Shane Congdon v Capral Limited
[2012] FWA 4184
•22 MAY 2012
[2012] FWA 4184 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shane Congdon
v
Capral Limited
(U2012/93)
COMMISSIONER WILLIAMS | PERTH, 22 MAY 2012 |
Termination of employment - extension of time.
[1] Mr Shane Congdon (the Applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Capral Limited (Capral).
[2] The application was the subject of a conference before a Fair Work Australia Conciliator however the matter had not been resolved.
[3] Capral object to the application arguing it has been lodged more than 14 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made and that in any event the dismissal was a genuine redundancy and so is not unfair.
[4] Section 394 (3) allows Fair Work Australia to allow a further period for an application such as this to be made only if Fair Work Australia is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 below.
“s. 394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[5] Submissions have been provided by the parties regarding Capral’s objection that the application was made out of time.
What was the date of dismissal?
[6] In the application the Applicant states that he was notified of his dismissal on 16 December 2012 and that the dismissal took effect on Monday 9 January 2012.
[7] Capral however submits that the dismissal took effect on Friday 6 January 2012.
[8] The parties are not in dispute about the correspondence or discussions between them leading up to the dismissal but rather the effect of those interactions in determining what the true date of the Applicant’s dismissal was.
[9] As the Applicant explained in his submissions he received a letter from Capral dated 16 December 2011 which said that he had until 5.00 pm on 6 January 2012 to accept an alternative position of team leader because his present role was to be made redundant. The Applicant submits that this letter also said that his existing role as supervisor would no longer exist from 9 January 2012. He says this led to some confusion regarding the date he was to be made redundant and he says he tried in vain to have this clarified.
[10] The Applicant further submits that he found himself bombarded with dates, times and ultimatums concerning his position which after 25 years of service lead to anxiety, depression sleepless nights and his marriage suffered as did his relationship with his children.
[11] In reply Capral simply points to the detail of correspondence between the parties in both letters and emails which it considers clearly shows that the Applicant was on notice that his employment would end on 6 January 2012 as finally occurred.
[12] Having reviewed that material it is clear that Carpal’s letter of 16 December 2011 was a confirmation of previous discussions. The letter explains the background and then states that the Applicant’s supervisor role will no longer exist from Monday 9 January 2012, the proposed implementation date for various organisational changes. The letter explains that a new team leader role, which would substantially mirror the duties and responsibilities the Applicant had been performing, will be established.
[13] That correspondence goes on to say that amongst other things the base remuneration for the Applicant would be unaffected and a previous request that he be made redundant and paid redundancy entitlements was rejected because Capral viewed the offer of a team leader role as acceptable alternative employment in accordance with its redundancy policy.
[14] The letter goes on to make the following statement:
“This will mean that in the event you do not accept the team leader role that has been offered by no later than 5pm on 6 January 2012 your employment with Capral will cease and you will only be entitled to be paid your notice of termination (or payment in lieu) and your statutory leave entitlements.”
[15] Further on the letter states:
“Should you fail to accept the offered team leader role, your employment with Capral will cease on 6 January 2012 and you will be entitled to be paid the balance of your notice period from this time and your statutory entitlements to leave at that date.”
[16] There was further correspondence backwards and forwards between the parties including a letter from the Applicant dated 22 December 2011 in which he states that he is being constantly reminded “...that it will be all over on the 6th...”.
[17] In response to this letter Capral again wrote to the Applicant in detail about the issues and their letter included the following statements:
“Against the above, you need to be clear that if you do not accept the offered position your employment with Capral will end on 6 January 2012 and you’ll only be entitled to your notice and accrued leave entitlements.”
[18] On 3 January 2012 the Applicant wrote to Capral again in detail and his letter included the following:
“Your letter states my employment will cease on the 6/1/12 but Sean’s letter states my decision is to be made by the 6/1/12 and my employment will be terminated on the 9/1/12 if I do not accept this proposed position, please clarify this anomaly.”
[19] The following day on 4 January 2012 Capral wrote to the Applicant again and concluded with the following statement:
“Shane, as stated to you under cover of Capral’s letter dated 23 December 2011 the supervisor’s position at Carpal’s Canning Vale site will no longer exist after 6 January 2012. You were further advised at this time that if you do not accept the offered position your employment with will end on 6 January 2012 and you will only be entitled to your notice and accrued leave entitlements.
You have elected to decline the offer of the team leader position and have effectively terminated your employment with Capral. Your final day of employment will be 6 January 2012.”
[20] The following day, Thursday 5 January 2012 there were a number of emails backwards and forth between the Applicant and Capral which included the following statements by the Applicant in his emails:
In an email to All Staff:
“Capral have now terminated my employment as of 6 January 2012.”
In an email to Mary-Anne Ridgill, Capral’s Human Resources Consultant:
“I acknowledge that because for both personal and career reasons which I have stated in previous correspondences, And because I have elected to declined the position of team leader and the position of Supervisor has as from 6 January 2012 being made redundant. Capral has elected to Terminate my Employment on 6 January 2012, And instead of well deserved 25 year Redundancy. Capral has elected to just give me notice with entitlements due and owing to me.” (sic)
[21] Having considered this history of correspondence I accept that initially there was some confusion in the Applicant’s mind as to whether his employment was to end on 6 or 9 January 2012. However having queried this with Capral this confusion was expressly clarified in the Capral’s letter of 4 January 2012. From this point onwards there was no reason for the Applicant to believe otherwise than that his employment would end on 6 January 2012. Indeed it is self evident from the Applicant’s emails immediately thereafter on 5 January 2012, that he understood that his employment was to end the following day, Friday 6 January 2012.
