Sandra Elliott v Resene Paints (Australia) Ltd
[2022] FWC 3203
•5 DECEMBER 2022
| [2022] FWC 3203 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sandra Elliott
v
Resene Paints (Australia) Ltd
(U2022/7712)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 5 DECEMBER 2022 |
Application for an unfair dismissal remedy – Application for an unfair dismissal remedy – Application filed outside of time required in s. 394(2) – Whether a further period to make the application should be granted – No exceptional circumstances – Application dismissed.
Background
Ms Sandra Elliott (the Applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the FW Act) in respect of the termination of her employment by Resene Paints (Australia) Ltd (the Respondent), a paint manufacturer. The Applicant’s employment was terminated on the basis that her position was made redundant, and the termination took effect on 15 April 2022.
Section 394(2) of the FW Act provides that an unfair dismissal application must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s. 394(3). The 21-day period expired on 6 May 2022. The application was made on 21 July 2022 which is 76 days outside the required period. On 5 December 2022, I issued a decision dismissing the application.[1] These are my reasons for decision.
The FW Act allows the Commission to grant a further period within which to make an unfair dismissal application only if it is satisfied that there are “exceptional circumstances” taking into account matters set out in s. 394(3) of the FW Act. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves need not be unique or unprecedented, or even very rare.[2] Exceptional circumstances may include a single exceptional factor, 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.[3]
The requirement that there be exceptional circumstances before a further period can be granted under s. 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 – day period within which an application for approval of an enterprise agreement must be made, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
Section 394(3) requires that, in considering whether to grant a further period for an application to be made, 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.
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 the application.
After the application was filed in the Commission, the Chambers of Vice President Catanzariti corresponded with the Applicant on 10 August 2022 requesting that she provide reasons as to why an extension should be granted having regard to the matters in s. 394(2) of the FW Act. The matter was subsequently allocated to me for determination, and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted.
On 18 August 2022, the Applicant confirmed by email that all the information she sought to rely on had been provided in her application and in her response to the correspondence from the Chambers of Vice President Catanzariti. On 29 August 2022, the Respondent filed written submissions in response to the basis upon which a further period is sought by the Applicant.
A hearing was conducted by telephone on Wednesday, 7 September 2022. At the hearing, the Applicant was self-represented and gave evidence on her own behalf. The Respondent was represented by Mr Torben Olsen, the Respondent’s State Sales Manager for Queensland, who also gave evidence on behalf of the Respondent. Following the hearing, new submissions and additional material were received from the Applicant on 7 September 2022. As a result, I granted permission for the Respondent to provide a further response to the matters raised in the Applicant’s additional submissions and material. This was provided by the Respondent on 9 September 2022.
The Applicant contended that after the termination of her position – Key Retailer Account Manager – by way of a redundancy on 15 April 2022, she came across job advertisements on 20 July 2022 and 1 August 2022 in which the position of “Account Reseller Manager” was advertised by the Respondent. The Applicant was of the view that the position of “Account Reseller Manager” was the same as her former position with the Respondent. The Applicant’s contention is that the delay in filing the application was attributable to the fact that she “did not have evidence of [her] claim” that her termination was not a genuine redundancy until she saw the recruitment advertisement on 20 July 2022, and she filed her application in the Commission on 21 July 2022.
The Respondent’s response is that the Applicant’s termination was a genuine redundancy because the position previously held by the Applicant no longer exists. The duties associated with the Applicant’s previous role have been reallocated to Trade Account Managers. In relation to the job advertisements seen by the applicant, the Respondent states that notwithstanding the title of the position stated in the advertisements, the role advertised was not the same role as that formerly held by the Applicant and the fact that the recruitment was for a different role was apparent from the job description in the advertisements. The Respondent also states that when the job was originally advertised, it was erroneously titled “Account Reseller Manager” and was later changed to “Account Manager Trade”.
