Tegan Stockdale v Coates Hire Operations Pty Limited

[2020] FWC 6473

[2020] FWC 6473

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tegan Stockdale
v
Coates Hire Operations Pty Limited
(U2020/14869)

COMMISSIONER WILSON MELBOURNE, 11 DECEMBER 2020

Application for an unfair dismissal remedy – extension of time; whether “exceptional circumstances” – no exceptional circumstances - application dismissed

[1] This decision concerns an application made by Tegan Stockdale alleging unfair dismissal against Coates Hire Operations Pty Limited (Coates). On 21 May 2020, Ms Stockdale was notified in a meeting that her position was redundant, and the Respondent had not identified any redeployment opportunities for her. Ms Stockdale was provided the opportunity to identify any alternative options for the Respondent to consider during the consultation process which ended on 25 May 2020.

[2] Ms Stockdale did not notify the Respondent of any alternative opportunities and requested she cease performing her duties that day, 21 May 2020. The Respondent consented to this request and paid her until 29 May 2020 being the day on which the redundancy took effect. Ms Stockdale’s application for unfair dismissal remedy was lodged in the Fair Work Commission on Sunday, 15 November 2020.

[3] Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that Ms Stockdale’s application was made outside of the statutory time limit, with it having been made 149 days after the expiry of the 21 day time period allowed for by the FW Act, which ended on Friday, 19 June 2020.

[4] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Ms Stockdale’s application. Coates object to the Commission allowing an extension of time for the filing of Ms Stockdale’s unfair dismissal application and, relevant to the merits of her application, contend that her dismissal was a case of genuine redundancy.

[5] This decision deals only with the matter of whether an extension of time should be allowed to Ms Stockdale for the making of her application for unfair dismissal remedy, noting that as a part of this assessment, the Commission must provisionally examine the merits of her application.

[6] Ms Stockdale was represented by Ms Rachel Storey of Rachel Storey & Associates Pty Ltd, and Coates by Ms Jennifer van Bronswijk of Holding Redlich, with each appearing on a grant of permission by me for legal representation pursuant to the provisions of s.596(2) of the FW Act.

[7] Evidence was received from Ms Stockdale on her own behalf and, on behalf of Coates, from Scott Coy, its Regional Manager – Metro General Hire.

[8] In considering an application for an extension of time for the making of an unfair dismissal application, the FW Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion 1 and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.2

[9] I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Ms Stockdale’s case and an extension of time should not be granted for the making of her unfair dismissal application.

BACKGROUND

[10] Tegan Stockdale is 26 years old and was employed with Coates as a Sales Coordinator at their Brooklyn office from 21 August 2017 until her redundancy on 29 May 2020. 3 The Applicant’s duties as Sales Coordinator included forward facing customer interactions dealing with sales and equipment hire and the coordination of equipment deliveries.4

[11] Coates is a large equipment hire company with approximately 160 branches nationally. Amongst other activities the Brooklyn office is a supplier of equipment for the Westgate Tunnel Project in Victoria and had four employees including the Applicant. 5 The site includes a retail section, in which Ms Stockdale worked, and a workshop servicing other Melbourne branches.6

[12] On 20 May 2020, the Respondent announced a significant organisational restructure impacting over 135 positions across the company. The Respondent submitted that the restructure was a result of the effects of the COVID-19 pandemic. 7 The outcome of the restructure was that the Applicant’s role was identified as redundant along with several other roles nationwide.

[13] On 21 May 2020, Coates advised the Applicant in a meeting that her position was redundant and that they did not identify any suitable alternative redeployment opportunities. 8 A consultation process was implemented which occurred between 21 May and 25 May 2020. Ms Stockdale was afforded the opportunity to provide any alternative options for the Respondent to consider during the consultation process. Ms Stockdale did not identify any alternative proposals during the 21 May meeting or in the period prior to 25 May 2020.9

[14] Ms Stockdale at the conclusion of the meeting requested that she finish performing her duties from that day, to which the Respondent agreed and confirmed that she would be paid until the redundancy took effect on 29 May 2020. Ms Stockdale ceased her duties at 10.00AM on 21 May 2020. 10

[15] The Applicant was issued with a letter dated 25 May 2020 confirming that her employment with Coates would end due to redundancy on 29 May 2020.

LEGISLATION

[16] Relevant to the Commission’s consideration of the question on whether to extend the period of time for the filing of the application are the provisions in s.394(3) of the FW Act:

“394 Application for unfair dismissal remedy

(1) ….

