Phil Marsom v Australian Natural Milk Association T/A Anma

[2018] FWC 7866

[2018] FWC 7866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phil Marsom
v
Australian Natural Milk Association T/A ANMA
(U2018/9374)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 DECEMBER 2018

Application for an unfair dismissal remedy – application not made in accordance with the Fair Work Act 2009 (Cth) – irregularity in the application waived.

[1] On 11 September 2018, Mr Phil Marsom made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his Form F2 – Unfair Dismissal Application (Form F2), Mr Marsom alleged that Australian Natural Milk Association T/A ANMA (ANMA) notified him of his dismissal on 10 September 2018 and that it took effect the same day.

[2] ANMA filed its Form F3 – Employer Response to Unfair Dismissal Application (Form F3) on 1 October 2018, which objected to Mr Marsom’s application on the grounds that the dismissal was a case of genuine redundancy and was consistent with the Small Business Fair Dismissal Code. Furthermore, while ANMA did not dispute that Mr Marsom was notified of his dismissal on 10 September 2018, it asserted at Question 1.4 for the Form F3 that the dismissal did not take effect until 14 September 2018.

[3] The matter was referred to conciliation on 9 October 2018 but did not resolve.

[4] On 24 October 2018, the Commission sent correspondence to the parties referring them to the decision of the Full Bench of the Commission in Mihajlovic v Lifeline Macarthur 1(Mihajlovic) as authority for the proposition that the Commission has discretion to amend the application pursuant to s.586(b) of the Act in “circumstances where an application has been filed before a dismissal has taken effect”. As such, the parties were directed to file and serve statements, submissions and any other relevant material in support of the date upon which they say the termination of Mr Marsom’s employment took effect; and submissions as to whether or not the discretion in s.586(b) of the Act should be exercised to waive the irregularity in the manner in which the application was made in the event the Commission finds that the termination of Mr Marsom’s employment took effect after 11 September 2018 (that is, the date the application was lodged).

Submissions of Mr Marsom

[5] Mr Marsom filed submissions contending that on 10 September 2018, he was notified by ANMA that his role had been made redundant with no offer of alternative employment or redeployment, and no redistribution of duties. As such, Mr Marsom submits that he understood that ANMA intended to terminate his employment effective immediately. He further contends that it was always the intent of ANMA to end his employment on 10 September 2018.

[6] Mr Marsom says that prior to the meeting on 10 September 2018, ANMA had not discussed any options with him about moving forward to demonstrate due process. He also contends that ANMA did not provide any evidence that it was undergoing a restructure and further, it did not make any alternative offers to him. Moreover, Mr Marsom asserts that ANMA delayed the termination paperwork and date “in an attempt to demonstrate to others that they were attempting to display due process.”

[7] Mr Marsom otherwise submits that the termination date as submitted by ANMA is not applicable and is incorrect, and therefore it should not hinder the progress of his unfair dismissal application.

Submissions of ANMA

[8] ANMA filed the following documents to support its assertion that Mr Marsom’s employment ended on 14 September 2018:

•  Letter to Mr Marsom dated 10 September 2018 referring to the meeting conducted with him earlier that day and confirming that it was presently considering a restructure of the area in which Mr Marsom worked due to a financial downturn and that it considered making Mr Marsom’s role as Production Manager redundant. The letter also invited Mr Marsom to attend a meeting the next day to discuss the potential redundancy;

•  Letter to Mr Marsom dated 11 September 2018 inviting him to a meeting on 12 September 2018, given that he was absent due to personal leave and therefore unable to attend the meeting initially scheduled that day. The letter also offered to send Mr Marsom a brief in writing and foreshadowed that it may consider his response in writing;

•  Letter to Mr Marsom dated 11 September 2018 confirming that as they had not heard back from him in relation to rescheduling the meeting to 12 September 2018, the meeting was rescheduled to 13 September 2018 to enable him more preparation time. The letter also indicated that if Mr Marsom did not attend the meeting or did not provide any written feedback, ANMA would need to make a decision on the next steps;

•  Letter to Mr Marsom dated 13 September 2018, confirming that Mr Marsom did not attend any of the consultation meetings scheduled and that no response had been received. The letter indicated that this was Mr Marsom’s final opportunity to provide any suggestions he had to avoid redundancy or if there were other matters he would like to raise with ANMA in relation to its proposal by no later than close of business that day; and

•  Letter dated 14 September 2018 confirming Mr Marsom’s redundancy effective 14 September 2018.

[9] ANMA’s material contends that Mr Marsom was not dismissed on 10 September 2018. It instead alleges that a meeting to discuss the potential redundancy risk was held on this day, and that a follow up consultation meeting was to be held in order to seek from Mr Marsom his feedback on avoiding the risk.

[10] ANMA says that Mr Marsom’s unfair dismissal application was lodged at 10:40am on 11 September 2018, when the first consultation meeting was scheduled that morning to discuss any suggestions to avoid the redundancy risk and any possible redeployment opportunities. It further contends that Mr Marsom had sent a message at 8:21am that morning to apply for personal leave, indicating that he knew he had not been terminated on 11 September 2018.

[11] With regard to whether the Commission should exercise its discretion pursuant to s.586(b) of the Act, ANMA contends that its dismissal procedure was consistent with the Small Business Fair Dismissal Code. ANMA further submits that it engaged an employment relations specialist from Employsure to discuss with Mr Marsom the potential redundancy on 10 September 2018 and to conduct a subsequent consultation meeting. As Mr Marsom did not attend the consultation meeting, ANMA submits that it confirmed his redundancy on 14 September 2018 after considering that there were no vacancies or redeployment opportunities within the business.