[22] Consequently I find that the Applicant’s employment ended on Friday 6 January 2012.
[23] As a result for this application to have been lodged within the statutory time limit of 14 days it must have been made by the Applicant on Friday 20 January 2012.
[24] The Applicant in his submissions says that he lodged his application on 20 January 2012 and he was then contacted by Fair Work Australia on 23 January 2012 to say that he had sent in a blank Form F2−Application for Unfair dismissal Remedy. The Applicant says he then sent another copy and was contacted again by Fair Work Australia in regards to his signature being required on the form.
[25] As a result of this submission I have reviewed the records of Fair Work Australia to determine when Fair Work Australia first received anything from the Applicant.
[26] The Fair Work Australia records show that there was no electronic lodgement of anything by the Applicant on Friday 20 January 2012.
[27] The records show that the Applicant did make an electronic application which attached a blank Form F2 on Monday 23 January 2012 at 9.02 am.
[28] The records show that at 10.15 am that morning the Fair Work Australia Registry staff contacted the Applicant to advise him that the form he had submitted was blank.
[29] At 10:34 am on Monday 23 of January 2012 a completed Form F2 was received by email from the Applicant and twenty minutes later a signed Form F2 was received from him.
[30] Having reviewed these records there is nothing that supports the Applicant’s assertion that he electronically lodged this application on Friday 20 January 2012. Rather our records show that this application was made by the Applicant on Monday 23 January 2012.
[31] My conclusion is that the Applicant made his application on Monday 23 January 2012.
[32] Consequently this application is made one out of time
Are there exceptional circumstances?
The reason for the delay
[33] To the extent that the Applicant’s submissions can be interpreted as providing an explanation of the reasons for the late lodgement of his application the reasons given are that there was some confusion in his mind about the date of his dismissal and that what occurred had created anxiety, depression and upset in his family life.
[34] With respect to confusion about the date of dismissal, given my finding that the date of dismissal was 6 January 2012 and that the Applicant was fully aware of this, I do not accept the Applicant’s submission that he was confused at all.
[35] The evidence is quite clear in particular from the final emails on 5 January 2012 written by the Applicant that he was fully aware that his employment was ending on Friday 6 January 2012.
[36] Separately the Applicant has not provided any information that would allow the Tribunal to conclude that he was so unwell that he was prevented from making this application within the 14 day time limit. Indeed the Applicant’s own statement is that during that 14 day period he was making sure that he had all the necessary facts correct including his last remaining payslip which demonstrates that he was quite capable of making the application during this period.
Any action taken by the person to dispute the dismissal
[37] There is no evidence that the Applicant took any other actions to dispute his termination after he was dismissed.
Prejudice to the employer (including prejudice caused by the delay)
[38] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.
The merits of the application
[39] The Respondent has provided a significant amount of information, much of which was material provided to the Applicant in their letters to him, which supports their argument that the dismissal of the Applicant was a case of genuine redundancy within the meaning of s. 389 of the Act. If the dismissal of the Applicant falls within the definition of genuine redundancy then the dismissal will not have been unfair.
[40] An employer who argues that a dismissal was a genuine redundancy is required to demonstrate that it would not have been reasonable for the dismissed employee to have been redeployed within the employer’s enterprise (s. 389(2)).
[41] Capral’s position was that it was able to provide alternative employment to the Applicant as a team leader. In effect Capral was obliged to offer this possible redeployment to the Applicant. The Applicant however, as was his right, chose to reject the offer of redeployment for both personal and career reasons. However the Applicant was urging Capral to pay him a redundancy payment rather than offer him alternative employment. Capral refused to do this and clearly and repeatedly explained to the Applicant what would occur if he rejected the offer of alternate employment.
[42] If Capral’s redundancy policy does not allow employees the option of rejecting an offer of acceptable alternative employment and instead electing to take a redundancy payment (which seems to be the Applicant’s complaint in this matter) this is not something that the Tribunal could interfere with in an unfair dismissal case. Such restrictions in company redundancy policies are quite common.
[43] There is no material before the Tribunal to allow me to form a concluded view on this issue and it would not be appropriate to do so to finality at this stage in any event because at this point the Tribunal is only determining whether or not to allow an extension of time to make the substantive application. However at this point an assessment of the merits of the case is a factor to be taken into account in deciding whether or not to allow the extension of time.
[44] The material provided by the parties does strongly support Capral’s position that the dismissal was a genuine redundancy under the legislation and if this is the final conclusion of the Tribunal in any hearing of the substantive application then what has occurred was not an unfair dismissal.
[45] In my view the Applicant’s unfair dismissal case is quite weak. There is very little merit in his application. This factor weighs against granting an extension of time.
Fairness as between the person and other persons in a similar position
[46] This is not a relevant consideration in this matter
Conclusion
[47] The onus is on the Applicant to persuade Fair Work Australia that a further period should be allowed for him to make this application beyond the statutory time limit of 14 days. I have considered the information provided and the submissions by both parties on the relevant factors. In my view none of the matters raised by the Applicant either individually or collectively amount to exceptional circumstances that would warrant the Tribunal extending time in this case for the Applicant to make this application.
[48] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before Fair Work Australia and is dismissed.
[49] An order to that effect will issue in conjunction with this decision.
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