(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.”

[17] Pursuant to s.385 of the Act:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[18] Under s.385(d) of the Act, one of the requirements for an unfair dismissal is that it “was not a case of genuine redundancy”.

[19] Section 389 of the Act defines genuine redundancy as follows:

“(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[20] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria.

[21] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”  11 

[22] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 12

[23] In considering whether an extension of time should be granted to Ms Stockdale, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[24] The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 13 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.14 An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.15 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.16

[25] The delay to be considered in matters such as these is the delay in making the application after the expiry of the statutory time limit. In Ms Stockdale’s case the relevant period to be considered is that after the last day for a lodgement to be within time, Friday, 19 June 2020.

[26] Ms Stockdale attributes the delay in making her application to the economic impact of the COVID-19 pandemic.

[27] Ms Stockdale submitted in her written evidence that after her employment with Coates ended on 29 May 2020 she became aware on 9 November 2020 that a position of Sales Coordinator at the Brooklyn office was being advertised by Coates on the Seek recruitment website. 17 In her oral evidence when questioned on the timing, she confirmed she first saw the advertisement on 7 November 2020. She took the view that what was advertised was the same as the position in which she had worked, with the same location and job description. While she thought about applying for the position, she did not do so because when she returned to the advertisement on 9 November 2020, it was no longer displayed.

[28] Ms Stockdale then commenced her application for unfair dismissal remedy, with it being filed in the Commission by her lawyer, Ms Storey, late on Sunday, 15 November 2020.

[29] Coates submitted that Ms Stockdale’s position was genuinely redundant when it dismissed her in May 2020. Mr Coy’s evidence to the Commission included that Coates was significantly impacted by the COVID-19 pandemic, but not so much as to be eligible for the Commonwealth’s JobKeeper subsidies. Between March and May 2020, Mr Coy’s region suffered a 13% decline in revenue. In the later period of August to October 2020, revenue in his region declined by around 8%. Mr Coy’s evidence about the decision to make Ms Stockdale redundant included being instructed by his senior management to review his business unit’s operations and determine structural changes to allow cost savings for the business; and

“23. As Regional Manager, I was required to review my Branches and determine where those structural changes could be made.

24. In conducting this review, I looked at where there was multiple headcount of positions in the Branches in my Region and determined whether by reducing the headcount the Branch could still efficiently function.

25. From this process, I determined that I could reduce headcount in my region as follows:

a. Sales Coordinator – Brooklyn (one headcount)

b. Yard person – Hastings (one headcount)

c. Sales Coordinator – Morwell (one headcount)

d. Yard person – Dandenong (one headcount)

e. Sales Coordinator – Port Melbourne (one headcount)

f. Sales Coordinator – Oakleigh (one headcount)

g. Fitter mechanic Relief – Melbourne (one headcount)

26. I am aware from my leadership meetings and internal correspondence that a number of positions were impacted nationally; approximately 130.” 18

[30] Coates then put in place a process to realise the indicated savings, which included discussions with Ms Stockdale about her potential redundancy. The chronology with that decision is summarised above. Mr Coy gave the following evidence particular to his decision and selection of Ms Stockdale for redundancy:

“27. … I determined that there was an additional Sales Coordinator position at Brooklyn which was surplus to the business requirements at that time, given the reduction in trading activity.

28. I considered that the Sales Coordinator duties could be absorbed between the Branch Manager, Senior Sales Coordinator and the remaining Sales Coordinator. With a reduction in trading activity, it made sense to reduce a customer facing role as we were servicing less customers at that time.

29. I assessed Ms Stockdale according to the skills matrix. Ms Stockdale received the lowest result.

30. I considered redeployment opportunities for Ms Stockdale, but unfortunately there were none across the Melbourne Metropolitan region. Due the organisation wide restructure, all the roles that were vacant were cancelled by the business because recruitment was on-hold (except by approval from the CEO).

31. The only vacant role we had available was a Heavy Rigid Driver at Dandenong. Ms Stockdale did not have a Heavy Rigid licence, so I determined she could not be redeployed to that position.

