Russell Vilsten v Southern Cross Care (Vic)

[2016] FWC 4551

[2016] FWC 4551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Russell Vilsten
v
Southern Cross Care (Vic)
(U2016/7300)

COMMISSIONER WILSON MELBOURNE, 7 JULY 2016

Application for relief from unfair dismissal; whether extension of time should be granted for lodgement of application.

[1] This matter concerns an application made by Russell Vilsten alleging unfair dismissal against his former employer, Southern Cross Care (Vic). Mr Vilsten’s application was received in the Fair Work Commission on 30 May 2016 and discloses that the date upon which his dismissal took effect was 14 August 2015. That date is verified by the Employment Separation Certificate attached to Mr Vilsten’s application.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 269 days out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Mr Vilsten for the making of his application, and, for the reasons set out below, I am not satisfied that a further period should be allowed to him for the making of his application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The Respondent, Southern Cross Care (Vic), objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Russell Vilsten, the Applicant, and Kaylene Downey, the Respondent’s Employee Relations Manager.

[7] Ms Downey replaced another potential witness for the Respondent, Danielle Rose, the Executive Manager of Workforce and Culture, who was ill and therefore unable to give oral evidence. This is mentioned only for the reason that Ms Downey then “adopted” Ms Rose’s already prepared witness statement, so far as it is possible to do so, given that her employment with the Respondent only commenced after Mr Vilsten’s dismissal. Ms Downey also gave oral evidence of her direct knowledge, which I have taken into account.

[8] Mr Vilsten also provided a witness statement prepared by Brendan Foley, formerly Executive Manager Business and Finance with the Respondent, who was not required for cross-examination by Southern Cross Care (Vic). I have had regard to all of this material.

BACKGROUND

[9] Russell Vilsten was employed by Southern Cross Care (Vic) on 5 August 2013 in the position of Contracts and Strategic Sourcing Manager, and continued in that position for about two years. The parties agree that Mr Vilsten’s employment was not covered by a modern award or an enterprise agreement. 3

[10] On Tuesday, 4 August 2015 Mr Vilsten was notified by Southern Cross Care (Vic) of its decision to terminate his employment, with the given reason being that the organisation has “determined that your current role of Contracts and Strategic Sourcing Manager is no longer required to meet our ongoing organisational needs”. 4

[11] Southern Cross Care (Vic) considered at the time that Mr Vilsten’s termination of employment was for reason of genuine redundancy, and has maintained that view since. Ms Rose’s statement to the Commission, attested to by Ms Downey, includes that the organisation undertook a strategic staffing review in 2014/15 and that Mr Vilsten’s position was one of a number affected by the review. 5 This evidence about the organisation’s decision making included that:

“The Applicant's position was one of a number of positions affected in this review. Around the same time as the Applicant's dismissal, another employee's position was declared redundant, another employee was redeployed to a different position, and a number of vacancies at the central office were deliberately left unfilled.” 6

[12] Mr Vilsten was given three weeks’ notice of termination of his service, which included one additional week based upon him being over 45 years of age. Mr Vilsten worked for a short period after being given notice of termination and ended his employment with Southern Cross Care (Vic) on Friday, 14 August 2015. That date is referred to on an Employment Separation Certificate as the date on which employment ceased, and I find it to be the date on which his dismissal took effect.

[13] The letter of termination given by Southern Cross Care (Vic) to Mr Vilsten advised him that he would be entitled to 6 weeks redundancy pay.

[14] Mr Vilsten commenced an unfair dismissal application against Southern Cross Care (Vic) with his application being received in the Fair Work Commission on Monday, 30 May 2016.

[15] The reason given by Mr Vilsten for his late application is that it was only within the two weeks prior to 30 May 2016 that he learned a procurement specialist at Southern Cross Care (Vic), who had previously been reporting to him, had been promoted. He considered that promotion to undermine the reasons given to him for his dismissal, which characterised his termination of employment as a genuine redundancy. He lodged his unfair dismissal application several days after becoming aware of this information. Included within Mr Vilsten’s evidence is an assertion that the new position is nearly identical to the one he held. 7

[16] For its part, Southern Cross Care (Vic) dispute that any new position has taken over the position Mr Vilsten held. In this regard, Ms Downey’s evidence was that “[t]he position of Contracts and Strategic Sourcing Manager has not been replaced by any other employee of SCC (Vic)”. 8 Further, her evidence is that the current procurement specialist is a person who was also employed when Mr Vilsten worked for the Respondent, and that the person’s title was changed in April 2016 following acquisition of four additional aged care facilities. Ms Downey gave further evidence that the person concerned continues to work part-time and that there has been no increase in the number of employees in the procurement team. The organisation’s Employer Response Form include the assertions that;

“2. Discrete tasks performed by the Applicant in his position as Manager Contracts and Strategic Sourcing that continued to be required were reallocated to other existing positions. The Applicant's position of Manager Contracts Strategic Sourcing no longer exists, and no other position the same, or substantially the same as Manager Contracts and Strategic Sourcing has been created within the Respondent's business.