Evidence and Submissions
The Applicant’s employment with the Respondent commenced on 3 April 1991. The position held by the Applicant, which was made redundant on 15 April 2022, was Key Retailer Account Manager. The Applicant explained that a majority of Resene products are sold by independent resellers or retailers throughout Australia and her role involved servicing those resellers and retailers of Resene. A job description for the Applicant’s position was provided by the Applicant and is set out in full as follows:
“JOB TITLE: Key Retailer Account Manager
REPORTS TO: General Manager
DIVISION: Reseller Sales and Architectural Services – Resene
KEY PURPOSE: Responsible for building new and developing existing relationships with Resellers to increase sales and to further develop sales through general enquiries.
Co-ordinate Project Leads to Architectural Reps/Colour Consultant/Trade on a timely basis as permitted.
REPONSIBILITIES:
Strategic Management:
· Proactive Management and generation of client prospects
· Evaluate areas to establish Resene selling in the most suitable locations
· Development of strong new and existing business relationships to support future business and growth.
· Ensure Agreements or Arrangements are in place
· Develop and submission of tailored solution based proposals (detailing and becoming an approved supplier to the Paint Place Group and Paintright Group)
Sales Management
· Develop, manage and negotiate agreements with Resellers and proposed Resellers to produce measurable outcomes in terms of sales, profitability, margin and service levels.
· Increase value of sales to Resellers by a percentage annually, setting and delivering individual targets where applicable.
· In the short term assist Victoria with Resellers and Training of Staff in Reseller Stores.
· ITD Promotion where applicable?
Product Management
· Plan a set up cost for Resellers for Total Colour, Tint Machine, Shakers, Product Selection and Add-ons.
· Resellers initially only stock fast moving lines with a view to increase as sales increase. Stock to be tailored to Reseller requirements.
· Initiate and drive promotional events to promote products and at times a particular product or system.
· Ensure Resellers receive product on a timely basis when ordering and delivered in full on time.
· Promote the Resene Best System Selling in conjunction with Resellers as an ongoing programme to promote our strong technical backup with Resellers proven sales expertise. Training of Staff at Resellers
Technical Support:
· Provide Technical Support to Resellers and Promote Resene Best Systems Selling to Reseller Staff initially face to face on a regular basis to ensure Resellers and their Staff have a full understanding of the Resene Range of Products and the advantages/Points of Difference of Resene products.
· Spec Writing /Tech Spec from Reseller enquiries and general enquiries.
Architectural Services - Queensland (purely reporting to assist Architectural and assist to produce good time management for personnel in this Department)
· Information be recorded on all BCIs/Drawdowns/ICN gateway/and Colour Consults.
· Colour Consultation and Specification where applicable be given to the respective Architectural Rep by State (Initially Queensland) Information collated to Architectural Rep for follow up and feed back by way of summarising on a regular basis.
· Recording of Projects Specified (This could be up to five years out and could be set up in Calendar format to follow up with the Architectural Consultant or passed to Trade to begin co-ordinating to win the business wholly and solely.
· (Trade Rep to get involved at last stage as they need to concentrate on month to month actual budgeted figures for their area.
By a letter dated 25 March 2022, the Applicant was notified that, following a review by the Respondent of its reseller business in Australia, the Respondent proposed a restructure of its business. The proposed restructure included disestablishing the Key Retailer Account Manger position, reallocating part of the responsibilities to State Sales Managers in NSW and Victoria and creating a part-time position of “Reseller Relationship Manager Queensland & Northern NSW”, which is based in Queensland for three days a week and reports to the State Sales Manager for Queensland. A job description for the part-time position filed by the Applicant is as follows:
“Job Description – Reseller Relationship Manager Queensland & Northern NSW
Position: Reseller Relationship Manager
Role: Part Time Position – 3 days / week
Location: Molendinar, Queensland
Reports to: State Sales Manager, QueenslandPrimary Objective of Position: Resellers within the designated territory support the Resene brand and understand its premium market position through the proactive selling and appropriate promotion of the Resene product offer
…
Duties and Responsibilities:1. To act and represent the company in a professional and ethical manner.
