Russell Ott v Climatech Act Pty Ltd

[2021] FWC 6377

[2021] FWC 6377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Russell Ott
v
Climatech ACT Pty Ltd
(U2021/9349)

DEPUTY PRESIDENT DEAN CANBERRA, 19 NOVEMBER 2021

Application for an unfair dismissal remedy – extension of time.

[1] This decision concerns an application by Russell Ott (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant had been employed by Climatech ACT Pty Ltd (the Respondent) from 4 November 2019 until his employment was terminated on 13 August 2021 for reason of redundancy.

[2] Section 394(2) of the Act requires that an application for an unfair dismissal remedy is made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The present application, made on 19 October 2021, was 46 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[3] The matter was listed for hearing by telephone on 18 November 2021. The Applicant was self-represented and the Respondent was represented, with permission, by Mr N Read of Counsel.

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2

[5] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

Reason for the delay

[8] The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[9] The Applicant explained the reason for the delay as being that he did not discover his redundancy was not genuine until he saw what he thought was his former position advertised on or about 13 October 2021. Until that time, he had accepted that his redundancy was genuine.

[10] The Respondent denied that it had advertised for a replacement for the Applicant.

[11] For the reasons set out later in this decision, I am satisfied that the Respondent did not advertise to replace the Applicant. However, in deciding whether there was an acceptable reason for the delay, I am satisfied that the Applicant genuinely believed the Respondent was seeking to replace him and therefore his redundancy was not genuine. He acted promptly after 13 October to lodge his application. As a result, I am satisfied that there is an acceptable reason for the delay.

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

[12] The Applicant was notified by letter of 6 August 2021 that his employment would be made redundant on 13 August 2021. I am therefore satisfied that the Applicant had the full 21 day period to lodge his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

[13] The Applicant did not take any action to dispute his dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[14] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[15] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.

[16] The Applicant gave evidence that after seeing a role in similar terms to his former role advertised by a recruiter, he contacted the recruiter to apply for the role. He said he was informed by the recruiter that the role was with the Respondent.

[17] Evidence was given on behalf of the Respondent by the recruiter, Mr Armstrong, and two employees of the Respondent, Mr Venables, the ACT Branch Manager, and Ms Johnson, the group HR Manager.

[18] The evidence of both employees of the Respondent was to the effect that they had not sought to replace the Applicant by recruiting a replacement for him, and that they had not engaged Mr Armstrong to recruit for them.

[19] In cross examination, Mr Armstrong gave evidence that the advertisement was not for any particular position or company. He explained that it is common practice in the recruitment industry to place ads that purported to be for a vacant position but was in fact nothing more than a process to “lure good candidates in”. He explained that “this is how we operate”. This, of course, was not known to the Applicant at the time he made his application.

[20] Putting aside my view on the somewhat questionable tactics of the recruiter, it seems clear based on the evidence that the Respondent was not responsible for the advertisement and was not seeking to replace the Applicant. While I do not need to form a concluded view on this matter, I consider that the evidence supports a view that the Applicant’s redundancy was genuine. The merits, therefore, are weak.

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

[21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[22] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[23] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

R Ott, on his own behalf.

N Read of Counsel for Climatech ACT Pty Ltd.

Hearing details:

2021.

Canberra (By telephone):

November 18.

Printed by authority of the Commonwealth Government Printer

<PR735903>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].