Suzanne May v SBG Administration Services Pty Ltd T/A Blueprint Homes Pty Ltd
[2018] FWC 2866
•6 JUNE 2018
| [2018] FWC 2866 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Suzanne May
v
SBG Administration Services Pty Ltd T/A Blueprint Homes Pty Ltd
(U2018/2612)
DEPUTY PRESIDENT MASSON | MELBOURNE, 6 JUNE 2018 |
Application for an unfair dismissal remedy - whether genuine redundancy – information obtained after redundancy - whether extension of time should be granted for out of time application.
Introduction
[1] Ms Suzanne May (the Applicant) had been employed by Blueprint Homes Pty Ltd (the Respondent) since 16 December 2013. She was advised on 25 October 2017 that she was to be made redundant effective 26 October 2017. The Applicant was told that her position of Sketch Design Supervisor was no longer required due to a restructuring and merging of the Respondent’s Drafting and Sketch departments. There was no dispute that the date of termination was 26 October 2017 or that the Applicant was notified of her dismissal on 25 October 2017.
[2] The Applicant alleges that the termination of her employment by the Respondent was unfair. She further alleges that she became aware on 9 March 2018 that the Respondent had refilled a position in the Sketch Design team which, in addition to information she had obtained through other sources, fuelled her belief that her redundancy had not been genuine.
[3] A completed Form F2 – Unfair Dismissal Application form was filed by the Applicant with the Fair Work Commission (Commission) on 14 March 2018. The application was therefore not made within 21 days after the dismissal took effect on 26 October 2017, as required under s 394(2)(a) of the Fair Work Act 2009 (the Act).
[4] The Respondent objected to the application on two grounds. Firstly, that the application had not been made within 21 days of the dismissal taking effect and secondly, that the Applicant had incorrectly identified the employer and was not an employee of the identified Respondent.
[5] Determination of the extension of time application and the Respondent’s jurisdictional objection was set down for a hearing/conference before me on 25 May 2018.
[6] After taking into account the wishes of the parties as to the way in which the Commission would consider and inform itself in relation to the application, I decided to conduct a conference pursuant to s 398 of the Act to determine the extension of time application and jurisdictional objection raised by the Respondent.
[7] The Applicant appeared at the conference and gave evidence on her own behalf while the Respondent was represented by Ms Preetie Boler (Compliance Manager) and Mr Will Masci (Sales Manager) who are both employed by, and gave evidence on behalf of, the Respondent.
Statutory provisions
[8] The relevant statutory provisions are to be found at s 394 of the Act and provide as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
[9] It is clear from the statutory provisions that the Commission can extend the time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances under s 394(2)(b). In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s 394(3). Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
Amendment of application
[10] Faced with the Respondent’s objection to the Applicant having not been an employee of the named Respondent, the Applicant sought to amend her application during the hearing so that it correctly identified the Respondent as Blueprint Homes WA Pty Ltd. On her original F2 – Unfair Dismissal Application form, the Applicant identified the Company as “SBG Administration Services Pty Ltd Trading as Blueprint Homes Pty Ltd”.
[11] There was no contest that the Applicant was employed by Blueprint Homes WA Pty Ltd at the time of her dismissal and on that basis I have granted the Applicant’s request to amend her application in the terms sought pursuant to s 586(a) of the Act.
[12] Having granted the Applicant’s request to amend her application so that it correctly identifies her employer at the time of her dismissal, the Respondent’s jurisdictional objection that the Applicant was not an employee of the Respondent is dismissed.
Evidence and submissions
Applicant’s case
[13] The Applicant submitted that she understood that her application was well outside of the 21 day period but that there were exceptional circumstances that would justify the Commission exercising its discretion and granting an extension of time.
[14] The Applicant gave evidence that she commenced employment with the Respondent on 16 December 2013 as a Senior Architectural Draftsperson. 1 She was subsequently promoted to the position of Sketch Design Supervisor2 in March 2014 at which point she supervised the Sketch Design team. The Applicant continued in this role until she was terminated on the grounds of redundancy which took effect on 26 October 2017. The grounds stated for the decision taken to make the Applicant redundant were detailed in the letter of termination dated 25 October 2017 and relevantly provided as follows:
“RE: TERMINATION OF EMPLOYMENT BY REASON OF REDUNDANCY
As you are aware, the company is required to review its operational requirements in view of the market down-turn and recorded slow sales.