2. Nurture existing and where appropriate develop new Reseller clients to support and promote the Resene brand within the defined territory of Queensland state and northern New South Wales from Lismore north.
3. Delivery of product training to ensure Reseller staff are confident to sell Resene product and understand its premium market position.
4. Resellers within the targeted territory met or exceed their sales budgets.
5. Presentation of the Resene brand within Resellers stores meet required Resene standards, including product presentation and placement, colour /product collateral, and appropriate Testpot support for store size/need.
6. Support Materials - Reseller's will have available up to date support materials (manuals, colour books, software etc.) to provide an appropriate information resource on Resene.
7. Support as appropriate Reseller's promotional activities involving Resene brand/ products.
8. Monthly reports to the Queensland State Sales Manager are completed and requests for information followed through promptly.
9. Support and assist the Queensland sales team events eg. Home Shows, Colour Evenings, or as requested by the Queensland State Sales Manager.
10. All customer enquiries and complaints are responded to in a timely and professional manner, in accordance with company procedures. Provide technical advice/expertise in product related claims or disputes as appropriate.
11. Ensure safe work practices and procedures for self.
12. Carry out all reasonable work instructions that may be given by the Queensland State Sales Manager.”
The Applicant was offered the new part-time position and invited to provide feedback on the proposed change. Alternatively, the Applicant was informed that, if she did not wish to take up the part-time position and there was no other option that would allow the Applicant to maintain ongoing employment with the Respondent, a redundancy package equating to 12 weeks of wages would be offered to the Applicant. If the Applicant decided to take the redundancy package, the Respondent would also compensate her for “all unused accrued leave (Annual & Long Service) together with 5 weeks in lieu of notice” where applicable.
On 26 March 2022, the Applicant wrote to the Respondent’s head office in New Zealand outlining her views that changing her full-time role to part-time would be detrimental to the business and that the Respondent should reconsider the proposed restructure in relation to her position. In that correspondence, the Applicant commented that she had made significant contribution to the business and that it would not be feasible to perform her role working only 3 days a week given her substantial work responsibilities. In this respect, the Applicant noted that:
· Her position was responsible for servicing reseller clients in a range of locations including Queensland, Tamworth and Cowra in Northern NSW, Unley and Renmark in South Australia and New Caledonia;
· She was often required to drive long distance to visit reseller clients in different places including Lismore and various locations on the Sunshine Coast;
· She had established business rapport with many reseller clients and was the first point of contact for any enquires from resellers; and
· The work she performed was critical to the success of the business.
Ultimately, the Respondent proceeded with the proposed restructure. The Applicant declined the part-time position as she considered that it was unfair and unreasonable for the Respondent to expect her to perform her full-time workload over 3 days and be remunerated on a part-time basis only. The Applicant accepted the redundancy package and by a letter dated 11 April 2022, the Applicant was notified that her employment was terminated on the ground of redundancy. The Applicant also noted that she had never accessed her long service leave in her 31-year career with the Respondent and that she received a pay-out for her unused long service leave in addition to her redundancy payment. The letter of termination of her employment states as follows:
“NOTICE OF TERMINATION OF EMPLOYMENT BECAUSE OF THE REDUNDACY OF YOUR POSITION
Dear Sandra,
Further to our recent meetings, we confirm that unfortunately your employment with the Company will terminate due to the redundancy of your role of Key Retail Account Manager.
As discussed, your position is no longer required as the duties of the role have been redistributed to other regional management roles and a newly created part-time position in Queensland. We confirm that you do not wish to take up an offer of a part-time role of Reseller Relationship Manager Queensland and Northern NSW.
The Company has considered all reasonable options for redeployment and regrets that there are no suitable alternative positions available for you.
This letter is to inform you that your employment will terminate on Friday, 15 April 2022. You are entitled to five weeks’ payment in lieu of notice. You are not required to work out your notice period.
