Peter Badenoch v Flinders Campus Community Services (FCCs) T/A Flinders One

[2014] FWC 8207

[2014] FWC 8207 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Badenoch
v
Flinders Campus Community Services (FCCS) T/A Flinders One
(U2014/14580)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 18 NOVEMBER 2014

Application for relief from unfair dismissal - extension of time granted.

[1] On 17 November 2014 I advised the parties that I was satisfied that an extension of time for the lodgement of Mr Badenoch’s application should be granted. This decision reflects my reasons for reaching this conclusion.

[2] On 25 October 2014 Mr Badenoch lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with Flinders Campus Community Services Inc T/A Flinders One (Flinders One). In that application, Mr Badenoch advised that his dismissal took effect on 2 October 2014. He requested that the Fair Work Commission take the following information into account in considering the late lodgement of his application.

“On Thursday 2/10/14 was given a half hours’ notice prior to attending a meeting that I was told of my redundancy.

This occurred one day before planned annual leave was to commence for an overseas holiday, not returning until 20/10/2014 where I sought advice from the fairwork ombudsman who made an appointment for me to see legal service on 24/10/2014.” 1

[3] The application was referred to me for consideration. On 30 October 2014 my Associate advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 17 November 2014. Mr Badenoch was required to provide a witness statement and a copy of any document relied upon, by 10 November 2014.

[4] The Employer’s Response (Form F3) to the application advised that the correct name of the employer was Flinders Campus Community Services (FCCS). It confirmed that Mr Badenoch’s termination of employment took effect on 2 October 2014. Flinders One objected to an extension of time and also objected to the application proceeding on the basis that the termination of Mr Badenoch’s employment was a case of genuine redundancy.

[5] Mr Badenoch provided a statement 2 which address to the extension of time issue in the following terms:

“I was on conference in Sydney with the respondent from Sunday September 29, 2014 until Wednesday October 1, 2014. I say no mention of my redundancy was suggested to me during this time.

Regarding paragraph 1, the respondent was well aware that I would be out of the country in Nepal during my annual leave commencing Monday October 6, 2014 until Friday October 17, 2014 as attached to the respondents F3 Form. I further note the respondent made mention of my planned return to work on Monday October 20, 2014.

Regarding paragraph 2, I reject the respondents’ argument that I had 1.5 days to lodge as I was in shock of my dismissal.

The respondent stated ‘I had four (4) days business days after my trip to lodge an application prior to the deadline’. I say one day after my return to Adelaide being Monday 20, 2014, I made an appointment with legal services as recommended by fair work Australia, being the first available on Friday October 2014. As a result I lodged my F2 application the following day on Saturday October 25, 2014.

Regarding paragraph 3, I reject the respondent’s argument that I had access to the e- lodgement system for the duration of my annual leave. I say no internet access was available to me whilst overseas; indeed I was without any mobile phone service for the duration of my time in Nepal.

I say the respondent was fully aware of my commitments from the day of my dismissal, therefore I do not believe a 2 day late lodgement constitutes reasonable grounds for the dismissal of my application.”

[6] The extension of time issue was considered through a telephone conference on 20 November 2014. A sound file record of this conference was kept. Mr Badenoch participated in this conference and the respondent was represented by Mr Nairn.

[7] I have amended the application so as to correctly identify the respondent as Flinders Campus Community Services (FCCS) T/A Flinders One.

[8] I have taken all of the information before me into account in considering the extension of time issue.

[9] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[10] Section 394 states:

“394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[11] The termination of Mr Badenoch’s employment took effect on 2 October 2014. The application was lodged 23 days later which is outside of the 21 day time limit specified in s 394(2). It can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Badenoch’s circumstances can be regarded as exceptional for the purposes of this subsection.

[12] In Nulty v Blue Star Group Pty Ltd 3 a Full Bench of the FWC addressed this concept of exceptional circumstances in the following terms:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[13] I have adopted this approach.

[14] The information provided by Mr Badenoch discloses that he left Australia for Nepal on Monday, 6 October 2014 and returned on 19 October 2014. Mr Badenoch lodged his application five days later after obtaining legal advice on 24 October 2014. He advised that mobile telephone and Internet service was not available to him whilst he was in Nepal. In this respect he advised that the termination of his employment meant that he lost access to the mobile telephone which he had previously utilised and that the personal mobile phone he then obtained did not enable access from Nepal.

[15] Mr Badenoch also advised that, following the termination of his employment he was shocked and, at that time, did doubt that the termination of his employment was a genuine redundancy.

[16] I do not consider that Mr Badenoch’s shock and initial views about the termination of his employment represent an acceptable reason for the delay but I am satisfied that Mr Badenoch’s explanation for the delay associated with his prearranged travel to Nepal and inability to communicate whilst there represents reasons for the delay which are consistent with the requirement that exceptional circumstances are made out.

