Neil Roberts v AJ Baker and Sons Pty Ltd

[2019] FWC 3921

[2019] FWC 3921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Neil Roberts
v
AJ Baker and Sons Pty Ltd
(U2019/1819)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 14 JUNE 2019

Application for an unfair dismissal remedy - extension of time – alleged non-genuine redundancy – post-dismissal advertised vacancy - application lodged on multiple grounds – no exceptional circumstances - application dismissed

[1] Mr Neil Roberts (the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by AJ Baker & Sons Pty Ltd (AJ Baker, the Respondent or the employer). He claims to have been dismissed by alleged redundancy on 23 January 2019 which (it was claimed) took effect on 7 February 2019 when two weeks payment in lieu of notice expired.

[2] His application was filed with the Commission on 20 February 2019.

[3] A number of jurisdictional issues arose on the application. AJ Baker said that the application was not filed within 21 days of the dismissal taking effect as required by section 394(2) of the FW Act and that it opposed an extension of time for lodgement. It disagreed that the dismissal took effect on 7 February 2019. The employer also said that the dismissal was not unfair because the dismissal was a case of genuine redundancy (section 385(d) and section 389 of the FW Act).

[4] At a directions hearing on 6 May 2019 I raised with the parties whether Mr Roberts was a person protected from unfair dismissal under section 382(b) of the FW Act in light of the remuneration information provided by the employer in its form F3 response.

[5] On 7 May 2019 I directed that a hearing be held on 28 May 2019 to deal with the extension of time issue and the high income threshold issue. I did not list the matter for hearing on the genuine redundancy issue, the merits or remedy.

[6] In advance of the hearing I received written submissions (including on representation), witness statements and documents on which parties sought to rely.

[7] I conducted a jurisdictional hearing by telephone on 28 May 2019.

[8] At the hearing I granted, by consent, both Mr Roberts and AJ Baker permission to be legally represented in proceedings on the application under section 596 of the FW Act in light of the complexities raised and in the interests of efficiency.

[9] I heard evidence from five witnesses at the jurisdictional hearing: Mr Roberts in his own right and, for AJ Baker, Mr Brendan Krummel (a company director), Mr John McBurnie (South Australian State Manager), Ms Margaret Princep (Compliance Officer) and Mr Shane Hood (National Service Manager).

[10] I reserved my decision on the jurisdictional issues which I now deliver.

[11] On 6 June 2019 I invited the parties to make a further written submission on an issue not directly addressed in their written or oral submissions, being whether the grounds on which Mr Roberts advanced his claim weigh in favour or weigh against a finding of exceptional circumstances in considering whether an extension of time should be granted.

[12] I received further written submissions on this issue from both Mr Roberts and AJ Baker on 11 June and submissions in reply on 12 June 2019. I have taken those further submissions into account.

Consideration

High income threshold

[13] This was an agreed matter.

[14] In its written submissions and at the hearing the employer submitted that Mr Roberts’s annual rate of earnings did not exceed the high income threshold due to its re-assessment of the personal use component of his vehicle allowance, fuel card, mobile phone and laptop.

[15] Mr Roberts agreed that his average rate of earnings did not exceed the high income threshold.

[16] Mr Roberts was not employed under a modern award or an enterprise agreement. I find that his annual rate of salary combined with the upper end value of the personal use components of his remuneration ($137,623.50 1) did not exceed the high income threshold ($145,400). Mr Roberts served the minimum employment period (six months) required by the FW Act.

[17] I conclude that Mr Roberts was a person protected from unfair dismissal under section 382 of the FW Act.

The date dismissal took effect

[18] Prior to hearing, there was a dispute about the date Mr Roberts’s dismissal took effect. Mr Roberts said that it took effect on 7 February 2019 when the two weeks in lieu of notice he was paid came to an end (and that an extension of time was therefore not required). AJ Baker said that his dismissal took effect on 23 January 2019 when Mr Roberts was told of the redundancy and worked his last day for the company.