You will be paid 12 weeks redundancy pay, your wages until Friday, 15 April 2022 and all outstanding and accrued annual and longs service leave entitlements. Please see the enclosed breakdown of the total of the severance payments, including the 5-weeks payment in lieu of notice, that will be paid to you. The payment will be done by way of overnight electronic funds transfer to your bank account on your last day of service.
We thank you for your contribution to the Company and wish you well for the future.”
On 20 July 2022, the Applicant said that, through a recruitment agency, she came across a job advertisement posted by the Respondent for the position of “Account Reseller Manager”. In the Applicant’s view, the position being advertised was the same as her former position. The Applicant tendered a screenshot of the advertisement which is set out below. The advertisement is also contained in material filed by the Applicant after the hearing:
“Account Reseller Manager
Scout Talent
Gold Coast
Sales • Account & Relationship Management
$70,000 - $80,000 + company vehicle and MORE! • Full time· Are you a driven professional with a background in the paint industry?
· Join a highly respected, family-owned business with an international reputation for quality & innovation!
· Attractive salary circa $70,000 - $80,000 PLUS super, a company vehicle, phone, laptop and MORE!
The paint the professionals use
Established in New Zealand almost 75 years ago, Resene has forged a strong reputation for excellence and quality, well-respected for innovative products and colour services.
We now have an exciting opportunity for an Account Reseller Manager to join us based on the Gold Coast (Ashmore)!
What you'll receive
This is a rare chance to join a well-respected leader in premium, high quality paints! A newly created role, you'll be well-supported but given the autonomy to use your sales skills to drive your success!
An attractive salary is on offer circa $70,000 - $80,000, negotiable based on your skills and
experience, plus super, a company vehicle, mobile phone and laptop.Your career development is important to us! You will be supported with ongoing training and upskilling along with the ability to progress within the company!
The Opportunity
Based out of the Ashmore office, the role will involve travel to clients throughout Brisbane and the Gold Coast. You may travel as far north as the Brisbane River and as far south as Ormeau.
This hands-on and action packed role will see you providing a high level of service to our existing, new applicator clients and reseller clients and increasing sales in the region by seeking out new business and on-going opportunities within the market place.
To learn more about this opportunity, click “Apply Now”!
About You
To be successful you will preferably have a background in a paint, colour or design-focused role with a demonstrated understanding of the paint industry. While not essential, prior experience in a sales role will be highly regarded.
It's crucial that you are personable and a strong negotiator, able to communicate effectively with a variety of stakeholders and forge connections across a range of industries. You must also be driven and enthusiastic, possessing resilience and always carrying a positive attitude.
You'll be highly computer literate and able to effectively manage competing deadlines and demands to ensure the successful delivery of a range of projects.”
On 1 August 2022, the Applicant stated that she checked on the recruitment website, SEEK, to see if the position was still being advertised. She discovered that the advertisement had been edited to include the position of “Account Manager – Trade” in the job description even though the title of the advertised position remained “Account Reseller Manager”.
Following the hearing conducted on 7 September 2022, the Applicant filed a copy of a job advertisement posted on SEEK by the Respondent on 11 August 2022 which the Applicant came across on 28 August 2022. The position being advertised was “Account Manager – Trade”. The Applicant stated that “this is a different job advertisement and not my job and therefore I have not previously included and is not relevant”. This particular job advertisement states as follows:
“Account Manager - Trade
Scout Talent
Ipswich, Brisbane QLD
Account & Relationship Management (Sales)
$70,000 - $80,000 + company vehicle and MORE! • Full timeThe paint the professionals use
Established in New Zealand almost 75 years ago, Resene has forged a strong reputation for excellence and quality, well-respected for innovative products and colour services.
We now have an exciting opportunity for an Account Manager - Trade to join our Queensland team. This crucial position will see the successful candidate responsible for a territory including southern Brisbane, Ormeau, Ipswich and Toowoomba. This role can be based at our Woolloongabba store with the need to attend meetings and training at Molendinar. Work from home options are also available.
