Stuart McKey v Geoffs Tools Pty Ltd T/A Hardwood Mills

[2020] FWC 3950

[2020] FWC 3950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart McKey
v
Geoffs Tools Pty Ltd T/A Hardwood Mills
(U2020/8546)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 28 JULY 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This decision concerns an application by Mr Stuart McKey (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment with Geoffs Tools Pty Ltd T/A Hardwood Mills (Respondent) was terminated with effect on 1 April 2020. The unfair dismissal application was lodged on 20 June 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 23 April 2020. The application was therefore filed 58 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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.2

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5

[10] In his unfair dismissal application the Applicant gave the following explanation for the delay:

“Due to the Covid19, unless you had a job you should not have been travelling. As restrictions have eased and I was able to go and visit. I have found that what he told me is incorrect. He is trading as normal.

As of the 18 June 2020 a new job add for Hardwood Mills is on the MYGOV job site.

…

1. Upon dropping into the business, I have discovered the business is still operating as normal.

2. The 2 casual employees are still working there even though I was told everyone would be terminated (I was Warehouse Manager and a full time employee and feel the casual staff should have been terminated before me).

3. He has received a shipment from China even though he told me the factory was closed.

4. The cancellation of the Agricultural Field Days does not seem to have affected the business.

5. I asked about job keeper and was told he did not want to do it. I have since found out that he the business is not eligible for job keeper as revenue has increased. This contradicts the reason for my termination.

6. A position at Hardwood Mills has been advertised on Jora on the Job Active website on 18th June 2020.I was never approached about filling the position.

7. I was never given a warning about my performance and I was never approached about reducing my wage in these economic times.”

[11] In his oral evidence, the Applicant explained that he was in communication with Mr Lloyd, the owner of the Respondent’s business, by text message, in April and May 2020 in relation to payment for time in lieu he had accrued during his employment with the Respondent. That issue was resolved in early May 2020

[12] In either the first or second week of May 2020, after COVID-19 restrictions on travel were eased, the Applicant attended the Respondent’s warehouse and observed that a shipment of goods had turned up. The Applicant also observed two casual employees still working in the Respondent’s business. The Applicant discussed these matters with his wife but decided not to take any action. However, on about 18 June 2020, the Applicant saw an advertisement on the internet for a job in the Respondent’s business. The advertisement was for a junior casual warehouse assistant. After seeing the advertisement, the Applicant made a decision to lodge his unfair dismissal application, which he did on 20 June 2020.

[13] Mr Lloyd gave evidence that the advertisement was for a much more junior role than the one occupied by the Applicant: the role advertised was for a junior warehouse assistant, whereas the Applicant was employed as a warehouse manager. In addition, the role advertised was a casual position involving limited hours of work. The Applicant’s role with the Respondent was full-time. Mr Lloyd also gave evidence that he could not find anyone to fill the casual role, principally because it was just for a few hours work here and there. Mr Lloyd is doing the work in the Respondent’s warehouse because the cancellation of field days has meant that he is available to do the warehousing work.

[14] I consider that the Applicant has a reasonable explanation for the delay insofar as it relates to the period from his dismissal on 1 April 2020 until he visited the Respondent’s warehouse in the first or second week of May 2020, because COVID-19 restrictions prevented him from visiting the Respondent’s warehouse at an earlier time. The Applicant needed to see whether a shipment of goods had arrived and employees were still working in the Respondent’s warehouse to make an assessment as to whether he believed his redundancy, and the reasons given to him for it, were genuine. However, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay insofar as it concerned the period from his visit to the Respondent’s warehouse in the first or second week of May 2020 until he lodged his application on 20 June 2020. The Respondent’s placement of an advertisement for a junior warehouse assistant position in about mid-June 2020 did not provide an acceptable or reasonable explanation for the delay because that role was at a much more junior level, and involved fewer hours of work, than the Applicant’s position.

[15] The absence of an acceptable or reasonable explanation for a substantial period of the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[16] The Applicant was notified of the dismissal before it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[17] The Applicant accepts that he did not take any action to dispute his dismissal, other than lodging his unfair dismissal application in the Commission. This circumstance does not weigh in favour of the Applicant.

Prejudice to the employer

[18] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[19] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is apparent that the Respondent contends it terminated the Applicant’s employment on the grounds of redundancy. The Applicant contends that his redundancy was not genuine and the Respondent’s business is still operating as normal. The Applicant also points to the Respondent’s advertisement for a new employee on 18 June 2020. These issues involve contested questions of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

[20] In all the circumstances, the merits of the Applicant’s unfair dismissal application are a neutral consideration in my assessment of whether exceptional circumstances exist.

Fairness as between the person and other persons in a similar position

[21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[22] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

Deputy President Saunders

Appearances:

Mr McKey on behalf of himself

Mr Lloyd on behalf of the respondent

Hearing details:

2020.
Newcastle (by telephone):
24 July.

Printed by authority of the Commonwealth Government Printer

<PR721341>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]