[19] At the hearing, the representative for Mr Roberts did not press the submission that the dismissal took effect on 7 February 2019. It became an agreed matter that the dismissal took effect on 23 January 2019. On the evidence before me, and according to law 2, I so find.

[20] Given that the dismissal took effect on 23 January 2019, the application made by Mr Roberts is seven days out of time. An extension of time is required for the application to proceed.

[21] Mr Roberts seeks an extension of time. AJ Baker opposes the application and the application for an extension of time.

Extension of time

The facts

[22] In order to consider whether an extension of time should be granted it is appropriate to set out relevant facts.

[23] In written submissions and in oral evidence I heard a significant volume of evidence about Mr Roberts’s employment, his sales performance and sales data in his areas of responsibility, as well as evidence of discussions leading up to his redundancy and events upon and since the redundancy.

[24] In this decision I am not dealing with whether the redundancy was genuine or whether the dismissal was unfair, or matters of remedy. Much of the evidence I received was directed to those issues. I do not make findings on those matters or the disputed evidence except where necessary to deal with the extension of time issue.

[25] AJ Baker is a Perth-based company operating nationally in the sale of commercial grade refrigeration, air conditioning and ventilation systems.

[26] At the date of dismissal Mr Roberts had worked for AJ Baker for approximately 18 months.

[27] He was head-hunted by the employer and originally employed by AJ Baker as the Service Business Development Manager in South Australia. In about September 2018 he became employed as the South Australian Sales Executive (there is a dispute as to whether this was a voluntary or involuntary change in duties and title).

[28] Mr Roberts was dismissed on the ground of redundancy as the South Australian Sales Executive by letter signed by Mr Krummel and dated 23 January 2019. The redundancy took effect that day.

[29] The dismissal on 23 January 2019 followed discussions on 22 January 2019 and on 23 January. There is disputed evidence on those discussions. AJ Baker says that, after the employer foreshadowed redundancies, Mr Roberts made it known that he was willing to accept a redundancy and proposed that it take effect from March 2019. Mr Roberts denies that he volunteered for redundancy. The employer says that on the day of dismissal Mr Roberts “appeared irritated” 3 that the employer had accepted his voluntary redundancy offer but had not agreed that he remain until the end of March.

[30] The dismissal letter provides as follows: 4

“Dear Neil

Redundancy

As discussed with you, your position with AJ Baker & Sons is being made redundant effective today due to a general down turn in Sales in the SA Branch. This means we cannot justify having such a large sales department.

Unfortunately we do not have any alternate vacant positions to suit your skillset, and cannot offer you ongoing employment; however we will offer you some assistance in dealing with the effects of your retrenchment.

The decision to end your employment was made with much regret.

Your final payment will be made up of:

•  Your outstanding wages,

•  Your accrued annual leave entitlements,

•  2 weeks’ pay in lieu of notice, and

•  Redundancy pay (4 weeks based on 1 completed year of service)

These will be made to your bank account once you return all company property to us. This includes, but is not limited to; laptop, mobile phone, fuel card, keys, passwords, codes and any uniform items carrying the AJ Baker logo.

I thank you for your dedicated service with AJ Baker & Sons and wish you success in your future endeavours.

Yours faithfully

Brendan Krummel

Company Director”

[31] After being handed the dismissal letter and briefly finalising matters, Mr Roberts left the workplace as required by the employer.

[32] Mr Roberts was also handed a final payslip 5. The payslip set out his payments on termination. The payslip has a computer designation in the bottom left hand corner “21/01/2019 6.11:25PM”.

[33] On 23 February at 11.12am Mr Roberts sent an email (from his work account) to his staff and customers indicating that his position “had been made redundant effective immediately”. 6 Later that day Mr Roberts emailed the employer concerning the return of company property and the transfer of his business phone to a personal account. He subsequently returned the company property.

[34] Mr Roberts focused on personal matters (including his health) in the days and weeks following his dismissal (until 19 February).

[35] Not until 19 February (that is, 27 days after dismissal) did Mr Roberts raise matters relating to the appropriateness or genuineness of his redundancy with the employer or officers of the employer.

