Stuart Luscombe v The Trustee for United Petroleum Unit Trust

[2020] FWC 5059

[2020] FWC 5059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Stuart Luscombe
v
The Trustee for United Petroleum Unit Trust
(C2020/4449)

COMMISSIONER YILMAZ MELBOURNE, 23 SEPTEMBER 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time denied.

[1] Mr Luscombe was employed as a retail area manager with The Trustee for United Petroleum Unit Trust (United Petroleum) and was still subject to his probationary period of employment when his employment was terminated on 9 May 2020 by telephone. He was sent correspondence after the telephone conversation confirming the termination of employment dated 11 May 2020.

[2] On 6 June 2020, Mr Stuart Luscombe lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against The Trustee for United Petroleum Unit Trust (United Petroleum).

[3] Mr Luscombe initially lodged an unlawful termination application on 27 May 2020 and submits that he became aware on 5 June 2020 that the correct form for a general protections’ application was not the one already filed, therefore he took steps to immediately file the correct form.

[4] Mr Luscombe is seeking severance pay, reimbursement of expenses and compensation.

[5] I scheduled the extension of time hearing for 30 July 2020. At the hearing, Mr Luscombe was self-represented, and I granted legal representation for United Petroleum.

[6] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 7 days after the 21-day statutory time limit.

Applicant’s submissions

[7] Mr Luscombe says that he suspects that management used COVID-19 as a reason for the termination of retail area managers including his position, and that it was not a genuine reason. When questioned at the hearing, Mr Luscombe says he suspected that United Petroleum terminated the employment of retail area managers to save on wages by paying lower rates of pay to those employees that were engaged to perform the duties previously performed by them.

[8] Mr Luscombe further submits that he was aware that his position was advertised 1 week after his termination of employment. No evidence was provided of the advertisements, but he conceded that the advertised position was titled retail operations specialist and not retail area manager. Mr Luscombe, submits that his comparison of the duties in the advertisement with his own position demonstrated the same range of duties. 1

[9] Mr Luscombe also submits that he became aware that contractors or internal auditors filled the new roles previously performed by of retail area managers. 2

[10] Of the contraventions raised, Mr Luscombe stated that management knew of his disability at the time of his recruitment and he says he raised his concerns when he felt that COVID-19 social distancing measures were not complied with. He further submits that United Petroleum’s selection of employees who were to replace retail area managers was motivated by race.

[11] Mr Luscombe relies on expectations from management to do what was necessary to get the job done as an explanation concerning contraventions with respect to s.343 and s.344 and/ or his contract of employment. An illustration of the behaviour he considers relevant to this was the requirement to be on call 24/7 and to be onsite during renovations even though he had concerns regarding the COVID-19 restrictions in place. He submits that he was selected for redundancy because he raised his concerns which was his workplace right. 3

[12] Mr Luscombe submits the behaviour towards him and his section for redundancy was a contravention of:

•  S.340 - Protection of Workplace Rights

•  S.343 - Coercion of workplace rights

•  S.344 - Undue influence or pressure, and

•  S.351 - Discrimination was breached in relation to his disability.

Respondent’s submissions

[13] United Petroleum submit that Mr Luscombe’s position was made redundant during his probationary period of employment, as part of a wider company retail area manager restructure, across Victoria and mostly on a national basis.

[14] It denies that Mr Luscombe’s direct reports were aware of his disability, and nevertheless disputes that the reasons for the redundancy had anything to do with any disability he may have. United Petroleum further raise the point that the application form and outline of argument do not disclose alleged breaches of the general protections provisions, therefore it says that the application “appears to be an attempt to pursue a jurisdictionally-barred unfair dismissal application under the guise of a general protections application.” 4

[15] United Petroleum raised the jurisdictional objection on the grounds that the application was lodged after the 21-day statutory time limit and submits that Mr Luscombe had not demonstrated exceptional circumstances warranting the granting of an extension of time in relation to his general protections’ application.

Consideration

[16] General protections applications involving dismissal must be made within 21 days.

[17] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[18] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 5 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 6

[19] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[20] The general protections involving dismissal application was lodged with the Commission on 6 June 2020, 7 days late. I am satisfied that dismissal was communicated verbally to Mr Luscombe on 9 May 2020.

