Neil Clow v Essential Safety Solutions (Aust) Pty Ltd

[2021] FWC 1527

[2021] FWC 1527

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neil Clow
v
Essential Safety Solutions (Aust) Pty Ltd
(U2021/1553)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 22 MARCH 2021

Application for unfair dismissal remedy – Jurisdiction – Extension of Time – Application dismissed.

[1] Mr Neil Clow commenced employment with Essential Safety Solutions (Aust) Pty Ltd, on or around 3 September 2018. He was employed in the position of a Fire Technician.

[2] The reason given by the Respondent for the decision to terminate the Applicant’s employment was by way of redundancy.

[3] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 24 February 2021.

Application was filed outside the statutory timeframe

[4] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

[5] The Applicant’s employment was terminated, according to the Respondent, with effect from 5 August 2020. The Applicant contends that the position was made redundant on 6 August 2020. The email from the respondent concerning arrangements for pay was on 6 August 2020, and did not amount to a termination. It therefore seems likely that the termination took effect on 5 August 2020. In the alternative it was 6 August.

[6] Based on a termination date taking effect on 5 August 2020, the application for a remedy should have been lodged by no later than 26 August 2020.

[7] The application was therefore lodged outside of the time prescribed. The application was made in effect, 183, or 182 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[8] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[9] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay,

•  whether the Applicant first became aware of the dismissal after the date it took effect,

•  any action taken by the Applicant to dispute the dismissal,

•  prejudice to the Respondent including prejudice caused by the delay,

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[10] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 1

[11] Briefly, 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 or unprecedented, nor do they need to be very rare. 2 I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

[12] I now consider these matters in the context of the Application.

(a) Reason for the delay

[13] The 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. 3

[14] The Applicant states that the reasons for the delay were as a result of him being given reason to believe that his redundancy was not genuine after subsequently discovering that his former position as a fire technician was re-advertised on Seek.com.au and confirmation of same following a telephone discussion with Ms Amy Grinstead, of the Respondent on 9 February 2021. The advertisement was listed on 4 December 2020 and 3 February 2021. However this is no explanation for filing the application on 21 February 2021. The 4 December advertisement was removed shortly after the applicant queried it. The respondent says it simply expired and was never removed and expired on 3 January 2021. The 3 February advertisement was removed on 19 February 2021, after an offer was made to a successful candidate on 15 February 2021. According to the applicant the advertisement was removed after the applicant queried it. There is little basis for this claim except that it was removed, and this may be consistent with the expiry of the advertisement on 3 January 2021. Similarly, the removal of the 4 February 2021 advertisement might be justified if an offer was made to a successful candidate on 15 February 2021.

[15] The applicant advises that he sought legal advice, and this accounts for the delay between 9 February 2021 and 21 February 2021. The applicant also attempted to discuss the redundancy with the respondent in good faith, but the applicant was mindful that an application would be made if necessary.

[16] The respondent states that another employee was made redundant on 7 September 2020, and another on 13 January 2021. The first is agreed, and the second the applicant has no submission as the applicant was not employed. However, the respondent states that the 4 December 2020 advertisement was made after a new contract was expected to be gained. The second advertisement was lodged after another employee, Garry Moss resigned on 27 January 2021, meaning that there was a new vacancy. 4 This is confirmed by the attachment to the materials of the resignation letter from Mr Moss. The respondent says that explanations about this were given to the applicant over the phone, although the applicant denies this. However, the employer claim that this was explained to the applicant is consistent with the resignation received, it is a natural thing to do in the circumstances. Even if the applicant did not receive such an explanation, there is no basis for revising the statutory timeline because of a suspicion, apparently unfounded because of the resignation, that this means that the redundancy was not genuine. Further, the applicant waited a further period before filing his application, as the application was filed on 21 February 2021. Even if there was an explanation for the delay up to that point, the applicant still delayed filing after finding out about the job advertisement, and there is no explanation for that. The delay caused by seeking legal advice and attempting to negotiate with the employer has to be read in context. The claim was already late, and the applicant should have been aware of this, having had legal advice. It was a matter of urgency that the claim be filed immediately on receiving legal advice, and it was not. There was a further delay, which is difficult to justify.

[17] It is not uncommon for an employee to suspect that their redundancy is not genuine. Many genuine redundancy cases arise from these sorts of suspicions which can occur after a redundancy has been affected. There is nothing unusual or special about this. It is quite simply a reasonable reaction that many employees who have been made redundant may experience on learning new information about their previous job. Further, there is nothing special or unusual about taking legal advice or endeavouring to engage in a consultation process as an explanation for a further delay.

[18] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

(b) Whether Applicant first became aware of the dismissal after the date it took effect

[19] Turning then to the question of whether the applicant first became aware of the dismissal after it took effect, it is agreed that the applicant was first aware of redundancy on 5 August 2020 during the meeting.

(c) Action taken by the Applicant to dispute his dismissal

[20] According to the applicant, he had no opportunity to dispute the redundancy on 5 August 2020 because of the shortness of the meeting. This is disputed by the respondent. However, the applicant did dispute the dismissal and contacted the respondent a number of times when he saw the advertisements. The applicant also attempted to contact the respondent through his legal representative from 17 February 2021 to 24 February 2021.

[21] I am satisfied that the applicant did dispute the dismissal on several occasions. This is a factor in favour of the applicant.

(d) Prejudice

[22] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The employer says there is no prejudice caused by the delay. This is a factor in favour of the applicant.

(e) Merits of the application

[23] In genuine redundancy cases of this kind there is considerable evidentiary material to be examined in determining the genuineness of the redundancy. The parties have raised a number of issues which would require a full hearing. In cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

[24] The applicant may have an arguable case, but he also may not. I have already made some observations about the explanations made by the respondent. I find this to be a neutral factor in this case.

(f) Fairness as between the Applicant and other persons in a similar position

[25] According to the respondent, two other employees were made redundant using the same redundancy matrix and there was therefore fairness between the applicant and other employees. However, the applicant does not accept this and submits that the other employees may, or may not be, in the same circumstances.

[26] I find this to be a neutral factor in this case.

Other considerations

[27] As the applicant quite properly said, he did not have any evidence of the redundancy not being genuine until he saw the advertisements in December 2020 and February 2021. According to the applicant, he afforded an opportunity to the respondent to explain these and became suspicious when he was told that the job was to be remunerated at a lower rate than what he previously received. It was not explained to the applicant that an employee had resigned, and he was not provided any information about the redundancy other than that there was no more work. The applicant genuinely believed that he was unfairly dismissed. Much of this is not consistent with what the respondent says. According to the respondent, two other employees were made redundant, some of these explanations were provided, and in the case of Mr Gary Moss there is documentary evidence that he did resign which appears to account for the February 2021 advertisement. In any event for the reasons given I am not satisfied that there are exceptional circumstances warranting an extension of time in this matter.

Conclusion

[28] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[29] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period. There is nothing unusual about an employee deciding or suspecting that a redundancy may not be genuine, because of some later information that he gains, a suspicion which may well be a false one in this case. For example, in this case there appears to be a genuine resignation by Gary Moss, which required his position to be advertised, and two employees had previously been made redundant. It is not clear that there is a real basis for the claim that the redundancy was not genuine. There is nothing unusual about an employee later seeking legal advice and attempting to negotiate with the employer. This case has little or nothing which is unusual or exceptional in its circumstances.

[30] In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect is contained in PR727958.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727957>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 4   Digital Court Book, 38.