[36] However, one week after dismissal (30 January) Mr Roberts queried his final pay calculations. He telephoned “fair work Australia” (I find in all probability the Fair Work Ombudsman rather than the Fair Work Commission) seeking advice about his final pay calculation and then (that day) emailed the employer expressing his view that there was a shortfall in his final pay calculations 7. On 1 February the employer’s accountant replied rejecting any shortfall or miscalculation. Other than this, Mr Roberts did not seek legal or industrial advice about his dismissal rights during this period. He did not then contemplate litigating his dismissal.

[37] Immediately prior to his dismissal (and unknown to the employer) Mr Roberts had arranged for a scan on a medical condition. Although largely remaining at home between 23 January and 19 February he was not admitted to hospital or put in the care of doctors. He went about his daily business and took an over-the-counter medication to deal with pain. He was inconvenienced but not impaired (in the period after he filed his application he had further scans and was hospitalised, but not prior).

[38] Events took a turn on 19 February 2019. Mr Roberts was home perusing his LinkedIn account. Mr Roberts noticed that the LinkedIn software algorithm had paired his skill set with a possible employment role as a sales executive in Queensland 8. To Mr Roberts’s astonishment it was a position advertised by his former employer AJ Baker which he knew nothing about. Mr Roberts believed it matched his skill set. He identified from the on-line notification that it had been advertised some weeks earlier. This caused him to doubt the genuineness of his redundancy.

[39] Mr Roberts immediately sought advice. On 19 February 2019 he telephoned “Fair Work Australia” 9. Whether this was the Fair Work Ombudsman or Fair Work Commission is not clear from the evidence, though in all probability it was again the Fair Work Ombudsman. Mr Roberts was advised by “fair work” that a 21 day period for filing an unfair dismissal claim applied. The “fair work” officer suggested to Mr Roberts that he immediately raise this new development with the employer and seek their response.

[40] At 10.44am on 19 February 2019 Mr Roberts emailed the company owner (Mike Baker) as follows: 10

“Morning Mike,

Based on my legal advice can I please ask you why this alternate position in Queensland Refrigeration Sales Executive was not offered to me?(Alternate Position/s as stated in my redundancy letter)

This position was listed on LinkedIn on Wednesday 30th January 2019 (within my in lieu 2 week period given by the company)

Brendan asked me before I starting at AJ Baker South Australia if I wanted just to go directly into Queensland (verbally). I said verbally give me 12 to 18 months here 1st before we talk about that... [documents inserted]

Await your prompt reply in writing with the vision of resolving this matter quickly and effectively.

Best Regards

Neil Roberts”

[41] No reply to this email was received on that or the following day.

[42] On 20 February 2019 at 2.34pm Mr Roberts commenced these proceedings.

[43] Mr Roberts did receive a reply from Mr Baker by email on 21 February 2019 at 2.28pm, one day after proceedings were issued. It simply read: 11

“Dear Neil,

Many thanks for your email on Tuesday.

If you wish to lodge something formal regarding the issue you raised in your email, I can then provide a formal response.

Regards

Mike”

[44] Mr Roberts’s evidence was that the job advertisement for the Queensland position on LinkedIn was altered on 20 February 2019 to give the impression it was only listed from 20 February, not 30 January. The evidence supports this contention. A screen shot taken by Mr Roberts of the advertisement on 19 February 2019 indicates that the advertisement had been placed for 20 days. 12 A screen shot taken the following day (20 February) indicates that the advertisement was “new”13. I find that a Queensland Sales Executive position had been advertised by AJ Baker from 30 January 2019 notwithstanding the 20 February 2019 advertisement for the same or similar position identifying it as newly advertised.

[45] The evidence of the employer is that the employer had advertised on-line for a Sales Executive in Queensland on 13 November 2018. That advertisement had remained live for a month. According to Mr Krummel’s evidence, it was then taken down as he formed a view that the positon no longer needed to be filled during the slower Christmas/New Year sales period but that (for some unexplained reason but without his authority) it was put back on line at the end of January 2019. Mr Krummel said that he did not actively seek to recruit the Queensland position until 4 March.

