meeting date.
They also show that the decision was the option of the then Commodore and other Board members where not aware of all the facts at the time.
These new emails I received give special circumstances to my case
Thankyou in advance for assessing my application” (errors in original)
[6] The matter was allocated to me for hearing. Following a conference in relation to the matter, Directions were issued giving the Applicant an opportunity to file any additional material in support of a further period being granted. The Respondent was given an opportunity to file material in relation to whether the further period should be granted, if it wished to do so. A hearing was held at which the Applicant represented herself, and the Respondent was represented by Clubs Queensland.
Evidence and submissions
[7] The Applicant filed a statement in support of her application for an extension of time. In summary, the Applicant’s evidence is that she commenced employment with the Club in 2013. At the time of her termination, The Applicant was the Club Manager on a salary of approximately $85,000. At the time that the Applicant was promoted to Club Manager, the Club was not in a healthy financial position. During her tenure, the Applicant asserts, the Club had started to earn a profit. The financial position of the Club will be further addressed below.
[8] In late 2017, the landlord of the Club’s premises, the Department of Transport and Main Roads, identified that there was a significant undervaluation of the rent payable for the premises. By negotiation, a purported underpayment was resolved although an increase in rent was inevitable. In early 2018, and as a result of this increased expenditure, the Applicant and the Club’s Treasurer implemented a plan to reduce overheads and increase revenue. Part of this plan included an evaluation of staffing levels and the optimisation of rosters.
[9] As a part of the optimisation of rosters, a dispute arose between the Club and another employee. The Applicant was attempting to change the employee’s roster to facilitate a reallocation of duties and the employee concerned resisted the change. In managing this process, the Club, through the Applicant, consulted with Clubs Queensland. On 30 July 2018, the Applicant was suspended from duties and various allegations were made in relation to her conduct, set out in a letter of that date, as follows:
“I am writing to follow up on our discussions on 30 July 2018 in relation to allegations that you:
Engage in workplace bullying and harassment by creating a toxic work environment, intimidate staff and speak in a derogatory manner about the Club’s Board of Directions;
Withhold critical financial information from the Club’s Board of Directors and have failed to provide relevant documentation to the Club’s Board of Directors when asked; and
Failed to comply with your contractual requirements as stated in your contract dated 25/2/2014.”
[10] Ultimately, these allegations were not pursued by the Club, and the Applicant was advised of this by letter dated 10 August 2018. That letter also informed the Applicant that a review of the operations and the financial viability of the Club would be undertaken. The letter also informed the Applicant that the Club was proposing a changed management model which may impact her employment and that her role as Club Manager may no longer be required. A meeting was proposed on Monday 13 August to receive feedback from the Applicant about the proposed restructure, the potential effects on her employment and measures the Club could take to avert or mitigate those effects.
[11] That meeting was conducted on 17 August 2018, and involved a representative of the Club and Clubs Queensland. At that meeting, the Applicant was informed that the Club proposed a restructure that would result in the position of Club Manager being redundant. The Applicant was asked whether there were suitable roles for redeployment should the restructure be implemented. In response, the Applicant said that any position would be suitable. The meeting broke for approximately 10 minutes, after which time the Club advised the Applicant that it had decided to implement the restructure and that her position was therefore redundant. A letter to this effect was given to the Applicant.
[12] The Applicant states that she suspected at the time her employment was terminated, that the allegations were a ruse to remove her from discussions concerning recommendations made by Clubs Queensland concerning the future of the Club. The Applicant further states that she could not verify this suspicion at the time because she did not have access to Club systems or files.
[13] On 6 May 2020, the Applicant received an email from a member of the Club. The email is dated 20 February 2020 and states:
“To All Full Members of [the Club]
Thank you for your support over a difficult ten months as the Board, Staff and Members worked, volunteered and patronised your Club.
It is with great pleasure that we can now announce the appointment of a Club Manager. The Board considered an outside appointment but realised any such appointee would take time to get across what is actually a complex business covering a number of different areas all now strewn with regulations…”
[14] Also on 6 May 2020, a document titled “Operational Review Moreton Bay Boat Club July 30 2018” (the Review) was “anonymously” placed into the Applicant’s letter box. The Review considered the financial position of the Club and provided strategic recommendations to the Board. Amongst those recommendations was a reduction in the percentage of wages from 34% to 28%. An option to achieve this was the replacement of a General Manager with a Bar Manager. That Review included a summary as follows:
“The club is at a cross roads. i.e. with declining profitability, qualified audits and potential insolvency, therefore the Board and management are confronted with some big challenges that require urgent attention.