32. I made the decision to make Ms Stockdale’s position redundant based on the information I had available on declining revenue. There was no clear timeframe on when revenue would improve. The COVID-19 situation was continuing to unfold.” 19

[31] Coates submitted that its later decision to advertise a Sales Coordinator position at Brooklyn in similar or identical terms to the position formerly held by Ms Stockdale was as a result of changed, more positive, trading circumstances. During the Victorian Stage 4 Restrictions, which came after Ms Stockdale’s dismissal, Coates continued to review its operating model with it being contended that “[t]he Respondent is continuing to make changes to operating model to quickly respond to changing business conditions, including revising the Branch structure across the network.” 20 Following an internal transfer in October 2020 Coates decided to amend the management structure at the Brooklyn office, with Mr Coy giving the following evidence about the decision;

“40. The existing Brooklyn Workshop Manager accepted a promotion at the Campbellfield branch.

41. This created a vacant Workshop Manager position. I reviewed the existing structure of the Brooklyn Branch and determined that I would combine the “Branch Manager” and “Workshop Manager” positions into one position, creating a flat management structure which I considered would create greater efficiency and cohesion throughout the Brooklyn site.

42. With deciding not to replace the Workshop Manager position, I reviewed and considered how I could best utilise that vacant headcount.

43. Once Stage Four restrictions ended, we started to experience an increase in customer and trading activity late October to early November, to the levels we experienced pre-COVID-19. With this in mind, I determined that the vacant headcount at the Brooklyn Branch could be better utilised in a customer facing role to support the increased activity.

44. In or around 5 November 2020 I raised a requisition to recruit for a Sales Coordinator at Brooklyn and a member of Coates Hire’s recruitment team placed an advertisement on Seek on 6 November 2020

45. From 6th November 2020 to 12 November 2020, the advertisement was on “Seek.com.au”. Ms Stockdale did not apply.

46. I did not contemplate nor envisage the creation of a flat management structure at the time I determined Ms Stockdale’s position was redundant. The impacts of the COVID-19 pandemic were uncertain.” 21

[32] The Applicant submitted that the Victorian “lockdown” period particularly from August 2020, reduced the number of employment advertisements and when she located the Seek advertisement for the role at Coates that she formed the view that her dismissal was not a genuine redundancy and filed the unfair dismissal application. She stated the reason for the delay being made in the following way:

“15 . The reason for the delay is submitted to be the extreme economic circumstance of the pandemic caused by the Coronavirus. In Victoria, as this Honourable Commission is aware, Victoria was essentially on 'lockdown' in one form or another, but strictly so, from August 2020. Therefore, no real economic activity occurred during this time. Advertising for employment positions was rare, and in some areas, non-existent, as businesses did not know when to hire staff and have essentially been making these decisions post-lockdown.

16. As soon as the Applicant saw her position being advertised, after asking if she could return to work after the pandemic had ended/abated, she filed an unfair dismissal application, on the basis that her position was not one of a genuine redundancy but was an unfair dismissal which was 'harsh, unjust or unreasonable.' Respectfully, there was no delay.” 22

[33] Ms Stockdale directly relied upon the COVID-19 pandemic as the exceptional circumstance being “out of the ordinary course”, “unusual”, “special” or “uncommon”:

“… the time Victoria was in lockdown should be excluded in the calculation of days regarding the lodgement of unfair dismissal applications where there have been cases of dispute of a genuine redundancy that come to light at the end of the lockdown when businesses are returning to normal and considering their staffing arrangements.” 23

[34] Ms Stockdale attributed the delay in making her application to the economic impact of the COVID-19 pandemic.

[35] Coates submitted that the grounds relied upon by Ms Stockdale for her late application have no foundation:

•  In relation to the contention that seeing the job advertisement in November 2020 caused her to believe that her redundancy was not genuine, Coates submitted:

“The Applicant’s submission appears to be premised upon a view that the ‘right’ to dispute the dismissal arose on 9 November 2020, when she alleges to have seen her position advertised, as the reason for the delay in filing the Application. This is incorrect.

