Nelson v MSD Wholesale Pty Ltd

[2016] FWC 2081

[2016] FWC 2081

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
James Nelson
v
MSD Wholesale Pty Ltd T/A McLernon’s Everything Business
(U2016/724)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 4 APRIL 2016
Application for relief from unfair dismissal.

1

[1]        Mr James Nelson alleged the termination of his employment on 27 November 2015

was unfair.

[2]        His unfair dismissal application lodged on 19 February 2016 was not made within 21

days of the date of the dismissal.

[3]        The Fair Work Commission can extend time for the lodging of an unfair dismissal

application if it is satisfied that there are exceptional circumstances. In assessing whether

there are exceptional circumstances the Commission must have regard to certain matters.

Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion

to decide whether to extend time.

[4]        The meaning of “exceptional circumstances” was considered in Nulty v Blue Star

2

Group Pty Ltd where the Full Bench said:

“[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

[2016] FWC 2081

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.”

[Endnotes not reproduced]

(a) the reason for the delay;

[5]        Mr Nelson was given notice on 4 November 2015 that his position was redundant. Mr

Nelson was given three weeks’ notice and he was advised that because he was on leave at the

time his employment would end on 27 November 2015. Mr Nelson returned to work on 11

November 2015 and it was then agreed that he would be paid the remaining notice in lieu.

[6]        MSD Wholesale Pty Ltd stated that the date the dismissal took effect was 19

November 2015.

[7]        Mr Nelson gave evidence that in February 2016 he saw an advertisement placed by

MSD published on 24 November 2015 for 4-6 working holiday makers for 2-3 weeks’ work

in December 2015. Further, Mr Nelson gave evidence that he saw a new casual employee

working for MSD on 22 February 2016 who told him he had been working for seven weeks.

[8]        Mr Nelson said that when he was made redundant he was told he would receive

redundancy payments. He said six weeks after the termination of his employment he was told

he would not be paid redundancy. He submitted that the promise to pay the redundancy pay

was made to make him forgo his legal right to challenge the redundancy within 21 days.

[9]        Ms Dianne McLernon, the Director of MSD, accepted that the advertisement was

placed in November 2015. She said it was done in anticipation of MSD winning a contract

which would have resulted in a couple of weeks’ work. It was her evidence that MSD did not

win the contract and no-one was employed.

[10]      Ms McLernon accepted that MSD employed a casual employee from 13 January 2016

and this person was employed until the end of February early March. She said this person was

employed to cover employees absent on leave and was no longer employed. She said that they

currently have nine employees.

[11]      Ms McLernon said that MSD had been downsizing since 2015 and at the time Mr

Nelson was made redundant, five additional employees were made redundant.

[12]      Mr Nelson said he found out that MSD would not pay him redundancy on 17

December 2015. When asked why he waited until 19 February 2016 to challenge his

dismissal, he said he was too busy with other court proceedings seeking to recover his

redundancy pay. He also said he was unaware of his legal rights.

[13]      Mr Nelson submitted that the reason he did not file an unfair dismissal application was

because he was unaware that his redundancy was not genuine until 16 February 2015.

[14]      I do not accept that the nonpayment of redundancy pay provides Mr Nelson with a

reasonable explanation for the whole of the delay. Accepting that he did find out on 17

December 2015 that the redundancy was not going to be paid does not explain why he did not

lodge his application until 19 February 2016. That he was unaware of his unfair dismissal

rights is not unusual and that he gave priority to his claim for redundancy pay is not a
[2016] FWC 2081

reasonable explanation for not lodging this claim. Further, it is difficult to see how Mr Nelson

can maintain a view that he is on the one hand entitled to redundancy pay but on the other

hand was unfairly dismissed because his position was not redundant.

[15]      The reasonableness of the delay in lodging his application is directly linked to his

claim that his position was in fact not redundant in November 2015. An employer cannot be

expected to continue to employ a full time employee in anticipation that there may be work at

some indeterminate time in the future. I am unable to conclude that it would have been

reasonable to redeploy Mr Nelson to one of the casual positions that were anticipated to arise

in mid December 2015 as those positions did not exist at the time Mr Nelson was made

redundant. Further, I am to conclude that it would have been reasonable to redeploy Mr

Nelson to the casual position that existed in mid-January 2016 as that position did not exist at

the time Mr Nelson was made redundant.

[16]      If there were no operational reasons for Mr Nelson’s dismissal in November 2015 and

there was work he could have been redeployed to perform at that time, then he should have

lodged his unfair dismissal application then. That MSD may have had some casual work to be

performed at a later date did not change that. I therefore do not consider that Mr Nelson had a

reasonable explanation for the whole of the delay. This weighs against a finding that there are

exceptional circumstances.

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

[17]      Mr Nelson was aware of the dismissal when it took effect and had the full 21 days to

lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[18]      Mr Nelson did not take any steps to dispute his dismissal as he accepted that his

position was redundant. I consider this criterion to be a neutral consideration.

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

[19]      MSD did not make any submission or call any evidence of any prejudice. This weighs

in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[20]      Mr Nelson says this was not a genuine redundancy because he should have been

redeployed to the casual positions in December or the casual position in January.

[21]      MSD said that it had operational reasons to make Mr Nelson redundant. There was no

evidence that there was any consultation with employees prior to the employees been given

notice of termination. It submitted that there were no redeployment options available.

[22]      I am not able to make a final assessment of the merits as there are factual disputes

between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.
[2016] FWC 2081

[23]      There were other persons made redundant at the same time. Mr Nelson did not make

any submissions in relation to how this was relevant to this criterion. I consider it to be neutral

consideration.

Conclusion

[24]      I am not satisfied that there are exceptional circumstances. Had Mr Nelson been able

to establish that he only discovered after the 21 day time limit that there had been casual

employees employed soon after he was dismissed to do work he could have done, then he

would have had a reasonable explanation for the delay. The employment of a casual worker

some ten weeks after his dismissal is not in this category. The only criterion that weighs in

favour of a finding of exceptional circumstances is the lack of prejudice to MSD and that

alone is not a sufficient basis to find that there are exceptional circumstances.

[25]      Mr Nelson’s application for an extension of time is therefore rejected and his

application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

J. Nelson on his own behalf.

D. McLernon for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

April 1.

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1

Letter of termination dated 4 November 2015.

2

[2011] FWAFB 975.