3. The position of Procurement Specialist has existed since 1 May 2006. To reflect some of the additional responsibilities that the incumbent of this position had assumed during and following a significant acquisition by the Respondent throughout January to April 2016, the title of the position was changed to Procurement and Contracts Manager in April 2016. The position continues to be a part time position and continues to be held by the same employee.” 9

[17] Ms Downey’s evidence is that the person affected by this change had her job title upgraded and was given a substantial pay rise in 2016 because, of all the members in the team in which she worked, she was the only one to take on additional responsibilities during the period in which Southern Cross Care (Vic) took on four additional aged care facilities. The person concerned had demonstrated this commitment to additional responsibility over a period of four months and the organisation agreed that she should be rewarded for “stepping up”. She was, and continued to be, a part-time employee who stood out as someone to take on additional responsibilities and the organisation considered she should be rewarded for that attribute.

[18] In relation to the statement submitted on behalf of the Applicant from Mr Foley, Southern Cross Care notes that his employment with the organisation finished in January 2016. 10

CONSIDERATION

[19] For the purposes of s.396 of the Act, Mr Vilsten is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances. If the application proceeded, the question of whether his dismissal was a genuine redundancy within the meaning of s.389 of the Act would require determination.

[20] In considering whether an extension of time should be granted to Mr Vilsten, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[21] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 11 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.12 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.13

[22] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Mr Vilsten to lodge his application. In all, that period was a total of 269 days.

[23] The reason Mr Vilsten puts forward for his application being late is the belief formed only in mid-May 2016, 9 months after being notified of the termination of his employment, that he had been dismissed for a reason other than genuine redundancy. No other reason is put forward by Mr Vilsten for the delay in making his application.

[24] While Mr Vilsten is able to demonstrate that he moved quickly to make an unfair dismissal application after learning the information upon which he bases his explanation, the fact remains that he did not consider making a challenge to his dismissal until receiving that information, about 2 weeks prior to making the application. The information received by him includes finding out that a person who once reported to him had been recently promoted. He had also received information that the organisation had, in February 2016, discussed at its Executive Management Team meeting whether the then operating Contracts Manager role was meeting its requirements, with it then deciding on duties for the ongoing role and considering that the allocation of duties and responsibilities would be reviewed.

[25] For the Commission to be satisfied that a reason is an acceptable one, in a case such as this, where the reason for the delay is an employee’s changed view about the true characterisation of events many months previously, the Commission would need to be satisfied that a reasonable person would come to the same conclusion – that Southern Cross Care (Vic) had likely misrepresented to him its reasons for dismissal given in August 2015. Further, it depends on a finding that the Respondent had not acted in good faith at the time, and that such could not reasonably have been known to the Applicant earlier than when he commenced his unfair dismissal action.

[26] The information received by Mr Vilsten may have caused him to question what had happened, and it obviously did, however nothing that he has provided to the Commission would so far convincingly show that the reasons for dismissal were misrepresented to him. He plainly did not think that at the time, and what he has brought forward now would be unlikely to rise to that level.

[27] Looking at the circumstances objectively, the Applicant likely knew when he left employment that the existing team members would carry on many, if not most, of the tasks that had been routinely done by the procurement team in the past. He also likely knew that at least some of the tasks he performed would be undertaken by others. While he may have disliked the Respondent’s decision-making or reasoning, none of that was likely to change the Respondent’s decision insofar as it no longer required his job to be performed by anyone. Such, of course, may still be a redundancy. Reallocation of duties in good faith has been held to be a redundancy. 14 The Respondent’s case about its changed circumstances since August 2015 appears plausible, with the acquisition of four additional aged care facilities. Objectively, the disinterested observer is unlikely to view the situation as amounting to one so lacking in good faith on the part of Southern Cross Care (Vic) as to demand a previously settled termination be reopened for consideration in mid-2016.