…

The 21 day timeframe under section 394(2)(a) of the FW Act is not subject to, nor does it refer to, the Applicant being in a position to question the genuineness of the dismissal. As such, the Applicant’s awareness of the advertisement on 9 November 2020 at best only relates to the merits of the Application, ...” 24

•  With regards to the Applicant’s submission that the Victorian COVID-19 “lockdown” period should be excluded from the Commission’s consideration of the 21-day time limit, Coates argued the submission should be rejected:

“The Applicant has not directed the Commission to any section of the FW Act that enables the Commission to exclude the lockdown period. This is because there is no statutory basis upon which to exclude this period of time.” 25

[36] Coates also argued that the submission there was no delay in Ms Stockdale causing her application for unfair dismissal remedy to be filed once she had seen the November job advertisement is “patently incorrect and must be rejected”. 26

[37] Ms Stockdale attributed the delay in making her application to the economic impact of the COVID-19 pandemic, as well as arguing that the Commission’s consideration of the filing delay should disregard the period of delay occasioned by the pandemic. An examination of Ms Stockdale’s case though would suggest that such is a mischaracterisation of the reason for the filing delay, which is more appropriately described as being caused by her initially reluctantly accepting dismissal for reason of redundancy, and then rejecting that reasoning when she later saw Coates advertise a job which she regarded as identical to her own.

[38] I agree there is no capacity for the Commission to find, in this case, that Ms Stockdale’s application was filed out of time because of the pandemic. With one possible exception, the factors she points to are not things which occasioned the delay, but instead factors associated with the economy generally, which mean alternative employment may not be as prevalent as it was. The exception is Ms Stockdale’s contention that economic activity slowed; if it is argued that a slowing economy meant it took longer for Coates to advertise a replacement for Ms Stockdale, its ruse to be discovered and for her to then file an unfair dismissal action, then I accept such as an explanation for the delay. If that is what is meant, it is better characterised as simply an explanation that there was no cause for Ms Stockdale to question her redundancy until she saw the advertisement.

[39] I do not accept Coates’ argument that Ms Stockdale’s change of mind about the genuineness of her redundancy is not a satisfactory explanation for the delay in making her application since that is a matter of merit. Although the contention about genuine redundancy being a matter of merit is obvious, the contention does not inform whether it may be relied upon as an explanation for a late application. Plainly it may, and it would be an injustice if it could not. New information about the purported reasons for one’s dismissal may be uncovered 1 day, 21 days, or 5 months after termination, and it is at that point an applicant may turn their mind to a contest about the dismissal. They would have no reason to do so at an earlier time. Taken to its logical point, the argument that the matter of the genuineness of redundancy is a matter of merit and not of explanation for delay would mean that no-one uncovering a non-genuine redundancy could challenge their dismissal 21 days afterwards, since in the absence of some other compelling reason for their filing delay, they would be unable to satisfy the Commission about s.394(3)(a).

[40] Having seen the advertisement on Saturday 7 November 2020, Ms Stockdale first thought she would apply for the job, however was unable to do so when she returned to it on 9 November 2020, since by that time the advertisement had been taken down. There was then a delay between 9 November and 15 November 2020 when Ms Storey filed an unfair dismissal application on her client’s behalf. While noting that Coates argued this is in itself a delay which must be accounted for and considered by the Commission, I also note there is no particular explanation before me about what occurred over the final week.

[41] After consideration of all of the material before me, the reason for the delay in Ms Stockdale’s application is in two parts; the period between the date of her termination of employment on 29 May 2020 and when she first saw the November Advertisement, on Saturday, 7 November 2020, and then the period between that date and 15 November 2020 when her unfair dismissal application was made. I find that the first period is satisfactorily explained by Ms Stockdale having no reason to question the genuine redundancy ground given for her dismissal until she saw an advertisement for what she regarded as “her” job – “my exact same position, at the exact same location, job description, everything was the same”.

[42] I find that the second period is explained by her returning to the advertisement in order to apply for it; finding that it was no longer displayed; forming the view that the reasons given for her purported redundancy now seemed non-genuine; and then retaining and instructing a lawyer for the preparation of an unfair dismissal application.

[43] The first period leans to a finding in the Applicant’s favour, if appropriately coupled with my consideration of the other criteria in s.394, there are exceptional circumstances and that an extension of time may be warranted. The second period, and the fact there is no adequate explanation about why the week was required to draft and file an unfair dismissal application leans against an exercise of discretion in the Applicant’s favour, but perhaps not decisively so.

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

[44] Ms Stockdale became aware that Coates was contemplating making her position redundant in a meeting on 21 May 2020 and concedes she received Coates’ letter dated 25 May 2020 confirming her employment was to end for reason of redundancy. 27 This is therefore not a circumstance where the Applicant only became aware of Coates’ decision at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[45] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 28

[46] There is no material before the Commission to indicate the Applicant attempted to contest the dismissal, other than by making the application the subject of these proceedings.

[47] Consideration of this criterion therefore does not support a finding of exceptional circumstances.

