Paul Bunce v iiNet Limited T/A iiNet

[2014] FWC 9232

[2014] FWC 9232

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Bunce
v
iiNet Limited T/A iiNet
(U2014/8328)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 18 DECEMBER 2014

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Paul Bunce (the Applicant) made an application on 14 July 2014 under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal on 6 June 2014 was harsh, unjust and unreasonable. On 28 July 2014, iiNet Limited T/A iiNet (iiNet - the Respondent) objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.394(2) of the Act and that the dismissal was a case of genuine redundancy. The application was lodged 17 days outside the 21 day statutory timeframe.

[2] Directions were issued on 29 July 2014 setting out the timetable for the filing of submissions and any evidentiary material to be relied on by the parties. Mr Bunce did not comply with those directions. On 25 August 2014 iiNet made an application that Mr Bunce’s unfair dismissal application be dismissed pursuant to s.399A of the Act. The Fair Work Commission (the Commission) heard that application on 26 August 2014 and declined to grant the application. Revised directions were subsequently issued which Mr Bunce complied with and the extension of time hearing was relisted for 7 October 2014.

[3] At the hearing Mr Bunce was self-represented and gave evidence on his own behalf. Mr Duncan Fletcher appeared with permission for iiNet, while Ms Allison Adams, iiNet’s Human Resources Manager, gave evidence for the Respondent.

[4] For the reasons outlined below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application cannot proceed and is therefore dismissed.

Background

[5] Mr Bunce commenced work in Canberra with TransACT Communications Pty Ltd (TransACT), a provider of internet, phone and pay television services, in March 2012. In 2012 iiNet purchased TransACT and, as a result, TransACT became a subsidiary of iiNet.

[6] Mr Bunce was employed by TransACT as a Health, Safety and Environment Officer. He was dismissed on 6 June 2014 with iiNet citing redundancy as the reason for his termination.

[7] At the time of his dismissal Mr Bunce did not doubt the genuineness of the redundancy. However, on 5 July 2014 while searching the internet for possible employment opportunities he noticed an advertisement on the iiNet website for a Health and Safety Advisor position based in Adelaide (the Adelaide job). This caused Mr Bunce to question the genuineness of his redundancy and lead him to conclude that his dismissal was unfair. It was not disputed that the Adelaide job was first advertised on 24 June 2014.

[8] On 7 July 2014 Mr Bunce made an application under s.773 of the Act for the Commission to deal with an unlawful termination dispute. Mr Bunce subsequently withdrew that application on 9 July 2014 after he was advised by the Commission that workers in the ACT are unable to pursue unlawful termination disputes as they can make general protections applications under s.365 of the Act. Further, Mr Bunce was advised that if he had been dismissed, he could make either an unfair dismissal or a general protections application, the latter option requiring a Form F8 to be completed. However, upon further investigation Mr Bunce did not consider the Form F8 to be the correct form. Following further discussions with the Commission on 14 July 2014, Mr Bunce sought legal advice and submitted his unfair dismissal application later that day.

[9] At Item 3.2 of his unfair dismissal application Mr Bunce cited the following as the reasons why he considered his dismissal to be unfair:

“1. At no time was the redundancy mentioned at any time prior to that meeting on Friday 6th June.
2. ...
3. ... although my letter of redundancy stated:
a) “this letter confirms the outcomes of the discussions held this week regarding your position” No discussions were had with me and the first I knew of redundancy was on the morning of 6th June
b) “as we discussed, whilst we have assessed your suitability for other roles within the organization................” Again, no such discussion took place.”

[10] As noted above, iiNet raised two jurisdictional objections to Mr Bunce’s application.

The Applicant’s evidence

[11] In his witness statement 1 Mr Bunce reiterated many of the points made in his application (the key points are set out at paragraphs [7] to [9] above). In short, he contended that the reason for the delay in making his application was that he had not seen the advertisement for the Adelaide job until 5 July 2014 and only after that discovered that he could make application to the Commission to assist with his claim for unfair dismissal.