We regret to inform that as a result of the recent restructure in relation to the merging of the Drafting and Sketch Departments, your position as Sketch Design Supervisor is no longer required and has become redundant. Unfortunately, this means your employment will terminate effective the 26th October 2017.
…” 3
[15] The exceptional circumstances advanced by the Applicant were summarised by her as the action taken by the Respondent to back-fill a position in February 2018 within the Sketch Design team. This action by the Respondent, along with information sourced by the Applicant from other persons including Mr Andrew Christopher (Andrew), confirmed the Applicant’s suspicion that her termination on the grounds of redundancy had not been genuine.
[16] The Applicant also submitted that the lack of genuineness of her redundancy was further reinforced by a number of actions of the Respondent. The Applicant stated that:
(i) The rationale for the Applicant’s redundancy as stated in her letter of termination, dated 25 October 2017, was that of a merging of the Drafting and Design teams resulting in the removal of her position. The Applicant claimed that the stated restructure has not occurred.
(ii) The duties formerly undertaken by the Applicant as the supervisor of the Sketch Design team have now been assumed by Mr Woodall within the Sketch Design team.
(iii) The Respondent had advertised on Seek 4 and with Bandura Headhunters5 for the position of Senior Sketch Designer in October 2017, at the same time that she was made redundant.
(iv) The backfilling of a position of Sketch Designer in February 2018, which the Applicant did not contend was a direct replacement for her role, was made in order to backfill and enable Mr Woodall to step up and fill the supervisory position formerly held by her.
(v) Contrary to the foreshadowed organisational restructure in which the Drafting Manager was to have assumed responsibility for the Design team, interviews conducted for the Sketch Designer position which was filled in February 2017 were undertaken by the Sales Manager, Mr Will Masci.
(vi) That the volume of work in early 2017 was high 6 in the Design team and that the volume of work was likely to have continued, notwithstanding the periodic and seasonal fluctuations in work volumes.
(vii) The disingenuous actions of the Respondent in creating and then recruiting a new role within the Sketch Design team in early 2017 with a different job title to allow for a later redundancy to be made with respect to Ms Nat Taylor. 7
[17] The Applicant rejected the Respondent’s evidence 8 that she was aware of a general downturn in activity which had been evident from mid-2017. The Applicant stated that the lack of work referenced in her emails was routine and reflected the nature of the Sketch Design team’s work which involved fluctuating levels of work activity and tight turn-around times of less than 48 hours. She stated that in these circumstances, it was not unusual for there to be short notice and tight timeframes for work completion within the Design team and intervening periods where there was little work. She went on to state that it was her belief that there had been no reduction in Sketch Design team workload and that there was simply a normal seasonal downturn in late 2017.
[18] The Applicant claimed that approximately 3.5 weeks after her dismissal she was introduced to a friend of Ms Boler, Andrew, with whom she subsequently formed a relationship with. The Applicant stated that Andrew subsequently told her that Ms Boler had previously stated to him that the Respondent had wanted to get rid of the Applicant. 9 The Applicant introduced as evidence a series of undated text messages exchanged between herself and Andrew in support of these claims.10
[19] The Applicant also claimed that further evidence of the Respondent’s intention to terminate her employment on grounds other than that of redundancy could be seen in the Respondent’s conduct of one-on-one interviews with members of her team prior to her termination in 2017 without her knowledge. The Applicant claimed that those interviews were conducted for the purpose of “digging up dirt” on her. In support of these claims, the Applicant referred to various text messages exchanged between her and former colleagues, Ms Nat Taylor 11 and Mr Dean Woodall12, both dated 15 March 2018.
[20] On becoming aware of the back-filling of her role on 9 March 2018 and obtaining information at the same time from other sources, the Applicant lodged her unfair dismissal application within four days on 13 March 2018. She stated that her timely lodging of her unfair dismissal claim once she became aware of additional information justified an extension of time being granted by the Commission.
[21] In support of her case, the Applicant made reference to a decision of the Commission which she submitted was analogous to her circumstances. The case was that of Williams v The Building Connection Group P/L 13in which Commissioner Wilson found that exceptional circumstances existed such as to justify the granting of an extension of time. Relevant to the present case was the Commissioner’s finding that the Applicant had made a timely application once she had become aware that her redundancy may not have been genuine.
