Tobias O'Hehir v Lansol Nominees Pty Ltd
[2024] FWC 2307
•29 AUGUST 2024
| [2024] FWC 2307 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.365—General protections
Tobias O’Hehir
v
Lansol Nominees Pty Ltd
(C2024/4897)
| COMMISSIONER YILMAZ | MELBOURNE, 29 AUGUST 2024 |
Application to deal with contraventions involving dismissal–jurisdictional objection - application made outside the prescribed 21 days –whether there are exceptional circumstances -extension of time granted
This is the written reasons of a decision delivered ex tempore on 29 August 2024.
Mr Tobias O’Hehir (Applicant) commenced employment with Lansol Nominees Pty Ltd (Respondent) on 21 October 2019. Mr O’Hehir was employed as the Practice Manager Commercial Disputes.
The Applicant made an application for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act).
A general protections application involving dismissal must be made within the 21-day statutory time limit. The Applicant’s employment was terminated on 24 June 2024 and the application made on 16 July 2024. This means the application is one day outside the statutory time limit.
On 29 August 2024, this matter was listed for extension of time hearing. Following receipt of written submissions and submissions made at hearing, an extension of time was granted, and the parties were directed into private conference. This decision provides the reasons given for the extension of time.
The Act[1] allows the Commission to consider extending the period within which an application for a general protections application involving dismissal may be made if it is satisfied that there are exceptional circumstances.
The legislation
As is evident from the text of s.366 (2) of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay,
· any action taken by the Applicant to dispute the dismissal,
· prejudice to the Respondent including prejudice caused by the delay,
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[2]
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 or unprecedented, nor do they need to be very rare.[3] I must be satisfied that, taking into account section 366 (2) that there are exceptional circumstances.
I now consider these matters in the context of the Application.
Reason for the delay
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. Extensions of time have been granted where there is representative error.
The application was one day late after the Applicant’s Representative miscalculated the timeframe and advised the Applicant that the due date was 16 July 2024. The Applicant relied on this advice and instructed his representative to file the application on 16 July 2024.
Representative error depending on the circumstances may be sufficient reason if the delay is due to the representative and the applicant is blameless. Consistent with the authority in Robinson v Interstate TransportPL[2011] FWAFB 2728 the facts of this matter show the delay was due to the Applicant’s Representative and not the Applicant.
I also observe that the Respondent does not object to the extension of time on the basis of representational error.
This consideration therefore weighs in favour of an extension.
Having considered the reason for the delay, I am mindful that the reason for the delay is not in itself required to be an exceptional circumstance. Further it is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
Action taken by the Applicant to dispute his dismissal
Turning next to the question of the action taken by the Applicant to dispute his dismissal. The evidence was that the Applicant promptly engaged solicitors and the Respondent was on notice that solicitors for the Applicant were engaged. I am further satisfied that the Respondent was contacted by the Applicant’s Representative.
I am satisfied that the Applicant took action to dispute his dismissal and in the circumstances this consideration weighs in favour.
Prejudice to the employer
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an application for an extension of time. Neither party contends there is any prejudice or disadvantage to be considered by the late application.
Regardless, a lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[5] Therefore this is a neutral consideration in the extension of time.
Merits of the application
In cases such as this, where the substantial merits of an application are not fully examined, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me.
On 24 June 2024 the Applicant’s employment was made redundant. The Respondent contends that on 4 June 2024, the Applicant was informed that following a review of the operational requirements of the Commercial Disputes function that the role of Practice Manager was no longer required. A period of consultation followed before the dismissal on 24 June 2024. The Respondent submits that no alternative position was found during the period of consultation and Mr O’Hehir’s employment ceased on 24 June 2024 with payment of notice in lieu and severance payment.
The Applicant contends that the dismissal was not a genuine redundancy, but contrived because of the Applicant’s disability and the exercise of workplace complaints and inquiries concerning a range of matters which are not necessary to repeat in this decision. It is submitted that Mr O’Hehir was a high performing employee but as he raised complaints and inquiries this deteriorated the relationship with his manager. He submits that his duties were redistributed to the point that his position description no longer matched his duties and he further refers to events of exclusion due to his disability. Mr O’Hehir relies on contravention of protections pursuant to ss.340, 351 and 352 of the Act.
While the Applicant submits there are serious questions to be tried, the Respondent denies any contravention of general protections and states that the dismissal was a genuine redundancy. It is apparent from the submissions and materials tendered that there is contest of both the facts and the law.
It is not possible to examine the facts nor is it necessary in an extension of time application. In these circumstances I consider this merit a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. 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.
The Applicant submits it would be unfair to not extend the time for the application and the Respondent did not make any detailed submissions on this consideration. No matters of fairness with other persons in a like position were identified, however, in consideration of consistency with principles applied by this Commission, representative error where the applicant is blameless is a consistent principle for extension. For this reason, this is a consideration weighing in favour of the application.
Conclusion
Having considered the submissions, witness statements and other evidence presented by the parties, I am satisfied that exceptional circumstances justify an extension of time. I am required to take into account my findings in relation to each of the considerations contained in s.366 of the Act. The reason for delay, action taken to dispute the dismissal and fairness weigh in favour, while prejudice and merit I find neutral. Consequently, on balance of the matters in s.366 (2), exceptional circumstances warrant an extension of time to 16 July 2024.
Accordingly, the general protections application involving dismissal will proceed to conference.
COMMISSIONER
Appearances:
T O’Hehir, the Applicant, with E Aitken and M Hassan of SLF Lawyers for the Applicant.
J Riekert and S Rosengarten for the Respondent.
Hearing details:
2024.
Melbourne (via Microsoft Teams):
August 29.
Final written submissions:
Applicant, 19 August 2024
Respondent, 26 August 2924
[1] Fair Work Act 2009 (Cth), s.366(2).
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[3] Ibid
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
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