Phillip Bayley v Asciano Services Pty Ltd T/A Pacific National Bulk

[2015] FWC 7783

[2015] FWC 7783 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Bayley
v
Asciano Services Pty Ltd T/A Pacific National Bulk
(U2015/11735)

COMMISSIONER JOHNS MELBOURNE, 18 NOVEMBER 2015

Application for relief from unfair dismissal - whether to extend time for lodging the application.

[1] On 17 November 2015 the Fair Work Commission (Commission) conducted a jurisdictional hearing about an extension of time application made by Mr Phillip Bayley. At the conclusion of those proceedings the Commission, as presently constituted, refused the application and dismissed the applicant’s unfair dismissal application. These are the reasons for that decision.

[2] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for lodgement in exceptional circumstances.2

[3] Mr Bayley (applicant) made an application for a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 9 September 2015, that being 54 days after his employment was terminated by Asciano Services Pty Ltd (respondent) on 17 July 2015.

The jurisdictional objection

[4] On 23 September 2015 the Commission issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection.
[5] On 8 October 2015 the applicant’s representative, the Australian Rail, Tram and Bus Industry Union (“the Union”), filed a submission and witness statement on his behalf. In short it was asserted on behalf of the applicant that:

a) the applicant was originally quite happy with the forced redundancy;

b) the applicant was not aware of the Fair Work Commission rules;

c) however, the applicant then decided, on or about 8 September 2015, that he wanted the Union to pursue a claim for Unfair Dismissal by lodging this application; and

d) he did this because on 15 August 2015 he noticed an advertisement for his old job.

[6] On 23 October 2015 the respondent filed its submissions in relation to the applicant’s application for an extension of time. In short, the respondent submitted that:

a) not knowing the rules of the Commission as to the time limits is not to be regarded as exceptional circumstances; and

b) there is no explanation for the delay between apparently seeing the advertisements on 15 August and lodging this Application on 9 September 2015, a period of a further 25 days.

[7] The jurisdictional hearing was heard on Tuesday, 17 November 2015. At the hearing the applicant was represented by the Union’s Freight Organiser – Locomotive Division, Kevin Pryor. The respondent was represented by Elizabeth Ferrier, its General Manager for Industrial Relations. The applicant gave evidence on his own behalf and was cross-examined. The applicant was not made available for cross examination and both Mr Pryor and Ms Ferrier agreed that the Commission should decide the matter based on the material which had already been filed and served.

Legislative scheme

[8] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[9] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  4

Facts leading up to and relating to the dismissal

[10] On 29 May 2015 the respondent announced that redundancies would be required across each of its Parkes, Cootamundra and Port Kembla Depots.

[11] The applicant was employed at the Parkes Depot.

[12] During a process of consultation with employees and the Union, voluntary redundancies and transfers to other Depots of the respondent designed to mitigate the need for involuntary redundancies were sought by the respondent.

[13] The applicant did not apply for voluntary redundancy nor the available positions at the Moss Vale and Enfield Depots.

[14] Not all of the available positions at the Moss Vale and Enfield Depots of the respondent were filled by the time the consultation period with the Union and employees expired on 14 June 2015.

[15] During the approximately two-week period after being informed of their selection for involuntary redundancy on 3 July 2015 and termination of their employment, there was a further redeployment process made available to the applicant.

[16] The applicant’s employment was terminated on 17 July 2015.

Consideration

Paragraph 394(3)(a) - The reason for the delay

[17] It is undisputable that there were 54 days between when the termination of the applicant’s employment took effect and when this application was filed with the Commission.

[18] The applicant says the reason for the delay were:

a) The applicant was originally quite happy with the forced redundancy;

b) The applicant was not aware of the 21 day time limit;

c) The applicant heard that new employees were filling his old position.

d) The applicant then decided to apply for an unfair dismissal remedy.

[19] Mr Bayley’s difficulties are not out of the ordinary, unusual or uncommon. Ignorance of the 21 day time limit has long been held not to be an exceptional circumstance.

[20] It is, however obvious in cases that an applicant may not become aware of the non-genuine nature of their redundancy until some time after their dismissal when they later discover that, in their view, someone took over their previous position. This is usually an exceptional circumstance.

[21] However, in Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426 a Full Bench of this Commission held that “[37] An applicant needs to provide a credible reason for the whole of the period that the application was delayed”. In the present matter the applicant failed to explain the whole of the period of the delay; in particular, the period between when he says he saw his ‘old job’ advertised on 15 August 2015 and when he filed the present application on 9 September 2015.

[22] This factor weighed against granting the applicant a further period to lodge his unfair dismissal application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[23] It is uncontested that the applicant first became aware of the dismissal on 17 July 2015. While the applicant submitted that he was ‘confused about why [he] was made forced redundant’ I accept the applicant knew his employment had ceased from 17 July 2015, particularly in circumstances where the applicant re-applied for employment with the respondent.

[24] This factor weighed against granting the application a further period to lodge his unfair dismissal application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[25] The applicant disputed his dismissal by lodging this application, albeit late.

[26] This factor weighed against granting the application a further period to lodge his unfair dismissal application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[27] In the respondent’s initial submissions concerning the application for an extension of time that the respondents stated that:

a) The Union submits that there is no prejudice to the Respondent, on the basis that Asciano Services has ‘an extensive human resources department and legal department at their disposal.’

b) The Respondent submited that extending the timeframe for lodgement would be prejudicial to the Respondent. In particular, the Respondent asserted that it had recently completed and filed the evidence in the related matters arising from the same factual circumstances. The Respondent completed this undertaking on the basis of directions issued by the Commission for the determination of those matters. The Respondent submitted that should the matters under current consideration be permitted to proceed, the Respondent will need to re-visit evidence and submissions, causing unnecessary additional costs by having to meet with witnesses again and take further evidence.

c) The Respondent also noted that a mere absence of prejudice is not sufficient to justify time being extended.

[28] For present purposes, I treated any prejudice to the employer as a neutral factor.

Paragraph 394(3)(e) - The merits of the application

[29] In the matter of Kornicki v Telstra-Network Technology Group 5the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6

[30] The Commission, as presently constituted, adopted this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[31] The substantive factual contest between the applicant and the respondent is whether Mr Bayley’s dismissal was a case of genuine redundancy. This is not a factual dispute that can be resolved at a jurisdictional hearing.

[32] It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[33] For present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance.

[34] If the applicant can establish to the satisfaction of the Commission that his dismissal was not a case of genuine redundancy then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the applicant’s employment was harsh, unjust or unreasonable.

[35] Because the applicant’s case is not without merit or lacking in any substance this factor weighed in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[36] This matter was commenced in the context of a number of other applications brought by other former employees of the respondent. All of those other former employees commenced their applications and kept them on foot. There was no issue of fairness in relation to any other person in a similar position.

Conclusion

[37]For the reasons set out above, on balance, the Commission as presently constituted, in the exercise of its discretion, was not satisfied that there were exceptional circumstances warranting the applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application). An Order to this effect was issued on 17 November 2015.

COMMISSIONER

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3 [2011] 203 IR 1

 4 Above note at [13].

 5   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 6   Ibid.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573883>