Respondent’s case
[22] The Respondent submitted that the application had no merit as the Applicant’s dismissal was a bona fide redundancy arising from organisational restructuring for which the Applicant had received seven weeks’ redundancy pay and three weeks’ pay in lieu of notice. The Respondent rejected the Applicant’s primary contention that her position had been simply replaced by Mr Woodall backfilling her role.
[23] The Respondent submitted that there were a number of factors that supported its contention that the dismissal of the Applicant was a genuine redundancy of which evidence was adduced including:
(i) The Respondent was a residential builder in Western Australia (WA) that had been affected by the WA residential housing construction downturn and was forced to reduce costs which had been ongoing since 2016. 14
(ii) Sales volumes of the Respondent had dropped by 40 per cent over the four financial years from 2014/2015 to 2017/2018 which placed pressure on the Respondent to reduce cost. The following sales figures were provided by the Respondent:
• 2014/2017 – 500 homes sold
• 2015/2016 – 360 homes sold
• 2016/2017 – 355 homes sold
• 2017/2018 – 296 homes sold (with 5 weeks of current financial year to go) 15
(iii) The lack of work for the Sketch Design team in the period leading up to the termination of the Applicant was evidenced by the Applicant’s own emails. 16
(iv) The Applicant’s knowledge and acceptance of the need for reductions in the Sketch design team’s numbers in response to reduced sales volumes as evidenced by her emails to Mr Masci dated 20 June 2017 17 and 29 September 2017.18
(v) The organisational restructure had proceeded with team members within the Sketch Design team each now assuming and sharing additional responsibilities created by the removal of the Sketch Design Supervisor position with Mr Woodall “taking the lead.” 19 The Respondent rejected the Applicant’s submission that Mr Woodall had stepped up into her former role.
(vi) The new Sketch Designer that commenced employment on 21 February 2018 was a junior position and was recruited on salary of $55,000 20 and was not a direct replacement for the Applicant’s former position. The reduced cost of the more junior Sketch Designer role compares to the former salary cost of the Supervisor role held by the Applicant of $95,000 which was the highest in the Sketch Design team.21
(vii) The Applicant was one of six employees to be made redundant by the Respondent during 2017 and but for the resignation of 19 other employees during 2017, more redundancies would have been required to manage costs. 22
(viii) The redundancies implemented in October 2017 within the Sketch Design team resulted in the staff numbers declining from 4 full-time and 1 part-time to 3 full-time staff in October 2017. That number was subsequently increased to 4 full-time staff in February 2018 with the recruitment of the more junior Sketch Designer.
(ix) The capacity of the Sketch Design team to operate effectively without the Sketch Design Supervisor position, described by the Applicant in an email dated 25 August 2017, 23 was assessed as effective during the period of the Applicant’s leave in late August 2017. This reinforced the Respondent’s belief that the altered structure without the Supervisor position could operate effectively.24
(x) The Respondent sought to re-brand and boost its marketing and advertising in 2017 in an effort to maximise sales volumes in a depressed market. This required a preservation of its Sketch Department’s capability to support sales efforts but needed to be done on a reduced-cost base as the marketing and sales efforts may not translate to increased sales. 25 This led to a decision of the Respondent to reduce its labour costs through removal of the Applicant’s Supervisor role and one other position in the Sketch Design team in late 2017 and the subsequent filling of a more junior role in February 2018.
[24] With respect to the particular contentions of the Applicant, the Respondent submitted and gave evidence that:
(i) Implementation of the full restructure of the Drafting and Sketch Design teams had been frustrated by the Drafting Manager’s recent serious illness which had seen him take leave for an extended period. 26
(ii) The Sketch Design team members liaised directly with Sales Team members and their Manager, Mr Masci, on sales related matters and with drafting and technical staff in relation to technical matters. 27
(iii) Mr Masci participated in the interview of candidates for the Sketch designer position in February 2018 as the Sketch Designer was going to be required to work closely with the Sales team and that technical questions had been obtained from the Drafting Manger. 28
(iv) Mr Woodall, while taking a lead within the Sketch Design team, was not filling the role formerly held by the Applicant as evidenced by the distribution of tasks 29 identified by the Respondent during cross-examination by reference to the Applicant’s former Position Description, dated 31 July 2014.30
(v) The advertisement for a Senior Architectural Sketch Designer position in October 2017 31 was placed in accordance with a standing arrangement that the Respondent had with the Bandura recruitment agency to periodically test the market and no such position was filled in any event.32
(vi) The claims and evidence of the Applicant regarding statements made by Ms Boler to Andrew regarding the Respondent’s intention to dismiss the Applicant was rejected and was “not true, inaccurate, misleading/misconstrued” 33 and hearsay not supported by direct evidence from Andrew.