[46] Without needing to decide for current purposes the full history of the vacant Queensland position, it is apparent that a Sales Executive position in Queensland was vacant and advertised in the last month of 2018, that at the date of Mr Roberts’s redundancy it was not being actively advertised, that the decision to not recruit that position in January 2019 was temporary only 14, that the position was re-advertised from about 30 January and that active steps to fill the position were taken from 4 March.

[47] What is uncontested is that the vacant Queensland position was unknown to Mr Roberts at the time of redundancy. Nor was its prior advertising and the employer’s intention concerning whether to re-advertise or fill it communicated to Mr Roberts at the time of redundancy or in the days preceding.

The statutory provisions

[48] The provisions of the FW Act governing whether an extension of time should be granted are set out in section 394(3):

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[49] Mr Roberts’s application can only proceed to determination on the merits if he can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of a decision of a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd 15 which stated:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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.”

[50] I now consider each of the factors set out in section 394(3) of the FW Act.

Reason for the delay (section 394(3)(a))

[51] Mr Roberts advances three reasons for the delay.

[52] Firstly, and principally, he says that it was not until 19 February 2019 (the day prior to lodging the application) that he learnt, for the first time, that the employer was advertising a sales executive position in Queensland for which he considered himself qualified and should have been offered.

[53] Secondly, he says that on 20 February 2019, when the application was filed, he genuinely (albeit wrongly) believed that his dismissal had taken effect on 7 February 2019 and that his application was within the 21 day time limit.

[54] Thirdly, he says that he was dealing with a number of health issues immediately before and after his dismissal including during the period of delay which contributed to the delay in filing the application.

[55] I find the second and third explanations for the delay unconvincing.

[56] Mr Roberts knew that his dismissal took effect on 23 January 2019. His email to staff and customers that day said it was effective “immediately” 16. The termination letter he was provided by the employer on 23 January said it took effect immediately. Although he believed that some of his entitlements should have been calculated to the completion of the notice period in lieu, he was under no misunderstanding that his employment had ceased effective 23 January.

[57] In his application to the Commission Mr Roberts answered ‘yes’ to the question whether he was making his application within 21 calendar days of his dismissal taking effect (question 1.4 of F2). Whilst Mr Roberts claimed in his application that the date of effect of his dismissal was “07/02/2019” he had knowledge that his dismissal had in fact taken effect on 23 January 2019. It was not reasonable for him to hold any misunderstanding about that fact and to the extent he misunderstood the position in fact or law the employer did not contribute to such misunderstanding.

[58] I am not satisfied that Mr Roberts’s health issues contributed in any material way to the delay. There is no medical evidence before me that indicates he was unable to consider his position and take advice on his rights. He had a condition which was a worry and for which he was taking a mild painkiller and being tested. He was alert, was going about his daily life, was scanning the internet, had acted (on 30 January) to dispute his entitlements with his former employer and had in that first week after dismissal sought information from a government authority on his rights.

[59] The explanation for the delay is essentially that it was not until the 21 day period had passed that Mr Roberts saw the advertisement for the Queensland position and formed a view that his redundancy was not genuine.

[60] Although Mr Roberts was unhappy that he had been made redundant from 23 January, the evidence before me is that at the time of dismissal and in the days and weeks that followed (until 19 February) he had accepted, on face value, what had been told to him by the employer in his termination letter: 17

“Unfortunately we do not have any alternate vacant positions to suit your skillset and cannot offer you ongoing employment”.

[61] It was not until Mr Roberts saw AJ Baker advertise the Queensland position on 19 February that he considered that he had been misled. He immediately formed the view that there was and had been a vacant position (in his view) matching his skillset that the employer should have informed him about and offered to him.

[62] After learning of this information Mr Roberts moved swiftly. He immediately called into question the genuineness of his redundancy. He took immediate steps to obtain information about his workplace rights, from the government ‘fair work’ agency. That very afternoon he emailed the company owner seeking an explanation. Within 24 hours he had, of his own volition, completed an on-line application and lodged it with the Commission.