4. Prejudice to the employer (including prejudice caused by the delay)

[48] The delay in the filing of the application is 149 days. The Respondent submitted Ms Stockdale’s claim is without merit and that responding to it will place an unwarranted burden on the company as it also responds to its current trading challenges. Coates also submitted it will be “prejudiced by the Applicant’s attempt to hold the Respondent liable for a managerial decision that was made on the facts available to the business in May 2020 based on circumstances six months later and at a time when business and economic conditions have undergone significant change. The Applicant’s attempt to do so is inconsistent with the policy behind imposing a time limit on claims”. 29 While accepting Coates submission that mere absence of prejudice is an insufficient basis to grant an extension,30 I note the Respondent has not provided evidence of specific prejudice it may face if the application proceeds.

[49] Consideration of this criterion resolves against a finding of exceptional circumstances, albeit not definitively so in the absence of specific and identifiable prejudice.

5. The merits of the application

[50] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[51] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters. 31 Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.32

[52] Ms Stockdale’s case includes that having been made redundant in May 2020 she questioned whether it was a genuine redundancy after seeing the November Advertisement. The fact of the advertisement and her belief that it was for the job she once performed – “my exact same position, at the exact same location, job description, everything was the same” – caused her to believe Coates had not been candid with her when it dismissed her. That belief was reinforced by Coates response to these proceedings which included evidence from Mr Coy that Ms Stockdale had been selected for redundancy after his application of a skills matrix in which she received the lowest result. Ms Stockdale’s case about the dismissal not being a genuine redundancy also relies, it seems, to some extent on an argument that Coates had not sufficiently complied with the obligation to consult with her about the redundancy or to genuinely consider her redeployment.

[53] Coates rejected these submissions, arguing that it sufficiently complied the procedural steps of consultation and consideration of redeployment. Further, it genuinely required cost savings in May, owing to a downturn in its business, and that such factors led to Ms Stockdale’s position being decisively not required and thereby a genuine redundancy. Although Ms Stockdale was selected for redundancy after application of a skills matrix, which showed her to have the lowest result, it was not the case that she was a poor performer or that she was dismissed for reason of poor work performance.

[54] When she was dismissed Ms Stockdale was provided with payment of 1 month’s pay in lieu of notice of termination, as well as a payment of 8.32 weeks’ severance pay. 33 Those payments are in excess of the benefits payable under the National Employment Standard, which in Ms Stockdale’s case would be payment of 2 weeks’ notice and 6 weeks’ severance pay.34

[55] If the matter were to proceed, a decision in Ms Stockdale’s favour would first require a finding that her dismissal was not a genuine redundancy. It would be unlikely, on the basis of the material presently before the Commission, that a finding would be made that Coates had insufficiently consulted with her, or that it had not considered redeployment. Mr Coy’s evidence suggests that both considerations took place. While perhaps not perfect, or to the standard Ms Stockdale may have desired, the evidence appears likely to resolve in favour of Coates on these matters. If that is the case, Ms Stockdale’s case would largely rest on persuading the Commission that Coates did not dismiss her for the reason that it “no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise” (s.389(1)(a)) and that instead it concealed its true reasons for dismissal. Other than Mr Coy’s evidence that a skills matrix was used by him to identify Ms Stockdale as the candidate for redundancy, there is no evidence that her performance was an operative factor in Coates’ decision to dismiss her.

[56] It should also be noted that Ms Stockdale has not argued that Coates was not financially impacted by the COVID-19 pandemic, or that it did not have a need to reduce its operating expense or headcount.

[57] The assessment of the redundancy decision must be taken at the time of the termination, with the Commission accepting businesses have faced unique challenges this year because of the COVID-19 pandemic; see, for example, Maree O’Flaherty v Clear Dynamics Pty Ltd t/a Clear Dynamics[2020] FWC 4564, [85] – [88]; Samuel McClelland v Kamori Australia Pty Ltd T/A Lone Pine Koala Sanctuary, [2020] FWC 3707, [72] – [73]. The Commission has also accepted that a decision to make someone redundant at one point of time does not preclude a change of circumstance and creation of the position again soon after the redundancy decision; see for example, Lakhan v United Petroleum Pty Ltd[2020] FWC 4970, [59].

