Tuwairua Savage v Onesteel Recycling Pty Limited T/A Onesteel Recycling Pty Limited

[2016] FWC 1172

[2016] FWC 1172

The attached document replaces the document previously issued with the above code on 23 February 2016.

Associate to Commissioner Platt

24 February 2016

[2016] FWC 1172

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tuwairua Savage
v
Onesteel Recycling Pty Limited T/A Onesteel Recycling Pty Limited
(U2016/3558)

COMMISSIONER PLATT ADELAIDE, 23 FEBRUARY 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Savage has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with the Onesteel Recycling Pty Ltd (Onesteel).

[2] Mr Savage’s application was lodged on 1 January 2016. The applicant advised the FWC that his employment was terminated with effect from 17 August 2015. In respect of the extension of time application, the applicant asked that the following information be taken into account:

“Firstly there was no reference made in my termination/redundancy letter from Onesteel Recycling dated 17th August 2015 that the “Fair Work Commission” was available to me should I require your services. To add to this, there was no warning or direct communication with me from our HR department-Helen Lloyd to assist me through this redundancy process and in particular to discuss other job opportunities within Onesteel group of companies for me or reference to the “Fair Work Commission…

Secondly a significant changeoccurred when on the 7 December 2015, it came to my knowledge that my former employer Onesteel Recycling had appointed Julie Hooper to a trading account representative position effectively replacing me. ….

Thirdly Ian Hunter a fellow trading account representative at Onesteel Recycling was to retire in March 2016 take 1 years annual leave and return but will not be replaced. The significant change here his retirement was brought forward to December 2015.Therefore why was my role made redundant?

Due to these significant changes and more awareness of the “Fair Work Commission” through friends and the internet, I now make this application outside the 21 calendar days and seek your consideration for a conciliation conference.”

[3] On 11 January 2016, my Associate corresponded with both Mr Savage and Onesteel and advised that the extension of time issue would be considered at a telephone conference on 4 February 2016. Substantial information about the extension of time issue was provided to the parties. Mr Savage was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 28 January 2016. Onesteel was required to submit a Form F3 (Employer Response) by 18 January 2016.

[4] Additional information was received from Mr Savage by way of statutory declaration dated 27 January 2016.

[5] In correspondence dated 25 January 2016, Ms Kashmirian from Australian Industry Group, on behalf of Onesteel opposed the extension of time application.

[6] Mr Savage participated in the telephone conference. Onesteel Recycling was represented by Ms Kashmirian. A sound file record of this telephone conference was kept.

[7] At the conclusion of the conference, the Mr Savage was given until 12 February 2016 to file any additional material and submissions, and Onesteel was required to file any response by 17 February 2016.

[8] On 11 February 2016, Mr Savage filed an additional submission together with and extract from his 2006 contract of employment and a copy of a price list dated 23 January 2014 which described him as an Account Manager.

[9] On 17 February 2016, Onesteel filed an additional submission and a supplementary statement by Mr Beaton (State Manager South Australia).

[10] The applicant’s submission relevant to the out of time considerations are summarised below:

● in his first submission, Mr Savage stated that prior to the redundancy his role was Business Development and Trading Manager, as detailed in his contract of employment dated 10 July 2006 which was provided to the Commission;
● Mr Savage referred to some organisational changes that occurred in 2013 and stated that his role was never clearly defined or signed off;
● the company rejected his proposal that the retirement of another employee be brought forward and that he be redeployed to that role;
● at the time of his redundancy in August 2015, there were two redeployment opportunities in Victoria and these opportunities were not discussed with him;
● as result of the absence of a HR representative at the meeting between Mr Savage and his employer on 17 August 2015, Mr Savage was not aware of the remedies available to him and in particular the 21 day deadline for filing an unfair dismissal application;
● Mr Hunter a fellow account representative, who was to retire in March 2016, left Onesteel Recycling in December 2015 and Mr Savage was not offered that role;
● in his second submission, Mr Savage contended his role was that of an ‘Account Manager’ relying on such a description next to his name on a One Steel Vendor quotation dated 23 January 2014;
● on 7 December 2015, Mr Savage received information (a copy of a One Steel Vendor quotation dated 3 December 2015 where Julie Hooper is described as Account Manager) and that as a result, he believed that Ms Hooper had assumed his previous role and that his redundancy was not genuine;
● Mr Hooper then took steps to lodge an unfair dismissal application (in his view) as soon as possible;
● the application was lodged on 1 January 2016; and
● Mr Savage contended the grant of an extension of time would allow for further investigation and discussions between the parties, and an opportunity for representation to be obtained.

[11] The respondent’s position can be summarised as follows:

● Mr Savage had failed to demonstrate exceptional circumstances within the meaning of s.394(3) of the FW Act and the application should be rejected;
● the redundancy was genuine within the meaning of s.389 of the FW Act.
● aat the time of the termination on 17 August 2016, Mr Savage was engaged as Ferrous Trading Manager and Business Development and was primarily involved negotiating the purchase of ferrous steel from existing clients and seeking new clients;
● Mr Savage was never employed as an Account Manager. The document produced by Mr Savage in support of this contention that he was employed as an Account Manager was computer generated and inserted the title Account Manager in regardless of the actual position title. Copies of these documents for other persons with different titles (Mr Beaton and Ms Hooper) were submitted, all of these documents detail the persons role as Account Manager;
● the termination of Mr Savage’s employment was a genuine redundancy resulting from a decline in market conditions due to a global oversupply of steel. The Respondent made 15 roles redundant including the Mr Savage’s;
● as a result of the restructure, Mr Savage’s duties were removed and any duties remaining were absorbed into the Trading Manager role, to whom Mr Savage had previously reported.
● The applicant’s role was one of 17 roles removed and there were no roles available to which Mr Savage could have been redeployed;
● Mr Savage was not engaged as an Account Manager and the document produced in support of this contention was computer generated using the “Weighbridge” system which inserts the title “Account Manager” regardless of the person’s true title. Copies of these documents for other persons with different titles (including Mr Beaton) were submitted, all of the documents detail the title as Account Manager;
● Mr Hunter retired from the employer in December 2015 and Ms Hooper was appointed to replace Mr Hunter in his role as Account Executive, upon his retirement in December 2015. Ms Hooper was not placed in Mr Savage’s role;
● the application was made 117 days out of time, and 26 days after the information concerning the engagement of Ms Hooper became known to him;
● the absence of a HR representative at the termination meeting is not a relevant consideration; and
● Mr Savage has failed to provide an adequate explanation for the delay.