[63] Mr Roberts did not know of the advertised position until 19 February, after the period for lodgement had expired. I accept his evidence that the Queensland position was advertised from 30 January. There was nothing special about 19 February. Had Mr Roberts conducted an on-line search inside the 21 day period (it was advertised from days 7 to days 21 of the statutory period) the advertisement would have been capable of being seen by him direct on his LinkedIn or alternatively by a more detailed search. Mr Roberts’s evidence was that he only occasionally looked at his LinkedIn account and job advertisements over this time but not often. Yet he was home, and capable of doing so.

[64] The reason for delay is credible but the knowledge that formed the basis on which Mr Roberts concluded that his dismissal was unfair was capable of being uncovered by him inside the 21 day period.

[65] This is a credible explanation for the delay insofar as Mr Roberts advances his claim on the ground that the advertised position matched his skill set and that he should have been redeployed to it, or offered redeployment. If this were the only basis on which Mr Roberts was prosecuting his claim, the explanation for the delay would weigh in favour of an extension of time.

[66] However weighing more heavily against an extension is that Mr Roberts’s application is not simply grounded on his sense of injustice arising from the advertised position. His F2 application states two grounds: 18

“Because I had the installation sales and service sales to back me up why I should have stayed.

AJ Baker also advertised on LinkedIn for a refrigeration sales executive in the Queensland office the 30^th of January 2019 after writing to me saying that they had unfortunately have no other vacant positions that suit my skillset.”

[67] The first of these grounds bears no necessary relationship to the knowledge acquired by Mr Roberts on 19 February. He has, based on his evidence before me, a deep sense of injustice based on his view that his sales performance did not warrant his position being made redundant. This (his sales performance) is a matter that was within his knowledge and belief at the time of redundancy. The witness statement filed by Mr Roberts in these proceedings and in his oral evidence deals extensively with his views on his sales performance.

[68] There is no explanation, let alone a reasonable explanation, as to why Mr Roberts could not and did not file an application within the statutory time limit to litigate this ground on which he says his dismissal was unfair.

[69] Nor is there any impediment to an applicant filing an unfair dismissal application within time on a ground they intend to genuinely litigate and then, should fresh information subsequently come to light, seek leave to amend their application to include further grounds of alleged unfairness based on additional evidence.

[70] Whilst there is a reasonable explanation for not pursuing one ground of his application within the statutory time frame (evidence emerging of a vacant advertised position in Queensland) there is no reasonable explanation for not pursuing the other ground (sales performance) within time.

[71] Given this, the reason for delay in filing the application weighs against granting an extension of time.

Awareness of the dismissal taking effect (section 394(3)(b))

[72] For reasons already expressed, I find that Mr Roberts was aware of his dismissal taking effect on 23 January 2019.

[73] This is a factor that weighs against granting an extension.

Action taken to dispute dismissal (section 394(3)(c))

[74] Mr Roberts took no steps to dispute the fairness or genuineness of his dismissal until 19 February. The dispute he raised on 30 January concerned calculations of his final payment only. This is not akin to disputing the merits of a dismissal.

[75] Having received the employer’s response to his calculation dispute on 1 February, he took that matter no further.

[76] Mr Roberts was in a position to take advice on the fairness or genuineness of his dismissal in the days and weeks that followed his dismissal but did not do so. He could have sought information from the ‘fair work’ officer he spoke to on 30 January 2019 about his unfair dismissal workplace rights under the FW Act. He did not do so.

[77] However, once learning of the Queensland job vacancy on 19 February, Mr Roberts moved without delay in obtaining information, seeking an explanation, and lodging proceedings.

[78] These factors combined tend to act as counterweights in assessing this statutory consideration, though tend somewhat in favour of granting an extension.

Prejudice to the employer (section 394(3)(d))

[79] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances.

[80] Mr Roberts is seeking “to get my job back or to be financially compensated” 19.