[58] Dismissal from employment at any time is a distressing and potentially life-changing event, and especially so at a time the economy is contracting. Nonetheless I cannot see within the material now before me that Coates was not justified in reducing its costs, including by dismissing Ms Stockdale, and I consider that a full hearing of the application is likely to reinforce such a finding. At the same time, I doubt the Commission would be critical of Coates’ later decision to re-employ a Sales Coordinator at Brooklyn. That advertisement was issued about 23 weeks after Ms Stockdale’s position ended, for which she was compensated with a payment of about 12 weeks. Even if the gap between the two was closer, or even closed, the Commission would unlikely be critical of an employer’s business responsive decision-making given the very large uncertainties that have existed this year.

[59] As a result, and absent findings that Coates had concealed its true reasons for her dismissal, it is unlikely a full hearing would lead to findings in Ms Stockdale’s favour.

[60] At best, and despite me thinking it unlikely, it is possible the Commission may find that her dismissal did not meet the technical requirements of a genuine redundancy, but that it was a redundancy nonetheless. If that were to occur, the Commission would then need to consider whether her dismissal was an unfair dismissal, and if so, what remedy may be ordered. In the context of Coates business where the relevant region was reporting a decline in year-on-year sales of 8% as recently as October, I doubt the Commission in a full hearing would be persuaded that an order for reinstatement was appropriate. If the Commission considered compensation, as an appropriate remedy, it is likely that the quantum would be no more than the redundancy payments already made to Ms Stockdale, and that the payments already made would be deducted from any order, leaving either a zero compensation order, or one for only a miniscule amount.

[61] Consideration of the above factors lead me to conclude the merits of Ms Stockdale’s case are low and do not support a finding of exceptional circumstances such as would lead to an extension of time for the making of her application.

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

[62] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 35 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.36 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for the same underlying issue.37

[63] The decision to make the Applicant’s job redundant was open to the Respondent and taken at a time of great uncertainty, due to the COVID-19 pandemic. The dismissal would likely be found to be a genuine redundancy on the indicia of section 389.

[64] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Stockdale.

[65] Accordingly, pursuant to the s.394(3) of the Act and the reasons set out in terms of the criteria, the overall circumstances, were not considered to be “exceptional circumstances”. The discretion to grant an extension of time for the making of Ms Stockdale’s application is therefore not exercised.

[66] As a result, Ms Stockdale’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.

COMMISSIONER

Appearances:

Ms R. Storey for the Applicant
Ms J. van Bronswijk for the Respondent

Hearing details:

2020
Melbourne (via video conference);
8 December.

Printed by authority of the Commonwealth Government Printer

<PR725080>

 1   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].

 3   Exhibit A1, Applicant’s Outline of Submissions: Extension of Time, 30 November 2020, [1]; Exhibit A3, Amended Applicant’s Outline of Submissions: Extension of Time, 3 December 2020, [1].

 4   Exhibit A1, [5]; Exhibit A3, [5].

 5   Exhibit A1, [3]; Exhibit A3, [3].

 6   Exhibit R2, Witness Statement of Scott Coy, 7 December 2020, [11] – [13].

 7   Form F3 Employer Response Form, 25 November 2020, item 2.2.

 8   Exhibit A5, Amended Witness Statement of Tegan Stockdale, 3 December 2020, [4].

 9   Form F3 Employer Response Form, 25 November 2020, item 2.2.

 10   Exhibit A5, [5].

 11   Nulty v Blue Star Group, 2011, 203 IR 1, [13].

 12   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].

 13   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

 14   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].

 15   Ibid, [40].

 16   Ibid, [41].

 17   Exhibit A1, [12]; Exhibit A3, [13].

 18   Exhibit R2.

 19   Ibid.

 20   Form F3 Employer Response Form, 25 November 2020, item 2.2.

 21   Ibid.

 22   Exhibit A3.

 23   Ibid, [18].

 24   Exhibit R1, Respondent’s Outline of Submissions, 7 December 2020, [24] – [28].

 25   Ibid, [29].

 26   Ibid, [30].

 27   Exhibit A5, [6].

 28   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

 29 Exhibit R1, [35] – [36].

 30   Ibid, [37]; with reference to Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, pp.299 – 300.

 31   Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].

 32   Haining v Deputy President Drake (1998) 87 FCR 248, [250].

 33   Exhibit A2, Applicant’s Document Bundle, 30 November 2020, Attachment 5.

 34   At the time of termination Ms Stockdale was not over 45 years of age and had worked for Coates for more than 2 years and less than 3 years.

 35   Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

 36   Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].

 37   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].