[17] In terms of s.394(3)(b), Mr Badenoch was clearly aware of the termination of his employment on 2 October 2014.

[18] Apart from the late lodgement of this application, Mr Badenoch did not take any other action to challenge the termination of his employment.

[19] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter, but this, of itself does not form a basis for an extension of time.

[20] In terms of the merits of the application, I have not reached any conclusion with respect to the Flinders One objection to the application on the basis that the termination of Mr Badenoch’s employment was a case of genuine redundancy. I have noted that, in his application, Mr Badenoch advises that he seeks a 26 weeks redundancy payment as opposed to the 18 weeks he received. Mr Badenoch asserted that he did not believe that the termination of his employment was a genuine redundancy as his job role has now been divided amongst the existing employees that he once oversaw. 4

[21] Flinders One, in its Form F3 and in the conference on 17 November 2014 advised that it had restructured its operation to focus on cafes rather than restaurants and refectories. This had resulted in a reduction of the number of facilities it operated and meant that five staff were made redundant. Flinders One provided further detail as to the basis for this restructure and confirmed that the role previously occupied by Mr Badenoch had not and would not be replaced in the foreseeable future.

[22] In response, Mr Badenoch disputed the extent of the revenue loss and asserted that the termination of his employment did not represent a genuine redundancy on the following bases: 5

“I dispute the 26% of revenue loss. Included in the restaurant revenue was the sister outlet ‘One Byte’ revenue, which is still in operation. Included in the Refectory revenue was the functions revenue which is also still in operation only relocated to another area.

The cafe module requirements of running the outlets have the same requirements and legal compliances as a Refectory and restaurant, only the product differs.

I am seeking additional compensation for a non-genuine redundancy.

The downsizing of the organisation is transitional; the University have stated Subway, Blue Duck and a purpose built Tavern will be managed by FCCS in the new student hub upon completion.

I object that the cafes operate independently as all operational costs and commercial outcomes are governed as a whole due to decisions made on product, suppliers and staff. Supervisors have not been empowered or trained to manage product range, costings, budget planning, contractors or wider university protocols in dealing with compliance issues regarding liquor licensing and health department representatives.

I object to the statement that these tasks were not undertaken by me the applicant. All outlets were undertaken by me and accountability for these outlets was my responsibility.

(4) I disagree as the respondent has not achieved the skill level in the food act or the liquor licensing act. The Respondent has not completed a food and safety course. I have had 40 years of updated skill levels that would be a loss of skill to the company.

(5) In consideration for top heavy management FCCS have not taken into consideration with the down size that the company is still employing two accountants being the General Manager and the Business Manager, the HR Manager, two cash clerks, payroll officer, accounts officer and an activities officer. In addition to the two non performing areas of FCCS are Retail and Sports Centre with no change to the management structure.”

[23] The information before me does not enable a definitive conclusion about the redundancy issue, which I consider must be addressed through a separate proceeding but it does raise some serious questions about Mr Badenoch’s capacity to successfully pursue his application. If the termination of Mr Badenoch’s employment was a case of genuine redundancy it cannot be unfair. Section 389 defines a genuine redundancy in the following terms:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[24] To the extent that Mr Badenoch says that the termination of his employment was not due to operational requirements, the advice provided by Flinders One indicates that this was not the case. The Fair Work Commission is not required to assess whether a particular organisational restructure was in fact the optimal approach or whether there were better alternatives. The Fair Work Commission has long adopted the position that this definition of redundancy recognises that a given job may be divided amongst other existing employees.

[25] The obligation to consult about the redundancy will depend upon the provisions of the relevant modern award or enterprise agreement that applied to Mr Badenoch’s employment. Additionally, I note that the parties are in dispute over the extent of the consultation that was undertaken.

[26] In terms of s.389(2) Mr Badenoch does not appear to assert that redeployment would have been reasonable in these circumstances, but again, this will depend on the evidence to be provided.

[27] I have concluded that Mr Badenoch should carefully consider the extent to which, given the provisions of s.389, he seeks to continue to pursue this application. Nevertheless I have not reached any definite conclusion about the genuine redundancy issue on the material before me.

[28] Considerations of fairness relative to persons in similar circumstances to Mr Badenoch support an extension of time.

Conclusion

[29] For the reasons I have set out above, Mr Badenoch’s circumstances support an extension of time. Leaving aside the genuine redundancy issue, which I consider is to be addressed through a separate proceeding, these circumstances can be regarded as exceptional for the purposes of s.394(3). An Order (PR557892) reflecting this decision will be issued. The application has been listed for more detailed consideration of the genuine redundancy issue.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

P Badenoch on his own behalf.

A Nairn on behalf of the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

November 17.

 1   Form F2, para 1.4

 2   Applicant Submission dated 7 November 2014, page 1, paras 3 - 8

 3   [2011] FWAFB 975

 4   Form F2, para 3.2

 5   Applicant Submission dated 7 November 2014, page 2, paras 4 - 11

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