Nigel McNiece v Waratah Landscape & Garden Supplies Pty Ltd
[2024] FWC 3492
•16 DECEMBER 2024
| [2024] FWC 3492 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nigel McNiece
v
Waratah Landscape & Garden Supplies Pty Ltd
(U2024/12461)
| COMMISSIONER MCKINNON | SYDNEY, 16 DECEMBER 2024 |
Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed
Mr Nigel McNiece was employed by Waratah Landscape and Garden Supplies Pty Ltd (Waratah) as a truck driver from 15 October 2021 until he was terminated by reason of redundancy with effect on 24 April 2024.
On 18 October 2024, Mr McNiece applied to the Commission for an unfair dismissal remedy from Waratah. Under s.394 of the Fair Work Act 2009 (the Act), an application for an unfair dismissal remedy must usually be made within 21 days after the dismissal took effect. That means that Mr McNiece’s application was required to be filed by 15 May 2024. The application is 156 days late.
The question is whether additional time can and should be allowed for Mr McNiece to make the application to the Commission. For the reasons that follow, I have decided not to allow additional time for Mr McNiece to make his application.
Extension of time
If an application for unfair dismissal remedy is not made within 21 days after the dismissal took effect, additional time may be allowed under s.394(2) of the Act but only if the Commission is satisfied that there are exceptional circumstances and that an extension of time is appropriate.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.”
In reaching the state of satisfaction as to whether there are exceptional circumstances for the purpose of extending the time to apply for an unfair dismissal remedy, it is necessary to consider each of the matters listed in s.394(3) of the Act. These are:
a)the reason for the delay,
b)whether the person first became aware of the dismissal after it had taken effect,
c)any action taken by the person to dispute the dismissal,
d)prejudice to the employer (including prejudice caused by the delay),
e)the merits of the application, and
f)fairness as between the person and other persons in a similar position.
Consideration
Reason for delay: The reason given by Mr McNiece for the late filing of his application is that on 2 May 2024, he spoke to “Fair Work” and was told that redundancy was not an option as part of Waratah’s business was being sold to another business. In September 2024, Mr McNiece was speaking to another former employee of Waratah. The employee told him that he had recently been paid redundancy pay arising from the same circumstances as Mr McNiece in April 2024. The former employee explained that Waratah’s business had not been sold to the other business – only some of its assets. Mr McNiece sought further advice and formed the view that he should have been paid redundancy pay on termination of employment. He wrote to Waratah on 29 September 2024 requesting payment of 6 week’s redundancy pay but did not receive a response. He says he was then told by “Fair Work” to make an unfair dismissal application and did so.
Accepting what Mr McNiece says as true, and having heard from Waratah, it would appear that both parties were misdirected in relation to redundancy pay obligations and entitlements in April and May 2024. This was despite seeking advice and making enquiries, including in Mr McNiece’s case, within 8 days of his dismissal. The apparent misdirection is an exceptional circumstance, as is Mr McNiece’s late discovery of the fact that another driver, who had been dismissed in the same circumstances, had been paid redundancy pay in September 2024. These matters weigh in favour of the grant of additional time.
Whether the person first became aware of the dismissal after it had taken effect: Mr McNiece knew that his employment had come to an end immediately upon his dismissal with effect from 24 April 2024. In the circumstances, this weighs against the grant of additional time.
Any action taken by the person to dispute the dismissal: As noted above, on 2 May 2024, Mr McNiece spoke to “Fair Work” about his entitlements on termination. He was told that redundancy was not an option. Once he realised this might not be correct in September 2024, Mr McNiece sought further advice and then wrote to Waratah on 29 September 2024 requesting payment of 6 week’s redundancy pay. After not receiving any response, he made this application. The available conclusion is that Mr McNiece made reasonable and prompt enquiries about his entitlements on termination and again in September after speaking to a former colleague, but did not dispute the actual dismissal until he made this application. This weighs against additional time.
Prejudice to the employer (including prejudice caused by the delay): Waratah submits that it will experience financial stress if the application proceeds, particularly at this time of year. There does not seem to be any real dispute as to the facts surrounding dismissal (only the application of those facts to the law in relation to redundancy pay). Any concern that memories may have faded as to those events given the passage of time since April 2024 is of limited weight. On balance, the prejudice to Waratah is the same prejudice that would be experienced by any medium-sized business in defending an unfair dismissal claim. The time of year is also a neutral consideration given that the application was made in October 2024, and the delay in programming of the case is at least in part due to the lack of any response from Waratah to the application.
Merits of the application: The application is about Mr McNiece’s claim for payment of redundancy pay. It does not otherwise assert that the dismissal was unfair or that it was not a genuine redundancy. On the face of the record, the dismissal was likely a genuine redundancy, although there is no evidence yet before the Commission in relation to consultation. The business sold its trucks to another business, and Mr McNiece was one of its truck drivers. Once the trucks were sold, Waratah had no operational requirement for the employment of truck drivers, limiting the available and reasonable redeployment options. An offer of what appears to have been suitable alternative employment was made to Mr McNiece by the business that bought the trucks from Waratah. The role would have seen Mr McNiece continuing to drive the same trucks as he had driven for Waratah, in largely the same environment. As was his right, Mr McNiece did not accept the offer of alternative employment because of what he understood to be reduced rates of pay. If the dismissal was a genuine redundancy, it cannot have been an unfair dismissal. This weighs against the grant of additional time.
Fairness as between the person and other persons in a similar position is relevant in this case because at least one other employee and potentially two, dismissed in the same circumstances as Mr McNiece, subsequently received payment of redundancy pay in September 2024. This weighs in favour of additional time.
Conclusion
I am satisfied there are exceptional circumstances in this case for the reasons described above. However, on balance I am not satisfied that it is appropriate to allow additional time for the application to be made. The application is in effect an underpayment claim. The subject matter of the application can be pursued as a small claim through the Small Claims Division in the Local Court of NSW, or with the assistance of the Fair Work Ombudsman. The availability of an alternative legal remedy to achieve the same outcome as sought by this application weighs against extending time for the purpose of overcoming the jurisdictional hurdle of the 21-day filing period. Further, my concern as to the merits of the case weighs against the grant of additional time and on balance, outweighs each of the other considerations weighing in favour of additional time, either taken together or separately.
The result is that the application is not made in time in accordance with the Act and must be dismissed.
Order
The application is dismissed.
COMMISSIONER
Appearances:
N McNiece on his own behalf.
J Bartolo for the respondent.
Hearing details:
2024.
Sydney (by video):
December 11.
[1] [2011] 203 IR 1 at [13].
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