[81] Given that Mr Roberts’s claim is in part based on his view that the Queensland vacancy matched his skill set, and given that (if the claim is successful) the Commission has power (amongst others) to order re-employment to an alternate position (such as the Queensland position) there may be some notional prejudice to the employer if proceedings of this nature impact its human resource and operational planning. However, the employer has not led specific evidence on those questions.

[82] The mere absence of prejudice is an insufficient basis to grant an extension. 20

[83] On the facts in this case, and given that the Commission’s power extends to a non-reemployment remedy should reinstatement be inappropriate, I consider this to be a neutral factor.

Merits of the Application (section 394(3)(e))

[84] I have received considerable documentary and oral evidence on the merits, both concerning sales data in South Australia and the process of decision-making and dialogue leading up to the redundancy.

[85] There are significant factual differences between the parties on each of these counts.

[86] It is only at a hearing on the merits that the disputed facts could be properly tested and findings made.

[87] Legal questions also arise on the merits, such as whether there was a genuine redundancy within the meaning of section 389 of the FW Act and, if not, whether the dismissal for redundancy was otherwise harsh, unjust or unreasonable.

[88] On the material before me neither case is unarguable or lacking in merit.

[89] On the facts in this case, I consider this to be a neutral factor.

Fairness between persons in similar position (section 394(f))

[90] Although Mr Roberts was not the only person made redundant in South Australia at the relevant time, no evidence or submissions raise issues of fairness with and between other persons.

[91] On the facts in this case, this is not a relevant factor.

Conclusion on extension of time

[92] The delay in lodgement of seven days is neither extreme nor small having regard to the 21 day statutory time limit.

[93] In considering whether exceptional circumstances exist, the conduct of Mr Roberts after dismissal is relevant but a reasonable explanation for the delay is not needed for the whole of the period or may in fact not be required at all if the circumstances are otherwise exceptional. 21

[94] The reason for delay is that AJ Baker had advertised a vacant position for which Mr Roberts considered himself qualified and which he considered a breach of a representation made at the time of dismissal (that no such vacancies existed). This was first known to Mr Roberts some six days after the 21 day limit expired. This reason for delay in litigating that ground of his application is genuine and credible. It was that acquired knowledge that ultimately motivated Mr Roberts to make the claim.

[95] This reason for delay weighs in favour of granting an extension but not overwhelmingly so given that the advertisement was accessible to Mr Roberts at least from 30 January had he conducted an on-line search or checked his LinkedIn account.

[96] The other considerations in section 394(3) are equivocal: most are neutral though the steps taken by Mr Roberts to dispute the dismissal weigh somewhat in favour of an extension of time and his knowledge of the date dismissal weighs against.

[97] The statutory test requires “exceptional circumstances” to be made out in order to extend the time for lodgement. The Commission needs to be positively satisfied that the prescribed period should be extended 22. Are the circumstances exceptional in the sense of being out of the ordinary course, or unusual, or special, or uncommon?

[98] Past decisions of the Commission (although each is decided on its own facts) have accepted that material facts known by a redundant employee only after the statutory time limit has expired may constitute exceptional circumstances warranting an extension of time. 23

[99] Exceptional circumstances may include 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. Those circumstances in favour of a finding of exceptional circumstances are:

•  The vacancy in Queensland being advertised prior to the applicant’s redundancy, being temporarily withdrawn from being advertised in the month prior to redundancy and then being re-advertised a week after the redundancy;

•  None of the above being known to Mr Roberts at the time of redundancy or during the statutory period for the lodgement of unfair dismissal claims;

•  That the appropriateness of redeployment to a vacant or unfilled position within an employer’s enterprise is an issue relevant to whether a redundancy is genuine;

•  Knowledge of the advertised position is relevant to an Applicant forming a sense of grievance that their redundancy may not be genuine on the ground that redeployment was reasonable; and

•  Mr Roberts acted swiftly upon acquiring knowledge of the advertisement.