[21] Mr Luscombe submits that he filed an unlawful termination of employment application within the 21-day statutory time limit but was informed that he filed his application on the wrong form. Mr Luscombe submits that he filed this application promptly after being advised.

[22] He submits that he contacted the Fair Work Ombudsman (FWO) immediately after his employment was terminated and was informed by them of the 21-day time limit for an unfair dismissal application. Mr Luscombe did not submit any evidence of his communication with the FWO, but during the hearing he read out correspondence received from the FWO of 27 May 2020, which informed him of his options.  7 I do not consider the communication as read out can be described as legal advice.

[23] Other than the alleged error of filing the wrong application after consulting with the FWO, Mr Luscombe provided no further explanation nor any evidence for the delay. Mr Luscombe refers to the failure of United Petroleum replying to his correspondence as a reason, however, he filed the unlawful termination of employment application within time, and this does not support his contention.

[24] United Petroleum submit that Mr Luscombe relies on recollection and that recollection is unreliable as different dates were referred to in the application material and during the hearing. They also raise doubt regarding Mr Luscombe’s reliance on FWO advice, as no evidence was tendered to substantiate any advice given that may be relied on for the reason of delay. Mr Luscombe submits that should he have more time, he could provide material relating to his inquiries with the FWO. However, the FWO is not known to be in the business of providing legal advice, and more time to submit further information will not in my view alter the weight of his submissions concerning this consideration.

[25] In the correspondence of 15 May 2020, Mr Luscombe stated he was consulting his legal advisers and FWO, however, in his closing submissions he says he took no legal advice other than consulting the FWO. There is nothing in Mr Luscombe’s submissions to give comfort that the advice given by the FWO will influence the conclusion on considerations required for an extension of time.

[26] United Petroleum argue the Mr Luscombe bears the onus of a proper and complete case 8, and the submissions made by him are not enough to invoke the jurisdiction of the Commission. United Petroleum relies on authorities where ignorance of the law in filing the wrong application is insufficient to grant an extension of time.9 United Petroleum submit the matters in this case are indistinguishable from the matters cited by the Deputy President in Eric Felipe v Your Bookkeepers Online Pty Ltd [2020]FWC 1620.

[27] While Mr Luscombe submits that he obtained advice, he also says he was aware of the 21-day time limit but became aware that he filed the wrong form. No evidence was tendered in respect of any of his submissions and it is not apparent from the submissions whether the error in filing the form was simply due to ignorance of the law. Despite whether Mr Luscombe made inquiries of the FWO or if he was ignorant of the law in respect of type of application, neither are exceptional reasons for the delay to justify an extension of time. Therefore, I cannot find this consideration to weigh in his favour.

Steps taken to dispute the termination

[28] It is not in contention between the parties that Mr Luscombe disputed his termination of employment. On 15 May 2020, Mr Luscombe wrote to United Petroleum questioning his final pay including additional payments that he says he is entitled to, he questioned the reason for the redundancy during his probationary period, he drew to United Petroleum’s attention the advertised roles that he has seen which he believed he was suitable for, and he asserted that he was taking action for breach of the NES, bullying, harassment and discrimination. The correspondence also makes reference to Mr Luscombe obtaining legal advice.

[29] United Petroleum concede that Mr Luscombe took steps to challenge his termination of employment and expected some form of legal challenge following the correspondence of 15 May 2020. On this consideration, I find in Mr Luscombe’s favour.

Prejudice to the employer

[30] Mr Luscombe submits that granting an extension of time will not cause United Petroleum any disadvantage or unfairness.

[31] United submit that it has incurred expense in defending its position in an extension of time hearing, in a matter in which it says it lacks merit. 10

[32] I do accept that should an extension be granted it would be an inconvenience to United Petroleum, but it should be noted that it was not a long delay in the filing of the application.

[33] While I am not satisfied that United Petroleum demonstrated prejudice, in line with established precedent, even the mere absence of prejudice is an insufficient basis to grant an extension, therefore this consideration does not weigh in United Petroleum’s favour.