[12] Under cross examination, Mr Bunce stated that following his dismissal he was not searching the internet for job opportunities every day but rather was doing so every two to three days. Mr Bunce conceded that had he been searching the internet on a daily basis he would most likely have seen the Adelaide job on 24 June 2014 when it was first advertised and that this would have given him the opportunity to make his unfair dismissal application within the 21 day statutory timeframe which ended on 27 June 2014.

[13] As to the reason why he did not search the internet until 5 July 2014, Mr Bunce cited several reasons. These were the need to attend parent teacher interviews regarding his children on 25 and 26 June, not returning from a weekend trip away until 30 June 2014 and doing some house painting for a friend. The reasons for Mr Bunce subsequently not making his application until 14 July 2014 are set out at paragraph [8] above.

[14] Further, Mr Bunce indicated that while he agreed to a certain extent with Ms Adams’ characterisation of the difference between his former role and the Adelaide job, in his view the jurisdictional responsibilities of the two roles were not significantly different. Mr Bunce also stated that he considered that he had the qualities required to perform the Adelaide job, although he did not have tertiary qualifications, and that he was willing to relocate at his pre-existing level of remuneration to take up the role. Mr Bunce attested that he had applied for the Adelaide job and had contacted the iiNet Human Resources line and left a message regarding the job but had not had any response to either his application or his voice mail message.

The Respondent’s evidence

[15] Ms Adams attested 2, inter alia, that since Mr Bunce had been made redundant on 6 June 2014 neither iiNet nor any of its related entities had employed a person in the role of Health, Safety and Environment Officer. As to the Adelaide job, Ms Adams attested that the position was not only more senior but also attracted a higher salary than Mr Bunce’s former role. Ms Adams further attested that iiNet had not been recruiting for the Adelaide job as at 6 June when Mr Bunce was made redundant.

[16] Under cross examination, Ms Adams stated that since iiNet had acquired TransACT in 2012 it had been downsizing its Canberra operations. As to the differences between Mr Bunce’s former role and the Adelaide job, Ms Adams cited as key differences the latter role’s larger geographic area of responsibility, the larger number of employees covered by the role, the higher level of remuneration attached to the role and that it required tertiary qualifications and five years leadership experience in health and safety.

[17] When asked why the Adelaide job had not been brought to the attention of Mr Bunce when he was made redundant on 6 June 2014, Ms Adams stated that this was because that the role was not available at that date. Further, in response to a question from the Commission, Ms Adams stated that to her knowledge as at 6 June 2014 the creation of the Adelaide job was not being contemplated.

The Relevant Legislation

[18] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(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).

394(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[19] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[20] As noted above, Mr Bunce submitted that he only considered his dismissal unfair when he saw the Adelaide job advertised on 5 July 2014. Under cross examination Mr Bunce outlined a range of reasons as to why he did not find the job until 5 July 2014 despite the fact that it was first advertised on 24 June 2014. He also provided a number of reasons as to why his unfair dismissal application was then not made until 14 July 2014. However, it is noteworthy that these factors all appear to relate to matters which were within Mr Bunce’s control.

[21] Mr Bunce also contended that it was only after he saw the Adelaide job advertised that he discovered that he could make application to the Commission to assist with his claim for unfair dismissal.

[22] For its part, iiNet submitted that a lack of knowledge or failure to obtain legal advice is not unusual or uncommon in cases involving dismissal. Further, it pointed out that the reasons cited at Item 3.2 of Mr Bunce’s application (see paragraph [9] above) all referred to a lack of consultation as to the reason why Mr Bunce considered his dismissal to be unfair. However, iiNet argued that these circumstances were all known to Mr Bunce at the time of his dismissal and do not arise from the Adelaide job being advertised.

[23] Together these factors support a finding that the reasons for the delay do not constitute exceptional circumstances.

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

[24] Mr Bunce did not dispute that he became aware of his dismissal on 6 June 2014 when he was made redundant.

[25] iiNet pointed out that Mr Bunce had accepted the redundancy payment which he took in good faith.

[26] This does not point to the existence of any exceptional circumstances.