(vii) The claims and evidence of the Applicant regarding the Respondent’s conduct of one on one meetings with Sketch Design team members prior to the Applicant’s termination were denied by the Respondent and stated to be “untrue, inaccurate, misleading/misconstrued information” and hearsay not supported by direct evidence from the particular individuals named. 34
Consideration
[25] In considering an application for an extension of time, the Commission must have regard to and weigh each of the considerations set out in s 394(3) of the Act in determining whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which to make application. The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 35 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]
Section 394(3)(a): the reason for the delay
[26] One of the matters that must be considered is whether an acceptable reason for the delay in making the unfair dismissal application exists.36 It requires the Commission to consider whether there is a credible reason for the period that the application was delayed.37
[27] The Applicant was dismissed on 26 October 2017 and filed her application on 14 March 2018 which is 139 days after her dismissal and 118 days beyond the prescribed 21 day period.
[28] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.38
[29] The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic39:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
[30] The explanation offered by the Applicant for the delay in filing her application is that she became aware on 9 March 2018 that the Respondent had recruited a Sketch Designer in February 2018, some 4 months after she and another member of the Sketch Design team of the Respondent had been made redundant on 26 October 2017.
[31] Knowledge of the Sketch Designer’s recruitment in March 2018, along with information sourced from other parties, confirmed the Applicant’s belief that her redundancy may not have been genuine. The Applicant then filed her unfair dismissal application on 11 March 2018 which she contended was done in a timely manner having become aware of the new information.
[32] It is clear that the Applicant is aggrieved at having been made redundant from her former position of Sketch Design Supervisor with the Respondent in circumstances where she subsequently become aware of the recruitment of a Sketch Designer in February 2018 into the Sketch Design team. As a result of this and other information relied on by the Applicant there is little doubt that the Applicant believes her redundancy was not genuine.
[33] A mere belief on the part of the Applicant is not sufficient in my view to weigh in favour of an “exceptional circumstance” that would justify granting an extension of time. The belief should not only be held but soundly based on plausible information that has arisen after the 21 day filing period has passed. I now turn to consider the basis for the Applicant’s belief.
[34] The Applicant did not contend that the Sketch Designer who commenced in February 2018 was recruited to back-fill her role, however, she did contend that the recruitment of the Sketch Designer enabled Mr Woodall to step up and fill the Supervisor role formerly held by the Applicant. She also contended that Mr Woodall was doing the same role she had been doing and pointed to other indicators of that including the organisational structure which she claimed had not changed despite the merging of the Drafting and Sketch Design teams being the stated rationale for her redundancy.
[35] Balanced against the Applicant’s contentions were the submissions and evidence of the Respondent which can be summarised as follows. The Respondent’s sales volumes were significantly down over a period of four years and there was an ongoing focus on cost reduction. While wanting to preserve the capability within the Sketch Design team to support sales and marketing efforts, the Respondent resolved to reduce the Sketch Design team’s costs and chose to do so by removing the Sketch Design Supervisor role and one other part-time role in October 2017 and then reallocating supervisory tasks/responsibilities within the Sketch Design team.
[36] I am satisfied on the evidence that the Respondent recruited a Sketch Designer in February 2018. I am further satisfied, and it was not contested, that the position was not a direct replacement for the Applicant’s role. It was clearly a more junior role and incurred a significantly lower salary cost than the Applicant’s former role. Evidence on the recruitment of that role was consistent with the stated objective of the Respondent, that of preserving Sketch design capability while reducing cost through restructuring the Sketch Design team.
[37] As to the Applicant’s contention that in the wake of the Applicant’s dismissal Mr Woodall had simply stepped up into the Supervisor role, there was little evidence to support that. In fact, the weight of evidence in my view was to the contrary with a redistribution of tasks across the Sketch design team implemented. While the full implementation of the foreshadowed merging of the Drafting and Sketch design teams may not have occurred, I am satisfied that Mr Woodall, while “taking the lead” within the team on some matters, was not performing the same or similar role to that of the Applicant prior to her dismissal.
[38] I am also satisfied on the evidence that the Applicant was well aware of the sales performance challenges confronting the Respondent and that cost management and redundancies were necessary within the business. The fact that the Applicant had been directly discussing the redundancy of one of her team members, Ms Nat Taylor, with Mr Masci in advance of the Applicant’s own redundancy reveals the reality of the Applicant’s knowledge.
