Stephen Green v Lanotec Australia Pty Ltd T/A Lanotec

[2016] FWC 168

[2016] FWC 168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Green
v
Lanotec Australia Pty Ltd T/A Lanotec
(U2015/14345)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 JANUARY 2016

Application for relief from unfair dismissal.

[1] Mr Stephen Green alleged that the termination of his employment by Lanotec Australia Pty Ltd on 30 September 2015 was unfair. Mr Green’s termination letter dated 30 September 2015 was not given to him until 7 October 2015 and despite him being told his termination was immediate, his last day of work was 9 October 2015. This was not disputed and for the purpose of this application, I will treat 9 October 2015 as the date the dismissal took effect.

[2] His unfair dismissal application lodged on 23 November 2015 was not made within 21 days of the date of the dismissal.

[3] At the hearing, I granted permission for Lanotec to be represented by a legal practitioner. This was opposed by Mr Green. Lanotec submitted that it should be permitted to be represented as this was a jurisdictional hearing and involved some complexity. It further submitted Mr Bouterey, the CEO, would not be able to effectively represent Lanotec as Mr Bouterey has no HR experience and no experience with Fair Work Commission processes. It was submitted that Lanotec relies upon external human resources advice. I note that Mr Bouterey was also to be a witness in the proceeding.

[4] Mr Green relied on information on the Commission’s website to submit that because he was unrepresented it would not be unfair to refuse them permission. In particular, he referred to one of the examples given of circumstances where permission for representation may be granted, namely where a small business is a party and they do not have specialist human resource staff, and the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations.

[5] He submitted that it would be unfair to permit Lanotec to be represented as he was unable to afford representation.

[6] I determined at the hearing to grant Lanotec permission to be represented by a legal practitioner. The example relied on by Mr Green is one example where permission may be granted. However, it is not the only circumstance where it may be granted.
[7] I accepted Mr Bouterey would not be able to represent Lanotec effectively as whilst he is the CEO, I accept that his lack of human resources and Commission experience would mean he was not able to effectively represent Lanotec and it would be unfair in circumstances where Lanotec had sourced external advice in relation to these matters for it not to be able to be represented by its advisers at this time. The fact that Mr Green is unrepresented is not sufficient to find against representation.

[8] Mr Green was employed by Lanotec as a General Manager based in Perth. In September 2015, Mr Green was advised that the position of General Manager in Perth was no longer available and if he wished, he could transfer to a General Manager role in Sydney. Mr Green was not able to accept this offer. Mr Green’s letter of termination advised him that his position was redundant and that there were no other redeployment opportunities other than the position he had rejected. He was told that as the company was a small business he was not entitled to redundancy pay.

[9] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[10] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[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." [Endnotes not reproduced]

(a) the reason for the delay;

[11] Mr Green advised that he contacted a solicitor who advised him that despite the business having fewer than 15 employees, he was entitled to redundancy pay under the Fair Work Act 2009. To avoid costs, he was advised to write to Lanotec and advise it of its obligation to pay redundancy pay. He did so on 12 October 2015. He did not receive a reply and sent a follow up email on 20 October 2015. He received a reply on 22 October 2015 and Lanotec denied it had any obligation to pay him redundancy pay. Mr Green “registered” with the Fair Work Ombudsman on 28 October 2015 and provided all his supporting documentation on 2 November 2015. On 13 November 2015, he was advised by the FWO that they were unable to resolve the matter. He then sought further advice from the Fair Work Commission and lodged his application on 23 November 2015. He said he followed the advice from the FWO and the Commission both verbally and via the website and believed that that the FWO was the correct body to follow up his claim for unpaid monies. He says he was advised to try and resolve his dispute directly with Lanotec.

