Steven Harp v K&S Freighters Pty Ltd T/A Regal Transport

[2015] FWC 3474

[2015] FWC 3474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Harp
v
K&S Freighters Pty Ltd T/A Regal Transport
(U2015/1479)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Steven Harp alleged that the termination of his employment by K&S Freighters Pty Ltd (K&S Freighters) on 6 February 2015 was unfair.

[2] His unfair dismissal application lodged on 1 April 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work 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.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where 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;

[5] Mr Harp’s employment was terminated because there had been a downturn in the business and his position was made redundant. Mr Harp accepted this at the time. Mr Harp explained that not long after 3 March 2015, he had seen the delivery truck he used to drive being used to do deliveries that he used to do. Asked why he did not lodge an application then, he said he waited until he saw it more often. Mr Harp accepted that no jobs at the depot had been advertised since his departure and it was existing staff who were performing the work.

[6] To the extent that Mr Harp’s claim relies on a contention that he could have been redeployed or there was no consultation, these were matters that Mr Harp was aware of at the time of the dismissal and weighs against extending time. To the extent that Mr Harp relies on his contention that there were no changes in the operational requirements of the business, that would weigh in favour of extending time.

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

[7] Mr Harp was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. However, given his explanation for the delay, I consider this criterion to be neutral.

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

[8] Mr Harp did not dispute the dismissal at the time as he accepted that he had been made redundant. I consider this criterion to be neutral.

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

[9] There was no evidence that there would be any prejudice to the employer. This weighs in favour of extending time.

(e) the merits of the application;

[10] K&S Freighters gave evidence that there had been a downturn in work of approximately 85%. As a result, there was a 50% reduction in the size of the workforce and there are further reductions planned. It said that the driving is currently being done by the remaining drivers at the Derby Depot.

[11] Ms Evans gave evidence that at the time Mr Harp was made redundant, two other employees were also made redundant. She said that the reason the business decided to retain drivers who had worked at the mine instead of local delivery drivers was because they were multiskilled and could do both their work and the work Mr Harp undertook. Mr Harp disputed that he was less multiskilled.

[12] Mr Harp said his position was not redundant and was still required. It was his contention that it was the mine jobs which were redundant. He said the local delivery work was still being done.

[13] The Fair Work Act 2009 (the Act) defines a genuine redundancy relevantly as occurring when the employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

[14] The Explanatory Memorandum makes it clear that this can occur if the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five. 2

[15] In this case, K&S Freighters needed less drivers. It decided to redistribute the driving work to a fewer number of drivers. The mere fact that the work previously performed by a particular employee has been reallocated to another employee does not change this. Ms Evans gave evidence that no new drivers had been appointed and that there will be further redundancies.

[16] In cases where the reason for the delay is an allegation it was not a genuine redundancy because there were no operational reasons, the merits must be assessed against this allegation.

[17] It was not disputed that there had been a downturn in the work. It was not disputed that no new drivers had been employed.

[18] I find based on the material before me that Mr Harp’s claim that there were no operational reasons for his redundancy is weak. Therefore, the merits of the claim do not weigh in favour of extending time.

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

[19] No relevant submissions were made on this criterion and I consider it to be neutral.

Conclusion

[20]
There are no exceptional circumstances in this case. Mr Harp has not established that the circumstances at the depot have changed since he was made redundant and therefore he lacks a reasonable explanation for the delay in lodging his application. An extension of time will not be granted and the matter must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Harp on his own behalf.

Ms K Evans on behalf of the Respondent.

Hearing details:

2015.

Hearing via telephone:

20 May.

 1   [2011] FWAFB 975.

 2   Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1548].

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