Steve Sinclair v BlueScope Distribution Pty Ltd t/a BlueScope Steel

[2015] FWC 5849

[2015] FWC 5849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steve Sinclair
v
BlueScope Distribution Pty Ltd t/a BlueScope Steel
(U2015/2855)

COMMISSIONER JOHNS DARWIN, 25 AUGUST 2015

Application for relief from unfair dismissal - whether to extend time for lodging the application – extension of time not granted.

Introduction

[1] The Fair Work Act 2009 (Cth) (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Mr S. Sinclair (Applicant) a further period for lodgement of his application for an unfair dismissal remedy against BlueScope Distribution Pty Ltd t/a BlueScope Steel (Respondent) in circumstances where his completed application was lodged out of time. The Applicant was terminated by way of redundancy on 7 November 2015 and filed his unfair dismissal application on 5 February 2015, that being 69 days outside the statutory time limit. Accordingly, the matter proceeded by way of a jurisdictional hearing.
[3] This matter was previously the subject of a jurisdictional hearing before Senior Deputy President Drake and was then appealed to a Full Bench of this Commission. The Full Bench, in quashing her Honour’s decision at first instance, remitted this matter to the Commission as presently constituted for a further jurisdictional hearing.

Preliminary matter - permission to be represented

[4] The Applicant represented himself and the Respondent was represented by Ms J. Liley, an Employee Relations Manager at the company. I note that the Respondent had been represented in both proceedings below by a lawyer and that a Form F53 “Notice of Representative Commencing to Act” was filed for the purposes of the hearing before the Commission as presently constituted. Though there was a lawyer present with the Ms Liley in the hearing, no application was made pursuant to section 596 of the FW Act so the Commission did not have to turn its mind to the question of permission to be represented. 3

The jurisdictional objection

[5] On 16 February 2015, in its Form F3 “Employer Response”, the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the unfair dismissal application because it was lodged later than 21 days after the dismissal took effect. 4
[6] After being allocated this matter, the Commission as presently constituted issued Directions on 3 July 2015 which noted that the evidence filed for the hearing before her Honour would be deemed as evidence before the Commission in this instance. Those directions also provided the parties an opportunity to file any additional submissions and witness statements in relation to the jurisdictional objection.
[7] The Applicant did not file any additional material to that which he provided to her Honour. In short, the Applicant says that, although the termination took effect on 7 November 2014, he filed the application the day after he had seen an advertisement on a job search website for what he thought to be the exact same position he had held at the Respondent (February Job Advertisement). The Applicant’s submission was that he formed the view that his redundancy was not genuine – and, by extension, that he was unfairly dismissed – only after having seen the February Job Advertisement on 4 February. 5
[8] On 17 July 2015, the Respondent filed further submissions in relation to the Applicant’s application for an extension of time 6 and an Affidavit for Mr S. Wallish, an HR Business Partner at the Respondent.7 In short, the Respondent submitted that the Applicant was clearly aware of his dismissal on 7 November 2014 yet made no attempt to dispute the dismissal until a point nearly three months after that date. Further, the Respondent submitted that the February Job Advertisement was not for the exact same position once held by the Applicant, and as such, it was a meritless reason for the delay in filing the unfair dismissal application.8

Legislative scheme

[9] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[10] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 9In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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. 10 

Facts leading up to and relating to the dismissal

[11] The Applicant commenced work for the Respondent in late 1998. 11 At the time of his termination, he was an Estimator. On 23 October 2014, the Respondent announced a restructure of its Brisbane Metro business12 which resulted in the Applicant being made redundant. The Applicant very reluctantly received a severance package associated with the redundancy.13 The restructure resulted in 10 positions being abolished14 and eight employees within the Respondent’s business being retrenched15.
Consideration
Paragraph 394(3)(a) - The reason for the delay
[12] It is undisputable that the Applicant’s unfair dismissal application was filed 69 days outside the 21-day limit mandated by the FW Act.
[13] In listing the reasons for the delay, the Applicant submitted that he reluctantly accepted the forced redundancy and that he had been targeted by management who had taken unfavourably to him and treated him poorly in the final period of his employment. 16 These are not satisfactory reasons for delay, largely because they are factors which, plainly, would have been known to him on the date of his dismissal. The Applicant’s submission regarding the February Job Advertisement was dealt with by the Full Bench as follows:

[6] … The position had become vacant as a result of a previous occupant being dismissed in January 2015 for misconduct at a Christmas function. This had occurred well after Mr Sinclair’s dismissal, meaning that the position had not been vacant at the time he had been made redundant and thus that he could not reasonably have been redeployed to that position. There is no indication at the hearing before the Senior Deputy President that Mr Sinclair contested any of this.