[12] Mr Green was given correct advice in relation to his claim about his entitlements. If he believed that he was entitled to redundancy pay, then the FWO was the correct body to seek assistance from. However, there is no evidence that Mr Green complained to the FWO about being unfairly dismissed and was given incorrect advice. It is not unusual for employees to seek to resolve any dispute with their ex-employer about unpaid monies prior to making a claim with the FWO or the courts, however, any claim for unpaid monies is entirely independent of any claim Mr Green may have had for believing that he was unfairly dismissed. It is also not unusual for employees to attempt to resolve these disputes prior to lodging an unfair dismissal claim.

[13] Mr Green submitted that Lanotec had contributed to the delay by not responding to his claim. I do not agree. Mr Green was required to file his application within 21 days. That Lanotec had not replied to his query about his entitlements did not mean he could delay filing his unfair dismissal application. On 22 October 2015, Mr Green knew that Lanotec denied his claim. At this time he was within time to lodge an unfair dismissal application but he did not.

[14] While Mr Green registered with the FWO on 28 October 2015, I do not accept that by registering he was seeking advice from the FWO about unfair dismissal. Again, if he had filed his unfair dismissal application at this time, he would have been within time. Mr Green did not provide them with any information until 2 November 2015 by which time the 21 days had passed.

[15] Mr Green was advised on 13 November 2015 that the FWO was taking no action, yet Mr Green did not file his unfair dismissal application for another 10 days. Mr Green explained this delay as being due to seeking further advice and completing the form.

[16] I am not satisfied that Mr Green has provided a reasonable explanation for the whole of the delay. Mr Green made a decision to seek to resolve his claim for redundancy pay and other entitlements prior to lodging his unfair dismissal application. That is not unusual. The risk he took was that it would not be resolved in time. Further, even if I accepted that this was reasonable, he took a month after Lanotec advised him that it rejected his claim and he took a further 10 days after the FWO advised that it would not pursue his claim for redundancy pay to file his unfair dismissal application. I do not accept that it was reasonable for Mr Green to take this time to seek further advice and complete the form. The form is not complex and information is readily available on the Commission’s website.

[17] This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[18] Mr Green was aware of his dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[19] Once he was dismissed, Mr Green did not dispute the dismissal. What he disputed was whether Lanotec was a small business and therefore exempt from the obligation to pay him redundancy pay. He also disputed the failure to pay his other entitlements. This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[20] Lanotec submitted that it had dealt with Mr Green’s complaint to the FWO. It submitted that it would now be faced with incurring further costs defending Mr Green’s unfair dismissal complaint, which is misconceived, as Mr Green is seeking his redundancy pay.

[21] I accept that Lanotec would suffer some prejudice if an extension of time was granted but I do not consider that this prejudice would weigh against a finding of exceptional circumstances. I consider that this criterion is neutral.

(e) the merits of the application;

[22] Lanotec gave evidence that it had operational reasons for making Mr Green’s position redundant. There is no suggestion that Mr Green’s employment was covered by either a modern award or an agreement so Lanotec had no obligation to consult with Mr Green. Lanotec offered Mr Green an alternative position, albeit in Sydney, which Mr Green refused. There is no evidence that there were any other positions Mr Green could have been redeployed to.

[23] Mr Green claimed that the position he was offered was the job he was doing and that he could have continued to do the job in Perth. He submitted that the redundancy was a sham, as was the offer of redeployment.

[24] In his application, Mr Green stated that he was seeking the payment of his outstanding entitlements. Mr Green misunderstands the role of the Commission. It is not the role of the Commission to order Lanotec to pay him his entitlements. If, as he claims, Lanotec was not a small business, then Mr Green must institute proceedings in a court to recover his entitlements.

[25] I am not able to make any assessment of the merits of Mr Green’s claim as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[26] There were no submissions that there were any other persons in a similar position to Mr Green.

Conclusion

[27] I am not satisfied that there are exceptional circumstances. Mr Green has not provided a reasonable explanation for the whole of the delay. None of the other criteria weigh in favour of a finding of exceptional circumstances. Mr Green’s application for an extension of time is dismissed and therefore his unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Green on his own behalf.

Ms B Winter on behalf of the Respondent.

Hearing details:

2016.

By telephone:

January 8.

 1   [2011] FWAFB 975.

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