Steve Sinclair v Bluescope Steel

[2015] FWC 3080

[2015] FWC 3080 [Note: An appeal pursuant to s.604 (C2015/3910) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 25 June 2015 [[2015] FWCFB 4035] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Steve Sinclair
v
Bluescope Steel
(U2015/2855)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 6 MAY 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Sinclair and the respondent ended on 7 November 2014. Mr Sinclair lodged his application at the Fair Work Commission on 5 February 2015. This application was lodged 69 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Sinclair. I wrote to Mr Sinclair on 10 February 2015 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Sinclair provided a comprehensive statement on 19 February 2015. It is extracted below:

“The reason for the delay was that I was unaware that my position was being advertised & I was unaware that another employee (Jason Schomberg ) who was being made redundant at the same time had a position found for him at Orrcon as a sales representative - positions similar to mine ( internal sales ) were advertised at Orrcon but no effort was made by Mr Bruce Kady on my behalf to relocate me to Orrcon.

I begged for my position before I was made redundant all to no avail, why couldn't I be found employment within the group like other employees.

The estimating position advertised is to be based at Northgate and the person who left because of "gross misconduct" was not an estimator.

More could have been done to keep me on after 17 years service. I feel new management took a dislike to me for whatever reason & did not explore every possible avenue to keep me employed within the group. This was not a genuine redundancy.

I have no money for a lawyer but feel I have definitely been treated unfairly by Bluescope.” 1

[4] The respondent filed an Employer Response in which it denied any impropriety in the redundancy of Mr Sinclair. It submitted that the termination of Mr Sinclair's employment arose from a genuine redundancy. In paragraph 2.2, 3.1 and 3.2 of the response the respondent said:

“2.2 On what basis do you object? If you object on multiple grounds you can select more than one from the list below:

The claim submitted by the applicant is outside the 21 day period for Unfair Dismissal Claims to be lodged to Fair Work Australia.

The termination was effective on 7 November 2014, with the 21 day period lapsing on 28 November 2014. We first received notification via a letter dated 6 February 2015 that a claim had been lodged with the Fair Work Commission.

The termination of the Applicant from the business was on the grounds of a genuine redundancy, and he was paid a severance payment in line with his contract of employment.”

3.1 What were the reasons for the dismissal?

The applicant (Mr Steve Sinclair) was employed in an Estimator position at our Northgate branch in Queensland. The business undertook structural changes of the Queensland business, with the aim of creating greater efficiencies and streamlining the way we serve our customers.

The net result of these changes was a total of 7 redundancies. Mr Sinclair was notified on the 5th of November 2015 that his position was made redundant as a result of the organisational changes, and he soon left the business on the 7th of November on the grounds of a genuine redundancy.

3.2 What is your response to the applicant’s contentions?

We strongly refute the applicant’s claims that his role was re-advertised, and wish to address each of his points as outlined in 1.4 of the Unfair Dismissal application.

1. We can confirm that the applicant was notified of redundancy on the 5th of November, with an effective date of 7th November 2014. A copy of the redundancy letter has been included under Appendix A.

2. The position advertised in February 2015 was not the same position, as claimed by the applicant. The applicant was employed within our Metro Distribution business, whereas the vacant position advertised was within our Regional Distribution business.

3. The Estimator role within the regional the Regional Distribution business was advertised both internally and externally. The role that was advertised was reporting to a different manager within a different division from when the applicant was employed.

4. The need to recruit for a role within our Regional Distribution business arose from an employee being terminated for gross misconduct in January 2015.

5. The question of whether the redundancy was genuine needs to be determined at the time the termination occurred in this case that was 7 November 2014 the advertised position in February 2015 is not relevant.”

[5] I determined that this application should be heard in person rather than determined by submissions, I listed the application in Brisbane on 10 April 2014. I issued an Order allowing Mr Sinclair’s application for an extension of time on 21 April 2015.

[6] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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.

[7] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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]

[8] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[9] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[10] The reason Mr Sinclair provided for his delay in lodgement was that he did not understand that it was possible that his redundancy was not genuine until he saw his position advertised on 4 February 2015. He lodged his application on 5 February 2015.

[11] I was persuaded that Mr Sinclair’s position was out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[12] Mr Sinclair became aware of the end of his relationship with the respondent on 7 November 2014.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[13] Mr Sinclair disputed his dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[14] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Sinclair’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[15] Merit was a neutral issue in my consideration of this application.

fairness as between Mr Sinclair and other persons in a similar position-s.394(3)(f)

[16] There was no issue of fairness in relation to any other person in a similar position.

[17] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis allowed the application. I was satisfied that Mr Sinclair’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   Exhibit Sinclair 1.

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