What you’ll receive
This is a rare chance to join a well-respected leader in premium, high quality paints! A newly created role, you'll be well-supported but given the autonomy to use your sales skills to drive your success!
An attractive salary is on offer circa $70,000 - $80,000, negotiable based on your skills and
experience, plus super, a company vehicle, mobile phone and laptop.Your career development is important to us! You will be supported with ongoing training and upskilling along with the ability to progress within the company!
The Opportunity
Based out of the Woolloongabba store, the role will involve travel to clients throughout Brisbane, including far north as the Brisbane River and as far south as Ormeau and out to Toowoomba.
This hands-on and action packed role will see you providing a high level of service to our existing, new applicator clients and reseller clients and increasing sales in the region by seeking out new business and on-going opportunities within the market place.
To learn more about this opportunity, click “Apply Now”!
About You
To be successful you will preferably have a background in a paint, colour or design-focused role with a demonstrated understanding of the paint industry. While not essential, prior experience in a sales role will be highly regarded.
It’s crucial that you are personable and a strong negotiator, able to communicate effectively with a variety of stakeholders and forge connections across a range of industries. You must also be driven and enthusiastic, possessing resilience and always carrying a positive attitude.
You'll be highly computer literate and able to effectively manage competing deadlines and demands to ensure the successful delivery of a range of projects.”
The Respondent submitted that the confusion created by the multiple recruitment advertisements stemmed from the fact that it had used a Recruitment Agency to undertake the recruitment exercise and errors were made by the Agency with respect to those advertisements. According to the Respondent, the advertisement, which the Applicant saw on 20 July 2022, was incorrect in terms of the title of the position (being “Account Reseller Manager”) and the territory that the position is required to service. The position for which the Respondent was recruiting was “Account Manager – Trade”. In this respect, the Respondent submitted that this position was created because the Applicant had accepted a redundancy of her former full-time position and declined a part-time position offered by the Respondent. The part-time position was subsequently “split up and merged into the 3 Account Manager Trade roles.”
Mr Olsen gave evidence about a restructuring of the operation to rationalise servicing of trades and reseller clients. When the Applicant did not take the part-time role offered to her, Mr Olsen did the work and then decided to restructure in or around mid-July. Mr Olsen said that the difference between reseller clients and trade clients is that resellers are clients, who purchase Resene products and sell them in their own stores to retail customers or other professional customers. Trade customers may include professional painters or contractors, who purchase Resene products to perform work for their own customers.
In response to the further submissions made by the Applicant after the hearing, Mr Olsen said that, notwithstanding the error by the Agency with the job title, all the advertisements contain “the same job description”, which show that the job being advertised is not the Applicant’s former position in terms of responsibilities, salary or location, nor is it the same as the part-time position offered to the Applicant. Notwithstanding that there are three versions of the advertisement, Mr Olsen said that there was only 1 role that is being advertised and not 2 or 3 roles. Mr Olsen further stated that “the position advertised is with focus on Trade applicators and contractors with resellers added on to the three Trade Rep’s areas.”
Mr Olsen indicated that he became aware of the errors by the Recruitment Agency when he began receiving resumes in response to the advertisement and those candidates were not compatible with the position for which the Respondent was recruiting. Mr Olsen said he then contacted the Agency to rectify the mistake and consequently, an advertisement was posted on 11 August 2022 for the position of “Account Manager – Trade”.
In response to the Applicant’s contention that she was offered a part-time position but was expected to perform her full-time workload, Mr Olsen said that he was aware that the Applicant had corresponded with head office contending that switching her role to part-time was not viable. Mr Olsen said that after consideration the company “still agreed that the full-time position would be replaced with the part-time role due to the downturn in sales compared to the year before” as a result of the COVID-19 Pandemic and shipping issues.