(c) Any action taken by the person to dispute the dismissal

[27] Mr Bunce acknowledged that he took no action to dispute his dismissal until after he became aware of the Adelaide job, with that action being the making of his unfair dismissal application. Ms Bunce further submitted that he did not dispute his dismissal prior to becoming aware of the Adelaide job because up until that point he considered his redundancy to be genuine.

[28] iiNet submitted that Mr Bunce took no action to dispute his dismissal either within the 21 day statutory timeframe for the making of an unfair dismissal application, when he became aware of the Adelaide job or in the absence of any response to his application or voice mail message regarding the Adelaide job. In short, iiNet submitted that Mr Bunce had taken no action to dispute his dismissal prior to making his unfair dismissal application.

[29] Mr Bunce’s lack of action to dispute his dismissal militates against a finding of the existence of exceptional circumstances.

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

[30] iiNet pointed to the costs it had incurred in having to respond to Mr Bunce’s unlawful termination application which was later withdrawn and in seeking to have Mr Bunce’s unfair dismissal application dismissed on the basis that he had not complied with the Commission’s directions. iiNet also highlighted that, were Mr Bunce’s application to proceed, it would incur further costs in defending what it considered to be an unmeritorious claim.

[31] Mr Bunce made no comment on this issue.

[32] I consider this factor to be a neutral consideration.

(e) The merits of the application

[33] Mr Bunce’s application in essence raises questions about the genuineness of his redundancy as per s.389 of the Act.

[34] iiNet submitted that Mr Bunce was in a very weak position given that a proper process of consultation had occurred and the significant differences between Mr Bunce’s former role and the Adelaide job.

[35] While, based on the material before the Commission, there do appear to be potentially significant differences between Mr Bunce’s former role and the Adelaide job, there are also questions regarding whether or not iiNet complied with any relevant consultation requirements and whether or not there was scope for Mr Bunce to be redeployed.

[36] Together, this supports a finding that Mr Bunce’s application is potentially arguable. However, based on the material before the Commission, the merits of Mr Bunce’s application do not appear strong or compelling.

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

[37] Mr Bunce submitted that the reasons for the delay in this case distinguished his application from other similar matters. Hence, fairness would not be compromised.

[38] iiNet on the other hand submitted that Mr Bunce was effectively submitting that the 21 day statutory timeframe should be extended in circumstances where an employer subsequently advertises a position. This iiNet contended would be a dangerous precedent.

[39] This is a relevant consideration.

Consideration of the issues

[40] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 3(Nulty) in the following way:

“[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.

[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...” [Underlining added]

[41] By way of background the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in identical terms to s.394(2)(a) of the Act.

[42] As previously noted, Mr Bunce contended that it was only after he saw the advertisement for Adelaide job on 5 July 2014 that he discovered that he could make application to the Commission to assist with his claim for unfair dismissal. To paraphrase Nulty, it appears that until 5 July 2014 Mr Bunce was not aware that he could make an unfair dismissal application. Consistent with Nulty, this is not an exceptional circumstance.

[43] Further, the reasons cited by Mr Bunce in his application (see paragraph [9] above) as to why he considered his dismissal to be unfair would have all been known to him at the time he was dismissed and do not arise from him seeing the Adelaide job advertisement on 5 July 2014. While, as noted above, Mr Bunce’s unfair dismissal application is potentially arguable, the absence of any compelling reasons for the delay in Mr Bunce making his application together with the absence of any action by him to dispute his dismissal all weigh heavily against a finding of the existence of exceptional circumstances warranting an extension of time for the making of his unfair dismissal application.

Conclusion

[44] Having considered all of the factors set out in s.394(3), I find that there are no exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be issued with this decision.

Appearances:

P. Bunce on his own behalf.

D. Fletcher for iiNet Limited T/A iiNet.

Hearing details:

2014.

Canberra and Perth (telephone hearing):

August 26.

Canberra and Perth (video hearing):

October 7.

 1   Exhibit B1

 2   Exhibit F1

 3 (2011) 203 IR 1

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