Stephen Trifyllis v Nine Entertainment Co. Pty Ltd
[2025] FWC 754
•17 MARCH 2025
| [2025] FWC 754 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Stephen Trifyllis
v
Nine Entertainment Co. Pty Ltd
(C2025/596)
| COMMISSIONER SIMPSON | BRISBANE, 17 MARCH 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection – application filed out of time – Application for extension of time dismissed.
On 23 January 2025, Mr Stephen Trifyllis (Mr Trifyllis / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Nine Entertainment Co. Pty Ltd (the Respondent).
The Respondent raised a jurisdictional objection that the application was filed outside the 21-day statutory time limit. The application was filed 109 days out of time.
On 12 February 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 17 March 2025.
Mr Brian AJ Newman, a paid agent at 1800Advocates Pty Ltd was granted leave under s.596(2)(a) to appear on behalf of the Applicant, and Mr Jarrad Parker, Executive Counsel at the Respondent appeared on behalf of the business.
Rhonda Louise Longworth, People Solutions Lead, Case Management provided a witness statement[1] dated 20 February 2025 for the Respondent. Mr Trifyllis provided an initial statement on his own behalf[2] dated 28 February 2025, and a supplementary statement[3] dated 14 March 2025. Mr Trifyllis was not required for cross examination. Ms Longworth was briefly cross examined.
Background and Evidence
The Applicant commenced working for the Respondent on 13 October 2022 in the role of Sales Executive in the Total Audio Team.
Ms Longworth was not challenged on her evidence that in mid-2024, the Respondent undertook a review of its national Radio Sales team to address operational inefficiencies and reduce costs. As part of this review, the Applicant’s position was identified for redundancy. As the Applicant was on leave in Europe at that time, any consultation was postponed until his return.
On 6 September 2024, the Applicant attended a meeting wherein he was notified of the termination of his position. As part of this meeting, it was claimed by the Respondent the redundancy process was discussed with him, as were the possibilities for redeployment. The Applicant gave unchallenged evidence that he was not consulted about alternatives to redundancy. The Respondent does not dispute that the Applicant was told that there were no suitable alternative positions with the Respondent at that time.
On 9 September 2024, the Applicant received a letter from the Respondent, advising that his role was being made redundant and that his last day of employment with the Respondent would be Friday, 13 September 2024. The Applicant was paid 1 week in lieu of notice on termination of his employment as well as his other outstanding entitlements and an ex-gratia payment of $2,615.38. The Applicant was 67 years old at the time of his dismissal.
Based on the evidence of Ms Longworth I accept on 15 November 2024, some two months after the Applicant’s dismissal, the Respondent announced its intention to restructure the Total Audio team in which the Applicant had previously been employed, to separate Agency Sales from Direct Sales and create a Direct Sales team. As part of this restructure all the existing employees in the Brisbane Radio Sales team would be required to work in Agency Sales moving forward and therefore, a new employee was required to direct the Direct Sales team in Brisbane. Therefore, the role of Sales Executive in the Brisbane Direct Radio Sales team (the Similar Role) was created and a new employee commenced in that role on 6 January 2025.
The Applicant said on 10 January 2025, he became aware of the existence of a similar Role, and that a new employee had been hired into that role. He said he obtained confirmation from former colleagues that this new employee was performing similar duties to his previous role.
On 23 January 2025, the Applicant filed an application with the Commission, arguing that his dismissal was not a genuine redundancy but was adverse action in contravention of a workplace right and/or for a discriminatory reason based on the Applicant’s “age or other characteristics”.[4]
Consideration
In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s.366(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[5] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[6] 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 can be considered exceptional.[7]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional”[8]
(original emphasis)
Reason for the delay
The Applicant submits that there are three reasons for the delay which ‘collectively constitute exceptional circumstances’.[9] Firstly, the Applicant submits that there was a misrepresentation by the Respondent of the redundancy as genuine and final (the First Reason) and that it was only upon discovering that a Similar Role existed that he became aware of grounds to dispute the redundancy and took prompt action to file the application (the Second Reason). Finally, the Applicant submits that the ‘abrupt and unexpected nature of the dismissal’ caused him significant emotional distress, which hindered his ability to take steps to dispute the dismissal in a timely manner (the Third Reason).[10] The Applicant relies on Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group (‘Ovenden’),[11] to support the proposition that stress or mental health issues arising from a dismissal may contribute to exceptional circumstances justifying extension of time.
The Respondent submits that receipt of information about a new hire after the dismissal is one of many potentially relevant factors going to whether there were exceptional circumstances and that the First and Second Reasons ‘may not be so compelling as to reasonably explain the delay in filing’.[12] It points to the four month period between the Applicant’s redundancy and the commencement of the Similar Role, as well as the fact that the restructure leading to the creation of the similar role occurred in November 2024, well after the Applicant’s dismissal. It submits that the Similar Role did not exist at the time of the Applicant’s dismissal and therefore that it is ‘inherently implausible’ that the creation of the Similar Role was delayed, to make the Applicant improperly redundant.[13]
Further, it submits that the Applicant has provided no explanation for the delay between learning that the Similar Role has been created on 10 January 2025 and filing the Application 13 days later, on 23 January 2025.