In addition, the company considered that the Applicant’s full-time position was a national position, responsible for servicing 81 resellers nationally. The restructure redistributed the responsibilities for resellers in NSW and Victoria to the relevant State Managers, leaving only the Queensland resellers to be serviced. In the company’s view, the number of resellers that the full-time role was required to service was reduced by 52% and therefore the remaining Queensland resellers could be sufficiently looked after by a part-time position over 3 days per week.
At the hearing, the Applicant gave evidence that, in her former position as Key Retailer Account Manager, she had responsibilities for reseller accounts throughout Australia. She was also the person resellers would contact for any technical enquiries and was required to travelled regularly to visit resellers. The Applicant estimated that on average she used to drive 35,000km to 40,000km per year to visit resellers. However, due to the travel restrictions from COVID–19 and the company’s reallocation of responsibilities for resellers in NSW and Victoria to the relevant State Managers, the Applicant had taken “a step back” from servicing resellers in NSW and Victoria and had focused largely on resellers in Queensland. The Applicant accepted that she used to be responsible for 39 reseller accounts in Queensland.
With reference to the Applicant’s job description for Key Retailer Account Manager, I invited the Applicant to outline the similarities between her former position and the position being advertised, dated 1 August 2022. The Applicant said that, in that advertisement, the responsibility for “a territory including southern Brisbane, Ormeau, Ipswich and Toowoomba” covers similar areas to those for which she used to be responsible. She said that “providing a high level of service to our existing, new applicator clients and reseller clients…” encapsulates the duties she used to perform, including travelling long distance to visit resellers in their stores, providing assistance to them and answering any questions. She also stated that in her former role, she was required to have “a background in a paint, colour or design-focused role with a demonstrated understanding of the paint industry.”
In response to a question from me about the difference in salary as the Applicant was making $95,582 a year whereas the advertised position was for $70,000 to $80,000 a year, the Applicant said that this was because she had worked for the Respondent for 31 years whereas the position being advertised was an entry level position.
In cross-examination, Mr Olsen put a proposition to the Applicant that notwithstanding the job title in the advertisements, the actual position described in the advertisements has a main focus on trade accounts, such as painters and decorators, “throughout Brisbane, including far north as the Brisbane River and as far south as Ormeau and out to Toowoomba” and resellers were only a minor focus of the position.
Mr Olsen questioned the Applicant as to whether she used to have responsibility or a designated budget for trade accounts in her former position. The Applicant conceded that she did not have a budget for trade accounts and that trade clients in Southeast Queensland were not her responsibility, though the Applicant said she often assisted and supported trade representatives in North Queensland. The Applicant also conceded that the territory for which she used to be responsible was the whole of Queensland whereas the territory stipulated in the advertisement is for a much smaller region in the Southeast.
Further, in response to a preposition that of the 39 reseller accounts for which the Applicant used to be responsible, the position now being advertised covers a territory which only requires servicing 5 out of those 39 resellers and is therefore a different job, the Applicant conceded that the position being advertised as Trade Account – Manager is a different role but contends that she could have performed this role had the position been offered to her. In response to my question as to whether the Applicant had applied for the advertised position, the Applicant confirmed that she did not because she had been made redundant.
Mr Olsen gave evidence that after the restructure and the rejection of the part-time position by the Applicant in April 2022, he became responsible for Queensland resellers on an interim basis. Mr Olsen explained that in mid-July 2022, in an attempt to alleviate his workload, he formulated a strategy to split those Queensland resellers into 3 areas by location and have Trade Account Managers look after them as well as their own trade customer accounts.
Mr Olsen explained that many of the high-value Queensland resellers are located in Brisbane and the Sunshine Coast, and he decided to split them into 3 areas: North Brisbane and North Queensland; the Gold Coast and Northern NSW; and South Brisbane, Ipswich, Ormeau and Toowoomba. At the time, there were 2 Trade Account Managers in Queensland, and it was decided to recruit a third Trade Account Manager who would be responsible for resellers in South Brisbane, Ipswich, Ormeau and Toowoomba. Mr Olsen’s evidence is that the advertised position is responsible for servicing 86 trade customers with only a small group of resellers and business development of new customers. Mr Olsen submits that the Queensland reseller accounts – the responsibility of the Applicant’s former position – were being redistributed across 3 Trades Managers and the position being advertised was therefore not the same job as the Applicant’s former role.