[100] Weighing against is that Mr Roberts knew the date his dismissal took effect, had capacity to inform himself of his rights, and could have uncovered the advertisement inside the 21 day period had he conducted relevant on-line searches.

[101] Weighing even more strongly against is that Mr Roberts’s application is not just grounded on the events of 19 February. They were the trigger for filing his application but on 20 February Mr Roberts also litigated the proposition that he should have “stayed” in employment due to his sales performance. If an extension of time is granted Mr Roberts will be prosecuting an application on at least one ground that he could have litigated inside the statutory time frame.

[102] Mr Roberts has presented no reasonable explanation as to why he could not have commenced proceedings on that ground and done so within time. While he submits 24 that a matrix used by the employer (and disclosed in these proceedings) was not made known to him at the time of dismissal (and would have been responded to had it been made known to him), this is not a sufficient explanation. The fact that there was in existence an unknown internal document relied on by the employer concerning sales in the Adelaide office simply means that there was a further item of evidence on the subject of his dismissal (redundancy on account of sales) that Mr Roberts would have been able to take issue with. Its non-production did not mean that Mr Roberts was unaware of the redundancy and the reason for it asserted by the employer on 22 and 23 January. Nor was the matrix an item of evidence that led Mr Roberts to include ground 1 in his application when it was eventually filed. The matrix was not disclosed to him until once these proceedings commenced. There is no evidence before me that he had a different body of knowledge about sales on the date of filing his application than he did on the day he was made redundant from the business.

[103] The Commission has previously found exceptional circumstances not to have existed in matters where some facts relevant to the genuineness of a redundancy were unknown inside the 21 day time limit but other grounds advanced were known or capable of being known 25.

[104] Having regard to the considerations in section 394(3) of the FW Act, and on balance, I am not satisfied that exceptional circumstances exist. There is a credible explanation for not litigating the redeployment issue within the statutory time frame but no reasonable explanation for Mr Roberts delaying in filing an application and invoking the Commission’s jurisdiction, as he ultimately did, on the ground that (in his view) his more than satisfactory sales performance in South Australia made his dismissal unfair.

[105] In these circumstances, I do not consider it appropriate to exercise discretion to extend the time for lodgement.

[106] As the application is out of time, it must be dismissed. I issue an Order to that effect in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

M. Boland, with permission, and N. Roberts, for the Applicant

A. Roncoroni, with permission, and M. Baker, for the Respondent

Hearing details:

2019.

Adelaide; by telephone.

28 May.

Printed by authority of the Commonwealth Government Printer

<PR709085>

 1 Respondent’s written outline of position on section 382 13 May 2019 paragraphs 2 to 7 (with errors in addition corrected)

 2   Mr Roberts’s dismissal took effect on the date of dismissal, not the date payment in lieu of notice ceased: Siagian v Saenl Pty Ltd [1994] IRCA 2; Micallef v Garfield Child Care Pty Ltd[2013] FWC 5447 at [40]; Galati v Veneto Club[2015] FWCFB 1830 at [9]

 3   JM4 page 2

 4   A5

 5   A15

 6   BK6

 7   R6

 8   A8 and A9

 9   A23 Statement of Neil Roberts paragraph 7

 10 R8 and A10

 11   A11

 12   A8

 13   A9

 14 R13 Statement of Brendan Krummel paragraph 63

 15   [2011] FWAFB 975 at [13] See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

 16   R3

 17   A5

 18 F2 section 3.2

 19 F2 Question 2.1

 20 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 21   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288

 22   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 23   John Byrnes v Rexel Electrical Supplies Pty Ltd[2015] FWC 5776; McMechan v National Roads and Motorists’ Association[2016] FWC 5826; Williams v The Building Connection Group Pty Ltd[2017] FWC 30

 24   Applicant’s Further Written Submission 11 June 2019

 25   Schneider v Apollo Motorhome Holidays Pty Ltd[2015] FWC 482 at [10] and [20]. This decision was upheld by a Full Bench of the Commission [2015] FWCFB 1259. See also Ellery v Sarina Russo Job Access[2016] FWC 1441 at [23] - [26]