[39] As regards the claimed motivation of the Respondent to be rid of the Applicant for reasons other than that of genuine redundancy, the only evidence adduced was that of text message exchanges between the Applicant and Andrew and her former colleagues Ms Taylor and Mr Woodall. None of those parties were called to give evidence and consequently the text messages have little if any probative value due to their hearsay nature. In any event that hearsay evidence was directly rebutted by the direct evidence of the Respondent witnesses who I found credible. I am consequently not persuaded that the Respondent had set about a strategy to get rid of the Applicant for reasons other than that of genuine redundancy as contended by her.
[40] It is appropriate at this point to consider some other cases that have dealt with analogous circumstances. I refer firstly to Williams v The Building Connection Group P/L which was relied on by the Applicant. In that case, Ms Williams was made redundant and some 3 months later became aware that her former employer was advertising for a position that was substantially the same as Ms William’s former position. The Respondent did not contest the Applicant’s contention that there were exceptional circumstances. The timely application by the Applicant where the particular new information had emerged was considered by Commissioner Wilson as weighing in favour of “exceptional circumstances”.
[41] In Banancoast Community Credit Union 40, Deputy President Sams similarly considered whether emerging information regarding the recruitment of roles substantially the same as three retrenched roles would weigh in favour of “exceptional circumstances” that would justify an extension of time. In that matter, the Deputy President was satisfied that the particular circumstances may constitute “exceptional circumstances”.
[42] In each of the cases referred to above, it was significant that the roles that were recruited shortly after employees were made redundant were substantially the same as the roles formerly filled by the retrenched employees. Those circumstances are clearly distinguishable from that of the present matter where the Sketch Designer role that was recruited some 4 months later was a more junior role and where the Applicant’s former supervisor role duties had been reallocated across the remaining team members.
[43] Having regard to the evidence before me, I am not satisfied that the information that the Applicant sought to rely on was plausible or could reasonably lead to a conclusion that her redundancy was not genuine. Consequently, while her belief may have been genuine, it cannot in my respectful opinion have been soundly based on plausible information. Most telling in my view is my finding that her former role has not been replaced in the same or similar terms.
[44] In the circumstances of this case, I am not satisfied that the Applicant has presented a credible reason for the 118 day delay in the filing of her unfair dismissal application. This weighs against a finding that exceptional circumstances exist that would justify an extension of time under s 392(2) of the Act.
Section 394(3)(b): whether the person first became aware of the dismissal after it had taken effect
[45] The Applicant was notified of her dismissal in a meeting on 25 October 2017 and was aware that it would take effect on 26 October 2017. She also received a letter advising her of her termination due to redundancy on the same day. As she was aware of the dismissal on the day it took effect, the Applicant had the full 21 days to file her application. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(c): any action taken by the person to dispute the dismissal
[46] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.41
[47] The Applicant took no action to contest the dismissal, other than lodging her unfair dismissal application. In the circumstances, I regard this as a neutral consideration.
Section 394(3)(d): prejudice to the employer (including prejudice caused by the delay)
[48] Prejudice to the employer will weigh against granting an extension of time.42
[49] The Respondent submitted that it would suffer prejudice for a range of reasons including that would it would be prevented from properly managing its business having regard to resources and business needs, would incur cost and risk, and would be exposed to unplanned liabilities.
[50] I am not persuaded that the prejudice claimed by the Respondent is out of the ordinary in circumstances of a contested unfair dismissal for which an out of time application has been made. It is therefore a neutral consideration.
Section 394(3)(e) the merits of the application
[51] The particular circumstances of this case and the dispute between the parties about the nature of the termination of the employment relationship between Applicant and Respondent requires me to make findings on questions that go to the heart of the merits of the unfair dismissal application. This is not the usual course in a Conference/Hearing of a jurisdictional objection where the unfair dismissal application is out of time.
[52] When the 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 Kornicki v Telstra-Network Technology Group 43 it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”
[53] As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case” 44 for the purpose of determining whether to grant an extension of time to the applicant to make their Application.
[54] This application is distinguishable from Kyvelos v Champion Socks Pty Ltd. The Applicant and the Respondent both led evidence and there was the opportunity for cross-examination of them both on the question of whether or not the Respondent had recruited to back-fill the Applicant’s position following the Applicant’s termination. As I have already found when considering the reason for the delay in filing the unfair dismissal application, I am not satisfied that the Applicant’s position has been replaced in the same or similar form as held by her prior to her dismissal.