Merits of the application

[34] The parties dispute the facts concerning the termination of employment. United Petroleum submits the termination was a genuine redundancy. Mr Luscombe disputes it was a genuine redundancy and further contends that his employment was terminated in contravention of general protections.

[35] Mr Luscombe submits the three reasons given without any evidence for his termination of employment was a company restructure, that his performance was not a factor, and that his employment was terminated during his probation period. He submits he sought further explanation from United Petroleum, but it was not forthcoming.

[36] United Petroleum maintains that the termination of employment is a genuine redundancy. The form submitted by Mr Luscombe effectively deals with unfair dismissal rather than a general protection application. However, it is noted that there is a passing comment that Mr Luscombe has MS. The focus of Mr Luscombe’s argument goes to considerations of unfair dismissal and does not go to the considerations of a general protection application. The material in the application includes what appears to be a portion of the unlawful termination application which is irrelevant to a general protection. 11

[37] United Petroleum confirms that all retail area manager positions in Victoria, and mostly nationally, were restructured due to the effects of COVID-19 on the business. United Petroleum denies Mr Luscombe’s disability was general knowledge, and even if it was known, it denies the termination had any relevance to it. It notes that in oral submissions Mr Luscombe does not draw that link either. 12

[38] United Petroleum admits that Mr Luscombe was made redundant during his probationary period of employment and that his performance was not a consideration. It submits that the general protections application has no realistic hope of success. It submits that it is an unfair dismissal application cloaked as a general protection claim, in an attempt to invoke jurisdiction. 13

[39] The termination due to restructure is not contested, however, Mr Luscombe submits it was not genuine because the role remains, and it is performed by a race of individuals on a lower rate of pay. The submissions relating to alleged contravention of protections to challenge the genuineness of the redundancy were scant and unsupported. I do note that in the operational restructure that the retail area manager position was made redundant and Mr Luscombe was among the group of employees affected by the restructure. United Petroleum also took offence at the oral allegation that Mr Luscombe was made redundant due to his race, such an allegation was not made in his application material, nor in his correspondence to his employer when he challenged his termination of employment. 14

[40] I am not influenced that the application in respect of alleged contraventions based on race, disability or workplace rights has any prospect of success. In respect to alleged contraventions based on s. 343 and s.344 as articulated by Mr Luscombe, it lacks any link to his termination, and by his own admission go to his observations of managements’ expectation of, or directions given to retail area managers.

[41] Mr Luscombe was surprised by the termination and clearly disappointed by the decision after his short period of employment. Neither Mr Luscombe’s performance or capability were questioned or identified as a consideration in the redundancy. Unfortunately for Mr Luscombe, the effects of COVID-19 resulted in United Petroleum taking steps to address operational costs which led to his redundancy. The merits of redundancy, which Mr Luscombe questions is more an argument related to the jurisdiction of an unfair dismissal. I note that Mr Luscombe’s employment did not meet the minimum employment period for protection of unfair dismissal, therefore there was no scope for him to test the genuineness of his redundancy.

[42] On balance of the submissions and evidence I have formed the view that Mr Luscombe lacks a meritorious application, therefore this consideration does not weigh in his favour.

Fairness between the person and other persons in a like position

[43] Neither party addressed this consideration adequately. Consequently, I find this consideration neutral.

Conclusion

[44] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[45] Having considered on balance all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Mr S. Luscombe for himself

Mr A. McClean, Ms B. Melideo and Mr R. Millar for the Respondent

Hearing details:

2020
Melbourne (by telephone)
30 July

Printed by authority of the Commonwealth Government Printer

<PR722951>

 1   Transcript at 25:41 and 40:27.

 2   Transcript at 27:11.

 3   Transcript at 28:28.

 4   Respondent’s Response to the general protections’ application Form F8A at Q5.1.

 5   [2011] FWAFB 975.

 6 Ibid at [13].

 7   Transcript at 32:22.

 8   Transcript at 57:38.

 9   Eric Felipe v Your Bookkeepers Online Pty Ltd (part of Moore Stephens NSW), [2020] FWC 1620.

 10   Respondent’s outline of argument at Q1g.

 11   Transcript at 1:04:32.

 12   Transcript at 1:10:22.

 13  Transcript at 1:22:23.

 14   Transcript at 1:13:31 and at 1:15 30.