Consideration

[12] The validity of unfair dismissal applications filed on a date before the dismissal has taken effect was considered by the Full Bench in Mihajlovic, where it said:

“Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).” 2

[13] In Mihajlovic, the Full Bench remitted the matter back to Vice President Hatcher to determine whether the discretion in s.586(b) of the Act should be exercised. 3 In subsequently exercising his discretion to waive the irregularity, the Vice President stated:

“[6] The practical position in the matter before me is that there is no doubt that Mr Mihajlovic is, and has been since 5 September 2013, a person who has been dismissed within the meaning of that expression in s.386 of the Act. The Commission therefore has, subject to any separate jurisdictional objection, jurisdiction to entertain his claim for an unfair dismissal remedy. There is no suggestion that the fact the application was filed prematurely has caused any prejudice to the respondent. It has necessarily been on notice at all times since his dismissal took effect that Mr Mihajlovic contested his dismissal and sought an unfair dismissal remedy. This is not a situation whereby “exceptional circumstances” have to be demonstrated in order for a waiver to be granted, by contrast to an extension of time application under s.394(3). Prima facie, there is a strong case for the waiver to be granted.

…

[8]I am not prepared to conclude that his application is without merit. Its grounds are not confined to the issue of the payment of statutory entitlements; he contends for example that there was no valid reason for his dismissal and that he was (in substance) denied procedural fairness.” 4

[14] I intend to have regard to similar considerations in determining whether to exercise my discretion to waive the irregularity in the manner in which Mr Marsom’s application was made.

[15] In the circumstances of this case, there is a dispute between the parties as to when Mr Marsom was notified of his dismissal. Mr Marsom submits that he was notified of the dismissal on 10 September 2018 and that it took effect immediately on the same day, while ANMA asserts that it did not confirm that Mr Marsom’s role had been made redundant until 14 September 2018.

[16] Mr Marsom says no offer of alternative employment or for a redistribution of duties was made at the meeting on 10 September 2018. He submits this indicates it was the intention of ANMA to terminate his employment with immediate effect.

[17] The letter of ANMA to Mr Marsom dated 10 September 2018 describes the meeting that had occurred that day as ‘informal’ and one in which there was discussion about the restructure of Mr Marsom’s work area being under consideration due to financial circumstances, changes in the industry and export issues. This letter stated that ANMA was considering making Mr Marsom’s role as production manager redundant and flagged a further meeting to discuss the potential redundancy, suggestions to avoid this and any other matters Mr Marsom wished to raise. It further made reference to a final decision not yet having been made. This letter was signed by Mr David Li, who was described as a Director.

[18] ANMA has claimed that Mr Marsom called in sick on 11 September 2018, which resulted in its planned consultation meeting for that day having to be postponed. Mr Marsom’s unfair dismissal application was lodged at 10.40am on 11 September 2018. Mr Marsom has replied by stating “there is no requirement to provide evidence” of the claim for sick pay “as the award says there is 3 days allowable without doctors certificate. In fact there is evidence but this was never requested by ANMA.” He does not appear to have denied calling in sick that day.

[19] Mr Marsom also says that he was given only one day to organise representation or a response and this was not enough time. This is consistent with his position that ANMA had outlined a process to mask a redundancy that was not genuine.

[20] These two factors suggest that the employment may not have been terminated on 10 September 2018, as has been claimed. However, it is clear from his material that Mr Marsom certainly regarded his termination as a fait accompli as a result of the meeting on 10 September 2018.

[21] This is a case therefore in which it would seem Mr Marsom has confused what may have been a proposal to discuss a potential redundancy, for a situation in which what was conveyed was a final decision as to redundancy, even if Mr Marsom’s apparent claim for sick leave on 11 September 2018 makes little sense.

[22] As to the merits of the application, Mr Marsom has filed material which addresses the genuineness of his redundancy, the reason given by ANMA for his termination. I am not prepared to conclude, based on the material currently at hand, that Mr Marsom’s application is without merit.

[23] Finally, I note there is no suggestion by ANMA that Mr Marsom’s filing of his unfair dismissal application three days early has caused it any prejudice. I have had regard to the fact that ANMA has been on notice since the application was filed and am not persuaded that it would suffer an injustice if the application was to proceed. In considering Mr Marsom’s position, I have been guided by the consideration outlined by Vice President Hatcher in Mihajlovic:

“If I were to dismiss Mr Mihajlovic’s current application, he would be compelled to make an application under s.394(3) of the Act for a further period in which to file the same application a second time. Such an application would undoubtedly be opposed by the respondent, and might well not succeed given the necessity to demonstrate exceptional circumstances. Further proceedings involving effort, inconvenience and cost to both parties would be necessary, and might result in a significant injustice being done to Mr Mihajlovic, for no discernible public policy reason. I consider this would be a perverse outcome, and that the discretion in s.586(b) should be exercised in Mr Mihajlovic’s favour.” 5

[24] In all of the circumstances of this finely balanced application, I consider the discretion in s.586(b) of the Act should be exercised in Mr Marsom’s favour. I consider Mr Marsom was convinced he was made redundant at the meeting on 10 September 2018 and that nothing was going to change in that respect. His actions after that meeting should, in my view, be considered in that light.

[25] Pursuant to s.586(b) of the Act, I waive the irregularity in the manner in which Mr Marsom made his application for an unfair dismissal remedy. The matter will now be referred for further programming for its further disposition.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2014] FWCFB 1070.

 2   [2014] FWCFB 1070 at [42].

 3 Ibid at [44].

 4   [2014] FWC 1871.

 5 Ibid at [9].