Looking in from the outside, there seems to be a lack of urgency surrounding the club’s predicament. Respectfully, it seems to be ‘business as usual’ with limited recognition of the writing on the wall + there doesn’t appear to be any initiatives actioned to arrest the decline in profitability.”
[15] Under the heading “Operational Issues”, the Review included:
“• Control expenses
• As a percentage of revenue, expenses are unsustainably high
• Marina operations reduce the profitability of the club, undertake a review
• Wages are well above industry benchmarks – urgent attention is required”
[16] Under the heading “Recommendations” was an entire section dedicated to “Wages”. Relevantly it was recommended to “Employ Bar Manager as opposed to General Manager. The recommendations continued:
“The most immediate concern is the high wage percentage. As an indication, if the club were to adhere to the industry benchmark of 28% down from the current percentage of 34%, on the current income, the club have to shed of $200,000 in wages. This may be a simplistic exercise, however wages running at 34% of income is unsustainable.
…
There is also the option for the club to simply employ a bar manager, with the Committee taking more of a hands on role to assist in keeping wages at a minimum. This may be a strategy in the short term, however from a strategic position, the club needs to be looking for professional leadership.”
[17] Under the heading “Club Restructure” it was recommended that the Club adopt a more “Corporate – Entrepreneurial” structure. It was suggested that such a structure could rely upon the position of Business Manager, rather than the position of Club Manager, to rebuild the Club’s profitability. The Review also included consideration of the Club’s balance sheet, income and expenditure (amongst others). A concern was raised about the solvency of the Club.
[18] Also through a former member of the Club, the Applicant received a copy of an email dated 9 August 2018 between Clubs Queensland and the Club. That email stated:
“Further to our discussion yesterday, please find attached the letter to send to [the Applicant].
As the Management Committee are no longer pursuing the allegations following the investigation, arguable there is no reason as to why [the Applicant] is being stood down.
Given [the Applicant’s] likely attitude if she was to return to work (albeit for what may be short period), I suggest maintaining the status quo and moving quickly.
As such, I propose giving the letter to Rochelle on Friday afternoon for the meeting on Monday morning. I would prefer not to mention anything regarding the stand down in the letter. If [the Applicant] asks if she can return to work, I suggest replying that the Club does not require her at this point and that she should spend the time considering her position.
Having her stood down during this period is likely going to muddy the waters as it would seem you don’t trust her and that’s the reason for the redundancy. However, given the damage she could do if she was to return, I would suggesting taking this risk.
If the meeting is done on Monday, we can make the decision and inform her on Tuesday that the position is redundant and that her employment is terminated. At this point I would be demanding a return of the Facebook details leading up to Father’s Day.”
[19] The Applicant asserts that this email is evidence that the decision to make the position redundant was pre-determined and that consultation was not genuine. The same former club member provided the Applicant with a number of documents, and also provided her with minutes from various board meetings. The Applicant submits that those minutes disclose that board discussions included various allegations concerning the Applicant’s behaviour, conduct and competence. It is also suggested that the minutes disclose that the board considered a redundancy would be a cleaner option to remove the Applicant from her position.
[20] In this regard, the minutes of a board meeting on 6 August 2018 indicate that the board discussed issues with the Applicant’s conduct and work performance and also that the board discussed the fact that the Club’s Queensland Review had questioned the need for a Manager in a club this size and that there was a “redundancy option”. The minutes of the board meeting on 6 August 2018 also indicate that the board discussed issues including: “Affordability of the Manager position; Redundancy compared to dismissal; the redundancy option without the reasons for standing down would leave [the Applicant] with a clear slate.”
[21] The minutes of the board meeting on 16 August record that the Applicant did not attend a meeting scheduled for that morning and that notwithstanding that the meeting with the Applicant had not occurred, the board resolved that she be removed as a signatory on all accounts. The Applicant also tendered a notice to members of the Club dated 20 August 2018, informing them that her position had been made redundant and that one of two Duty Managers had agreed to take on the role of Senior Duty Manager, with one of the Directors with experience in staff relations, providing interface between the Senior Duty Manager and staff.
[22] The Club relied upon a statement of Mr Graham Sergeant, Vice Commodore of the Management Committee of the Club. Mr Sergeant has been the Vice Commodore since May 2019 and otherwise a member of the Management Committee since May 2013. Mr Sergeant is aware that during 2018 the Club experienced trading difficulties and was having trouble paying its creditors. This coincided with the rent issue referred to above. The Club engaged an external party to undertake a review of the club, the result of which was the Review.