Consideration
Reason for the delay
The reason for the delay relied on by the Applicant is that when she was dismissed on 15 April 2022, she believed that her role was genuinely redundant, and upon seeing an advertisement for a position on 20 July 2022, she formed a view that the position was her previous role and that her redundancy was therefore not genuine.
After considering the evidence, I do not accept that the role the Applicant saw advertised on 20 July was identical or substantially the same as her previous role. Nor do I accept that there was any alternative role that the Applicant could have filled in contemplation at the time she was dismissed.
I accept that there was a restructuring of the Respondent’s business, and that the Applicant was offered a part-time role, which she rejected. That part-time role would have required the Applicant to service fewer resellers than she had serviced in her full-time role. I also accept that Mr Olsen attempted to take on part of the reseller work that had previously been undertaken by the Applicant and that on or around 20 July, Mr Olsen decided that this was not feasible, and advertised for a trade sales representative incorporating the duties of the part-time role servicing resellers previously offered to the Applicant.
This is not a case where there is any evidence that there was a subterfuge or any conduct on the part of the Respondent to make the Applicant’s position redundant and then to wait for the expiration of the 21-day period in which an unfair dismissal application could be made before filling the Applicant’s former role. In those circumstances, the conduct of the Respondent does not provide a reason for the delay and there is no connection between the dismissal of the Applicant and the new role. The Applicant advanced no other reason for the 76-day delay in filing her application and the lack of a reasonable explanation for the delay is a matter that weighs against a further period being granted.
Whether the Applicant became aware of the dismissal after it took effect
The Applicant was notified of her dismissal on 11 April 2022 and it took effect on 15 April 2022. This does not support the grant of a further period, and the fact that the Applicant had the full 21-day period to make an application weighs against the grant of a further period.
Any action taken by the Applicant to dispute the dismissal
The Applicant took no action to dispute the dismissal and in circumstances where the delay is relatively lengthy and the position the Applicant claims she could have performed has been filled, this weighs against the grant of a further period. I also note that despite being aware of the roles advertised by the Respondent, and believing that she was qualified to undertake them, the Applicant did not apply for those roles.
Prejudice to the Respondent
The Respondent has restructured its business and redistributed the work previously performed by the Applicant. The 76-day delay is relatively lengthy and it is probable that the respondent would be prejudiced by the grant of a further period, which weighs against such period being granted.
Merits of the application
This is not a case where the merits are so obvious that this weighs in favour of a further period being granted. It is apparent that if a further period was granted, the application would be met with a jurisdictional objection on the ground of genuine redundancy. It is not apparent that the roles identified by the Applicant are the same as the role she previously held and there is no indication that the Respondent engineered the redundancy of the Applicant for some ulterior purpose. At best, this is a neutral consideration.
Fairness between the Applicant and other persons in a similar position
As a Full Bench of the Commission has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[4]
I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons. Additionally, neither party brought to my attention
any relevant matter concerning this consideration. It is apparent that the principal reason for the delay in this case is the Applicant’s mistaken view that a role advertised after her role was made redundant was the same as the role she had previously performed or that she could have performed the new role. This is not a basis for the grant of a further period to make an unfair dismissal application.
Having regard to the matters in s 394(3) of the FW Act, I am not satisfied that there are exceptional circumstances in this case, 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 extend time. The Applicant’s unfair dismissal application is therefore dismissed. An Order to that effect was issued on 5 December 2022.
DEPUTY PRESIDENT
Appearances:
S Elliott, Applicant.
T Olsen, Respondent.
Hearing details:
2022.
Brisbane (by Phone)
September 7.
[1] PR748588.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].
Printed by authority of the Commonwealth Government Printer
<PR748596>
0
1
0