[28] As a result of these circumstances, I do not consider an acceptable reason has been put forward for Mr Vilsten’s delay in making an unfair dismissal application. Accordingly, this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.

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

[29] On the basis of the evidence before me, I am satisfied that Mr Vilsten first became aware of his proposed termination of employment when he was notified of it on 4 August 2015. This is therefore not a circumstance where he only became aware of his dismissal at some point after the time that it took effect. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[30] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 15

[31] Other than commencing this action, Mr Vilsten has taken no other action to dispute his dismissal. In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

4. Prejudice to the employer (including prejudice caused by the delay)

[32] The delay in the filing of the application is 269 days. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 16

[33] The Respondent submits greater than usual prejudice will arise to it if the action continues for reason of the lengthy delay. That prejudice includes, it is said, the fact that the former Chief Executive Officer, who was the key decision-maker in the decision to terminate Mr Vilsten’s employment, has now retired from the organisation. While that is advanced, it is not explained why her retirement, in and of itself, may create additional prejudice to the Respondent. Presumably a retired Chief Executive would still be available for the purposes of giving evidence should the need arise.

[34] Even so, while there has been prejudice and disruption to the employer already with these proceedings, I consider there is likely to be further prejudice if I were to grant the extension of time. This is for the reason of the lengthy delay, and the likely effect that delay would have on the evidence the Respondent could bring forward to rebut the contentions made by Mr Vilsten.

[35] In relation to this matter, my consideration of this criterion is that it resolves against the Applicant, for reason of the lengthy delay in making the application.

5. The merits of the application

[36] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[37] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 17

[38] As indicated above, the Applicant’s case is that his dismissal was not a genuine redundancy. His case in that regard is that by creating a Procurement Manager position the organisation has shown that what occurred to him in 2015 was something other than a termination for reason of redundancy. In order to be successful such proposition rests on findings by the Commission that the Respondent’s representations to Mr Vilsten in 2015 of his dismissal being for reason of genuine redundancy were not made in good faith and that, at the time of his dismissal, it was not the case that it no longer required his job to be performed by anyone, and that such is demonstrated by decisions made by the Respondent more than 6 months after Mr Vilsten left the organisation.

[39] The Applicant submitted that the fact Southern Cross Care (Vic) was tendering to run additional facilities when it made him redundant was a reason for it be found that his redundancy was not genuine. However, the fact that a tender was ongoing at the time of dismissal does not change the likelihood that a full inquiry into the circumstances of the dismissal would find in favour of the Respondent’s contention that it no longer required his job to be performed by anyone for the reason that the tender had yet to be concluded. Because the tender had not been concluded and the outcome was speculative, the Commission’s inquiry would, of necessity, be limited to the requirements of the employer at the time it made its decision.

[40] After consideration of all the material submitted by Mr Vilsten, I do not regard his case to have greater than low prospects of success if it were to continue.

[41] Accordingly, it is my view that consideration of this criterion resolves in the Respondent’s favour.

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

[42] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 18 I consider that general principles of fairness in the circumstances of Mr Vilsten’s case would resolve in favour of the Respondent being able to regard an otherwise settled dismissal as not being the subject of further challenge, especially in the absence of good prospects of it being found that the Respondent had not acted in good faith at the relevant time.

[43] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making his unfair dismissal application, I am not satisfied that there are exceptional circumstances that would warrant allowing a further period for Mr Vilsten for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Mr Vilsten’s case but also to the criteria set out within s.394(3) of the Act.

[44] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Fair Work Act and will issue an order dismissing Mr Vilsten’s application as being out of time.

COMMISSIONER

Appearances:

Mr R Vilsten on his own behalf.

Ms A Forsyth (of Counsel), instructed by K & L Gates for the Respondent.

Hearing details:

2016.

Melbourne:

24 June.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9].

 3   Form F3 - Employer Response Form, item 3.2.

 4   Form F2 - Unfair Dismissal Application Form, Attachment 1.

 5   Exhibit R1, Witness Statement of Danielle Rose, adopted by Kaylene Downey, [7].

 6 Ibid [8].

 7   Exhibit A1, Applicant’s Outline of Submissions, [7].

 8 Exhibit R1 [11].

 9   Form F3, item 3.2.

 10 Exhibit R1 [13].

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 12   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 13   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 14   Dibb v Commissioner of Taxation [2004] FCAFC 126, 136 FCR 388, at [43].

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 16   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 17   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 18   Wilson v Woolworths [2010] FWA 2480, at [24]‒[29].

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