[23] Various meetings of the Management Committee were held, and Mr Sergeant accepted that the minutes tendered by the Applicant were the minutes of those meetings. As those minutes record, the Management Committee resolved to conduct a restructure that: “may entail the position of the Club Manager being made redundant”. The 9 August 2018 email that was emailed to the Applicant followed this resolution.
[24] Mr Sergeant recalls that the advice from Clubs Queensland emphasised the importance of not making a firm decision about the redundancy of the position prior to consultation occurring. A consultation meeting occurred on 14 August 2018 at which the Applicant did not provide feedback concerning the restructure. Mr Sergeant did not attend the meeting and based his evidence on the documents available to him including the notes of Clubs Queensland taken during the meeting.
[25] After this meeting, the Management Committee met to discuss and resolve the issue of the restructure. It was resolved that the position of Club Manager would be made redundant and that redeployment was not an option. This was communicated to the Applicant in a further meeting on 17 August 2018. The Applicant was paid a total of $46,272.09 in redundancy and other entitlements.
[26] Mr Sergeant states that he is aware that the Applicant commenced employment with another hospitality group sometime in November 2018. Mr Sergeant states that the basis of his information is the Applicant’s LinkedIn profile.
[27] While Mr Sergeant cannot now specifically recall exact details, Mr Sergeant does recall that immediately following the redundancy, the duties of Club Manager were distributed amongst the members of the Management Committee. Mr Sergeant also said that from March 2019 the following duties were taken over by management committee members:
• Commodore: General management, marketing, sales, day to day decisions;
• Vice Commodore: Financial reports and daily supervision of finances;
• Rear Commodore: Responsibility for building and grounds maintenance and supervision;
• Director Operations: Staff meetings with Senior Team Leader and Accounting and Marina Manager, interviews applicants for senior staff positions;
• Treasurer: Assists with financial matters;
• IT Director: Handles IT matters, attends board meetings and completes board meeting minutes;
• Secretary: Assists with day to day management;
• Director: Negotiates with Breweries and other areas.
[28] These duties are still performed by the management committee members. In February 2019, the Club sustained an audited loss of $138,977 over the previous year. Mr Sergeant estimates that this loss would have been approximately $200,000 if the Club had not made the Applicant’s position redundant. In February 2020 the Club had an audited profit of $86,133 for that financial year. On 19 February 2020, the Club promoted Ms Liz Kahler to the position of Club Manager. Mr Sergeant states that despite her title, Ms Kahler does not undertake the same duties as the Applicant did when she was Club Manager. While the Applicant worked mostly behind the scenes, Ms Kahler undertakes a lot of day to day operational duties at the Club such as financial accounting, staffing and day to day management.
[29] Under cross-examination, Mr Sergeant maintained that the Applicant’s role had been that of a senior venue manager involved in directing operations, while the new Club Manager role is more “hands on”. Mr Sergeant also said that the Club had always employed 2 – 3 Duty Managers and that the wages for these positions were substantially less than those paid to the Applicant.
Consideration
The approach to deciding whether a further period should be granted
[30] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:
“(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.”
[31] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:
• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.1
[32] 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.2
[33] The assessment of whether “exceptional circumstances” exist requires a consideration of all of the relevant circumstances. As a Full Bench of the Commission observed in Stogiannidis v Victorian Frozen Foods Distributors t/as Richmond Oysters (considering similar provisions in s. 366(2) of the Act):
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.”3
[34] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application and does not include the period from the date of the dismissal to the end of the 21 day period.4 However, the circumstances from the time of the dismissal must also be considered and ultimately a decision made as to whether those circumstances are exceptional circumstances.5
[35] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.6 The circumstances from the time of the dismissal must also be considered and ultimately whether the reason for the delay or part of it constitutes exceptional circumstances.7 I turn now to consider each of the matters in s.394(3) of the Act.
Reasons for the delay – s.394(3)(a)
[36] Essentially the reason for the delay in the Applicant making her application, is that the Applicant asserts that she was provided with information on 6 May 2020, that confirmed a suspicion she held when her employment was terminated on 17 August 2018, that her redundancy had been orchestrated to remove her from her role. In this regard, the Applicant refers to the appointment of Ms Kahler as Club Manager, and the email from a representative of Clubs Queensland in relation to the termination of her employment. The Applicant also relies on minutes of meetings of the Club’s board where the termination of her employment was discussed as evidence that her redundancy was not genuine.