[55] While this is a question going to the heart of the merits of the unfair dismissal application, it was also central to the determination of the jurisdictional objection that the unfair dismissal application of the Applicant is out of time.
[56] While I have made some findings in relation to material before me going to the merits of the case, I am not able to make a final assessment as clearly there are factual disputes between the parties that have not been tested. I consequently consider this criterion to be neutral.
Section 394(3)(f): fairness as between the person and other persons in a similar position.
[57] In Wilson v Woolworths, 45 it was said of this consideration:
“It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically. 46
[58] More recently the question of fairness as between the Applicant and other persons in a similar position has been considered in Morphett v Pearcedale Egg Farm, 47 as follows:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
[59] No submissions were made by the Applicant on this issue and in any case I consider this criterion to be neutral in the present circumstances where the application concerns one individual.
Conclusion
[60] The 118 day delay in filing of the application for unfair dismissal was substantial.
[61] In considering whether exceptional circumstances exist, the conduct of Applicant throughout the period after dismissal is relevant to whether an extension of time should be granted.
[62] Having taken into account the matters referred to in paragraphs [25]-[58] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for the application to be made. While the loss of a job in circumstances of redundancy is likely to have had profound implications for the Applicant, the circumstances were not out of the ordinary course, unusual, special or uncommon and I am not satisfied a reasonable explanation for the delay has been provided. None of the other criteria weigh in favour of a finding of exceptional circumstances.
[63] The application for an extension of time is refused and therefore the Applicant’s unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ms S. May on her own behalf.
Ms P. Boler and Mr W Masci on behalf of the Respondent.
Hearing details:
2018
Melbourne
25 May
Printed by authority of the Commonwealth Government Printer
<PR607291>
1 Exhibit A4, Agreement between Suzanne May and Blueprint Homes WA Pty Ltd, effective from 16 December 2013.
2 Exhibit A5, Agreement between Suzanne May and Blueprint Homes WA Pty Ltd, effective from 1 March 2014.
3 Exhibit A11, Termination letter dated 25 October 2017. .
4 Exhibit A7, Seek advertisement for ‘Senior Architectural Sketch Designer – Residential’.
5 Exhibit A8, Bandura Headhunters website advertisement.
6 Exhibit A2, Witness statement of Ms Suzanne May, dated 18 May 2018 at paragraph [5].
7 Ibid at paragraphs [8]-[11].
8 Exhibits R12, R13, R14, R15, R16, R17.
9 Exhibit A2 at paragraph [16].
10 Exhibit A14.
11 Exhibit A12.
12 Exhibit A15.
13 [2017] FWC 30.
14 Exhibit R9, Witness Statement of Mr Will Masci, dated 4 May 2018 at paragraph [2] – [3].
15 Transcript at PN304 – PN314.
16 Exhibits R12, R13, R14, R15, R16, R17.
17 Exhibit R6.
18 Exhibit R7.
19 Exhibit R2, Witness Statement of Mr Will Masci, dated 16 May 2018 at paragraph [4(d)-(e)].
20 Exhibit R18, Employment Agreement.
21 Exhibit R9 at paragraph [7].
22 Exhibit R3, Witness Statement of Ms. Preetie Boler, dated 17 May 2018 at paragraph [8].
23 Exhibit R5.
24 Exhibit R2 at paragraph [4(c)].
25 Exhibit R9 at paragraph [11(a)-(d)].
26 Transcript at PN266.
27 Exhibit R2 at paragraph [4(d)-(e)].
28 Exhibit R9 at paragraph [11(e)].
29 Transcript at PN418 – PN429, PN453-PN454 and PN463-PN475.
30 Exhibit R11, Job Description of Design Supervisor dated 31 July 2014.
31 Exhibit A8.
32 Exhibit R2,at paragraph [5(a)].
33 Exhibit R3 at paragraph 4.
34 Ibid at paragraph [6].
35 (2011) 203 IR 1.
36 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
37 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.
38 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].
39Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].
40 Rodney Cross, Karin Thompson and Denis Payne v Bananacoast Community Credit Union T/A BCU[2012] FWA 7681.
41 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
42 Ibid.
43 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
44 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
45 Wilson v Woolworths[2010] FWA 2480.
46 Ibid at [29].
47 Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29].
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