As to the Third Reason, the Respondent submits that emotional distress, in the absence of medical evidence, does not constitute an acceptable reason for delay and that shock and trauma arising from a dismissal cannot be said to be an exceptional circumstance.[14]
The Applicant has provided no adequate explanation for the 13-day delay from 10 January 2025 when he said he learnt of the Similar Role, and 23 January 2025. He referred to a delay caused by seeking legal advice and needed to gather supporting evidence however neither of these things of themselves constitute exceptional circumstances given it is an everyday matter that self-represented Applicants file applications. Further the Applicant has provided no medical evidence concerning his stated emotional distress that would support his claim that it prevented him from filing his application in the period from 10 January 2025 to 23 January 2025.
Any action taken by the person to dispute the dismissal
The Applicant has not made submissions as to actions taken by him to dispute the dismissal, either at the time that he was made redundant, or upon learning that the Similar Role has been created, except to say he took prompt action after learning of the similar role. The Respondent submits that the Applicant took no action to dispute his dismissal prior to lodging the application and that therefore this consideration weighs against granting an extension of time or, in the alternative, is neutral. It appears the only action to dispute the application was the filing of the application itself and this does not assist the Applicant’s case that there are exceptional circumstances justifying the extension of time.
Prejudice to the employer
The Respondent submits that it would be prejudiced by the grant of an extension of time, owing to the ‘considerable’ period of the delay.[15] It argues that this factor weighs slightly against granting an extension of time. The Applicant makes no submissions as to prejudice. I conclude this is a neutral consideration on the facts in this case.
Merits of the application
The Applicant submits that his termination was adverse action taken because the Applicant had a workplace right conferred by ss. 3 and 389 of the Act and/or for discriminatory reasons related to his age or ‘other factors’. The Applicant appears to contend that s.389 confers a workplace right insofar as it provides that a redundancy is only genuine if the requirements of that section are met. The Applicant submits that the redundancy was not a result of genuine operational requirements, and that there was no meaningful consultation or effort to redeploy the Applicant. These factors, he suggests, ‘strongly suggest that the redundancy was not genuine and may have been a pretext for adverse action’.[16]
The Respondent submits that, on its face, the application has no merit. It relies on Telstra-Network Technology Group v Kornicki,[17] in which a Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
The Respondent submits that the Applicant’s argument relating to workplace rights is ‘wholly misconceived’ as neither s.3 nor s.389 confer any workplace right on the Applicant, as defined in s.341 of the Act.[18] Section 389, it says, merely defines the meaning of genuine redundancy and does not create any workplace rights.[19] Section 3, relating to the objects of the Act, similarly does not confer any rights or obligations.
Further, the Applicant’s argument with respect to discrimination in contravention of s.351 is ‘doomed to fail’ as the Applicant has not identified any specific protected attribute and in fact, conceded in his application that there is ‘no direct evidence of explicit discrimination’.[20]
I am inclined to be persuaded by the Respondent’s submissions that the facts as presented by the Applicant when assessed against the asserted workplace rights referred to in the application do not appear to give rise to a prima facie case of unlawful adverse action and that tells against extending time.
Fairness as between the person and other persons in a like position
Neither party made submissions relevant to this factor.
Conclusion
I have weighed each of the matters I am required to take into account and have determined that there are not exceptional circumstances in this case justifying an extension of time of 109 days. On that basis the application is dismissed.
An order dismissing the application will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr B Newman, for the Applicant
Mr J Parker, for the Respondent
Hearing details:
2025.
Brisbane (by video)
17 March.
[1] Exhibit 3
[2] Exhibit 1
[3] Exhibit 2
[4] Form F8 at 3.3.
[5] (2011) 203 IR 1, 6 [15].
[6] Ibid 5 [13].
[7] Ibid 5–6 [13].
[8] (2018) 273 IR 156, 165 [38].
[9] Form F8 at 1.4.
[10] Ibid.
[11] [2010] FWA 3863.
[12] Respondent’s Outline of Submissions, Digital Court Book p. 222 at [14] citing Amos v Legend Holding Group (Aust) Pty Limited t/a The Manly Greenhouse [2019] FWC 7359 at [17].
[13] Respondent’s Outline of Submissions at [17].
[14] Ibid 224 citing Rose v BMD Constructions Pty Ltd[2011] FWA 673.
[15] Respondent’s Outline of Submissions at [25].
[16] Applicant’s Outline of Submissions, Digital Court Book p. 33.
[17] (1997) 140 IR 1.
[18] Respondent’s Outline of Submissions at [30].
[19] Ibid at [31] citing Martens v Indigenous Land Corporation & Anor [2017] FCCA 896 at [28].
[20] Ibid at [33] quoting Form F8 at 3.3.
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