[37] I accept that there will be cases where an employee is informed that his or her position is redundant, and information emerges at a later date which indicates that the redundancy is not genuine in the sense that the redundancy is a ruse to dismiss the employee. For example, within a relatively short period, a new employee is employed in the same or substantially the same role as was held by the employee who was made redundant. I also accept that such circumstances may be considered exceptional where the conduct of the employer is deceptive and has been engaged in with the intent of disguising a dismissal as a redundancy and where that conduct could not have been identified at the time of the dismissal.
[38] I do not accept that the present case is a case of this kind. Firstly, there is a significant lapse of time between the termination of the Applicant’s employment on 17 August 2018 and the promotion of an existing employee to the position of Club Manager on 20 February 2020. Secondly, I accept the evidence of Mr Sergeant that at the time the Applicant’s position was made redundant, the Club had sustained a significant loss in February 2018 and that when the new Club Manager position was established in February 2020, the Club had returned to profit. Thirdly, Mr Sergeant’s evidence that the new Club Manager position is different to the position held by the Applicant was not challenged. In light of these matters, it is more probable than not that the decision to make the Applicant’s position redundant was based on the financial position of the Club rather than a ruse to dismiss the Applicant.
[39] I also do not accept that the correspondence from Clubs Queensland and the board minutes tendered by the Applicant establish that her dismissal was a ruse and that her redundancy was not genuine. When all of the evidence is considered, I am satisfied that the Review carried out by Clubs Queensland overtook the disciplinary process that had been commenced with respect to the Applicant and that the management committee determined to implement the restructuring rather than persist with the disciplinary process. The fact that the Club viewed this as the easy way out, does not result in the Applicant’s redundancy being other than genuine.
[40] Finally, I consider that all of the evidence that the Applicant now relies on, was reasonably available to her at the point she was dismissed. The Club employed Duty Managers at the time, and if the Applicant believed that she should have been deployed into one of those positions, she could have raised this matter during the consultation discussion. The Applicant did not do so. On her own evidence, the Applicant suspected at the time of her dismissal that her redundancy was not genuine. The meetings of the board the Applicant refers to occurred before she was dismissed and the Applicant knew that immediately prior to her dismissal, a disciplinary process had been initiated against her.
[41] If the Applicant had suspicions about the genuineness of her redundancy, then she had the ability to challenge her dismissal at the time it was effected and with reasonable diligence could have obtained the information that she now seeks to rely on. The Applicant was represented by a Union at the time of her dismissal and it is her evidence that she was advised to accept the redundancy on the basis that the Club was in financial difficulty. The Applicant took that advice and now seeks to revisit the situation after a significant period of time has elapsed in circumstances where the only new event is that some 18 months after the Applicant’s dismissal, the Club has employed a new manager, albeit the role is not the same role as was previously filled by the Applicant.
[42] I accept that the Applicant was not satisfied with the decision of the Management Committee to make her position redundant at the time it occurred and that she continues to hold a suspicion that her redundancy was not genuine. However, as Full Bench of the Commission observed in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank the “demands of justice [and] general welfare of society”8 require certainty. The time for the Applicant to make an unfair dismissal application to test her suspicions, was 630 days ago.
[43] The “new” information does not weigh in favour of a significant indulgence being granted to the Applicant. The information she seeks to rely on is not new and existed prior to her dismissal. That information was discoverable through the ordinary processes of the Commission. This is not a case where, on the basis of new information which was not discoverable at the time of the dismissal, what was on the face of it a genuine redundancy is now in doubt. In this regard, I agree with the Decision of Commissioner Spencer in The Applicant v The Respondent9 in which it was found that the applicant could have discovered information he sought to rely on as a basis to extend time, at the time of his dismissal.10
[44] For these reasons, I do not accept that the Applicant has provided a reasonable explanation for the delay in making her application and this weighs against the grant of a further period.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
[45] It is not in dispute that the Applicant was aware that the termination of her employment took effect on 17 August 2018. This consideration is not relevant in the present case and is a neutral consideration.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
[46] There is no evidence that the Applicant has taken steps to dispute the dismissal other than filing an unfair dismissal application 630 days after the dismissal. Although there is some mention in the Respondent’s material of a statement purportedly made by the Applicant at the time that she “would be suing the Club” the Applicant denies that she made such a statement.