…

[14] … [The uncontested facts relating to the advertised position] had important implications for the considerations of the merits of Mr Sinclair’s unfair dismissal remedy application, since the uncontested facts concerning the advertisement meant that his application, to the extent that it relied on the advertisement, had no merit.

[14] There was a further reason that, at one point, was advanced by the Applicant as the reason for the delay, namely that his former manager’s position (that of Estimator MDM) was made redundant and, the Applicant later discovered that, his former manager was, in his view, placed into the Applicant’s position as an Estimator. The Respondent denied this factual characterisation and submitted that the former Estimator MDM had an account base quite different from that of the Applicant.
[15] In any case this issue was also dealt with by the Full Bench:

[5] … in a written note provide to [the Full Bench] on 19 June 2015 after the hearing of his application for permission to appeal, Mr Sinclair with commendable honesty said: “I realise that I must have become aware of [the role being performed by the former Estimator MDM] after I filed the [unfair dismissal application] otherwise I would have included this a my main reason [for the delay in filing the application]”. It is therefore apparent that this information received by Mr Sinclair could not have constituted the reason for his delay in filing his application.

[16] The reason advanced by the Applicant for the delay in filing his unfair dismissal application is therefore entirely related to the February Job Advertisement. The Commission, as presently constituted, accepts that, at the time he saw the February Job Advertisement, the Applicant thought it was his position being advertised. It was a genuine belief held by him and, obviously, he could not have held that view until February 2015 when the job advertisement was placed. It therefore provides a reasonable explanation for the delay and weighs in favour of granting an extension of time.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[17] It is uncontested that the Applicant first became aware of the dismissal on 7 November 2014. The long delay between that date and the filing of the unfair dismissal application weighs against granting the extension of time.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[18] No evidence was advanced by the Applicant to rebut the Respondent’s submission that no steps had been taken to dispute the termination in the nearly three month period between the termination and the filing of the unfair dismissal application.
[19] This factor weighs against granting the Applicant a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[20] The Respondent submitted that it would be prejudiced by the considerable expense – both in legal fees and management time – inherent in defending an unfair dismissal claim if the Commission granted the Applicant an extension of time. The Respondent says that, given the amount of time that has elapsed since the Applicant’s dismissal and the severance package which he has already received, the costs associated with an unfair dismissal hearing would be prejudicial. 17
[21] The prejudice asserted by the Respondent also weighs against granting the Applicant a further period to make his application.
Paragraph 394(3)(e) - The merits of the application
[22] In the matter of Kornicki v Telstra-Network Technology Group, 18the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 19

[23] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[24] The substantive factual contest between the Applicant and the Respondent relates to the position that was the subject of the February Job Advertisement. The uncontested evidence is that it was not the same position as that previously held by the Applicant.
[25] It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing, the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing. However, in the present matter the facts relating to the position that was the subject of the February Job Advertisement are uncontested.
[26] On the whole, the Commission as presently constituted is satisfied that the Applicant’s case is, more likely than not, one that is without merit or is lacking in any substance.
[27] Having come to that conclusion it this factor weighs against granting the Applicant a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[28] No such issue arose in this matter.

Conclusion

[29] For the reasons set out above, on balance, the Commission is satisfied that there are no exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application). While the reason for the delay is reasonable, the lack of merit in the underlying unfair dismissal application means that there is nothing out of the ordinary course, or unusual, or special, or uncommon about this matter that would warrant the granting of an extension of time. An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr S. Sinclair representing himself.

Ms J. Liley for the Respondent.

Hearing details:

2015.

Sydney:

24 July.

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) section 36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) of the FW Act.

 3   PN5-8.

 4   Form F3: Q2.2.

 5   Form F2: Q1.4; Exhibit S1 before he Honour.

 6   Exhibit R2.

 7   Exhibit R3.

 8   [2015] FWCFB 4035 at [14].

 9 [2011] 203 IR 1.

 10 Id at [13].

 11   Form F2: Q1.1; Form, F3: Q1.2.

 12   Exhibit R1, Annexure A and B.

 13   Exhibit R2 at 1.2.

 14   Exhibit R1 at 7.

 15   Exhibit R1, Annexure C

 16   Form F2: Q1.4.

 17   Exhibit R2 at 4.

 18   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 19   Ibid.

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