[47] In the context of such an extensive delay, I consider that this factor weighs against an extension of time being granted.
Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)
[48] The Club submits that the passing of time would subject it to “extreme prejudice” in trying to defend the claim. In this respect the Club relies upon the reconfiguration of the Management Committee since the time of the Applicant’s dismissal and the passage time.
[49] Whilst the delay is extreme, it does not follow that the prejudice can be described in the same terms. I do accept that there would be some prejudice above the ordinary prejudice an employer might experience in defending an unfair dismissal application. This weighs against an extension of time being granted.
The merits of the application – s.394(3)(e)
[50] In the matter of Kornicki v Telstra-Network Technology Group11 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission 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.”12
[51] After considering the material filed by the parties it is clear that there are factual disputes between the parties. I do not consider that the application is totally without merit, although it is not possible to say that it has strong prospects of success.
[52] It is probable that if further time were granted, the Applicant’s application would be met with a jurisdictional objection on the basis that the dismissal was a case of genuine redundancy. In determining whether a dismissal was a case of genuine redundancy the Commission is only entitled to consider three things; whether the employer no longer required the job; complied with a relevant consultation obligation, and whether redeployment would have been reasonable in the circumstances that existed at the time. In determining these issues, the Commission is not assessing the fairness or otherwise of the purported genuine redundancy. Considerations of procedural fairness are, to that extent, not relevant.
[53] Although I note that there may be some dispute about the financial performance of the Club, the Applicant’s own evidence is that action was being taken to manage the Club’s financial position and that this included reducing overheads and evaluating staffing levels. In addition, the objective documentary evidence may be consistent with the proposition that the Club was struggling financially (to the point of potential insolvency) and that urgent action had to be taken. It is also clear that the Club did take the step of making the Club Manager position redundant in August 2018 and did not re-establish that position until February 2020. For reasons I have already stated, it is doubtful that there were ulterior motives for this and it is doubtful that the members of the board would have taken on the additional work described by Mr Sergeant for any reason other than the Club was in significant financial difficulty and could not afford to pay the Manager’s salary.
[54] The process of consultation has been the subject of criticism by the Applicant. The Respondent’s evidence is to the contrary. The genuineness of consultation is not a matter that can properly be assessed at this preliminary stage. However, it is not immediately apparent that consultation would have changed the outcome. It is also not apparent that there were positions into which the Applicant could have been reasonably redeployed. Firstly, there were no equivalent positions and the purpose of making the Applicant’s position redundant was to save her salary. While there were Duty Manager positions, these were filled and there is no requirement that an employer spill lower level positions to accommodate redeployment, in order for a redundancy to be considered to be genuine. The Applicant does not presently point to a job, available at the time, into which she says it would have been reasonable to redeploy her.
[55] In all of the circumstances, of the present case, merit weighs against a further period being granted, albeit not significantly.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[56] It is not clear whether this criteria requires consideration by the Commission of the position of other persons dismissed by the same employer or whether it also contemplates that the Commission consider the position of other persons generally who have sought further periods in which to make applications on similar grounds. The first approach may be relevant in cases where a number of employees are dismissed at the same time or by the same employer and some of those employees are granted a further period and some are not. The latter approach may require comparison of the circumstances of a particular applicant whose case is being considered by a member of the Commission to be compared with those of applicants in other cases considered by other members of the Commission where a further period is sought on the same or similar grounds.
[57] There are no other employees of the Respondent in the Applicant’s position. Applying the latter approach, the cases where a further period is granted in circumstances where there is a 19 month delay are rare. Accordingly, this matter weighs against the grant of a further period, albeit slightly.
Conclusion
[58] After weighing the matters in s. 394(3) of the Act, I am not satisfied that there are exceptional circumstances justifying the Applicant being granted a further period in which to make her unfair dismissal application. The application for a further period is refused and the Applicant’s unfair dismissal application must therefore be dismissed. An Order to that effect has been issued.
DEPUTY PRESIDENT
Appearances:
The Applicant on her own behalf.
Ms N Milevskiy of Clubs Queensland for the Respondent.
Hearing details:
15 July.
2020.
By telephone.
Printed by authority of the Commonwealth Government Printer
<PR723491>
1 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
2 Nulty v Blue Star Group [2011] FWAFB 975.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] – [39].
4 Stoginniadis op. cit. at [22].
5 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
6 Ibid at [15].
7 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
8 Ibid at [7].
9 [2013] FWC 2637.
10 Ibid at [37] – [39].
11 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
12 Ibid.
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