[12] My conclusions about the extension of time issue were reached after considering all of the information before me.

[13] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

...

394(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).

391(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

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

(d) the merits of the application; and

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

[14] On the information before me, I am satisfied that the application was made some 117 days after the date of termination and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[15] Mr Savage submits that the reasons for the delay are based on his assessment on 7 December 2015, that his position was not redundant and his role was being undertaken by Ms Hooper. Having made that assessment however, Mr Savage failed to lodge the application until 1 January 2016 some 26 days later.

[16] I have considered the extent to which Mr Savage’s position is comparable with that circumstance considered by Sams DP in Cross and others v Banana Coast Community Credit Union Ltd T/A BCU (Banana Coast). 2 In that matter, at first instance, the Deputy President considered each of the factors referenced in s.394(3). With respect to the applicant’s subsequent awareness that their termination of employment may not have been a result of a genuine redundancy, he concluded:

“[51]In my view, this is a rare and unusual case. I am satisfied that an honestly and reasonably held belief that an earlier redundancy may not have been genuine, and the belief is based on plausible information, may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act. It follows that I reject Ms Paterson’s submission that a dismissal cannot be unfair based on matters that occur after the dismissal took effect.”

[17] The Deputy President later recognised the significant component of the delay in that matter, which related to inaction on the part of the applicant’s union, and characterised this as representative error. He ultimately concluded that the requisite circumstances for an extension of time had been made out.

[18] I note that the Deputy President’s decision in that matter was the subject of an appeal. In that decision 3 the Full Bench concluded that:

“[19] In our view, the decision under appeal properly considers each of the factors required to be considered under s.394(3) of the Act. The Deputy President considered the representational error in the context of the factor whether the employees took action to dispute their dismissals - not in relation to the reasons for the delay. We see no error in this approach. The arguments of error are not strong and essentially amount to disagreement with the consideration of the factors required to be taken into account. We have not been satisfied that it is in the public interest to grant permission to appeal. Permission is denied and the application for permission to appeal is determined accordingly.”

[19] In Rowley v RSL (QLD) War Veterans Homes Ltd T/A RSL Care 4 Commissioner Simpson concluded:

“[21]The principle reasons given for the delay relied upon by the Applicant is she was misled at the time of her termination about her redundancy and subsequent information gained post the redundancy points to the redundancy not being genuine. Having considered the material put before me I am inclined to accept the Respondents submission that the new material that has come into the knowledge of the Applicant well outside the statutory timeframe for filing an unfair dismissal application is not substantial information on which a reasonable inference could be drawn to support a view that the Applicants redundancy was not genuine. On that basis I conclude the reason given for the delay is not an exceptional circumstance.”

[20] Those two decisions, demonstrate the inherent difficulty associated with the consideration of late unfair dismissal applications, in terms of the requirement to establish exceptional circumstances, where an employee asserts that a redundancy was not genuine but only became aware of that redundancy at a later time. As the Full Bench decision in Banana Coast confirms, the potential exists for an extension of time to be granted on the basis that the FWC concludes that an employee could, after the 21 day period honestly and reasonably understand that their redundancy was not genuine. It seems to me that there are a number of factors which may become relevant in the assessment of the particular circumstances. Firstly, it would generally be necessary that there is a clear indication that the redundancy was a sham. Secondly, the duration of the time involved becomes important in that, the longer the period of time, the greater the potential for subsequent changes in the employer’s business which reflect different business circumstances. It would be unfair to effectively stop a business from being able to adjust its structure to accommodate unforeseen events.

[21] In this case, I have attached substantial significance to the advice provided by Onesteel to the effect that the role undertaken by Ms Hooper differs from the functions previously undertaken by Mr Savage. It does not appear that the roles overlap.

[22] In addition, I am not satisfied that the description of Mr Savage or Ms Hooper on a Onesteel Recycling Vendor Quotation as “Account Manager,” establishes that Mr Savage was engaged as an Account Manager, or that Ms Hooper assumed the role previously undertaken by Mr Savage. I accept that the title “Account Manager” is automatically inserted as part of the price list generation process regardless of the title of the person generating this last.

[23] Consequently, I am not satisfied that Mr Savage has established that it is likely that his redundancy was not genuine, such that his circumstances should be regarded as exceptional. The question of representative delay does not arise and accordingly, there is a significant difference between Mr Savage’s situation and that which applied in Banana Coast.

[24] A further consideration in this respect relates to the time delay involved. In this case the delay is substantial, and that having received the information relied upon to argue that the redundancy was not genuine, Mr Savage then waited an additional 26 days before pursuing this matter. No satisfactory explanation was given for the delays.

With respect to the claim that the employer should have redeployed him in to an interstate role and/or offered him the role occupied by Mr Hunter, this claim could have been pursued at or within 21 days from the time of termination.

[25] In relation to the claim that Mr Savage was not aware of the 21 day time limit, as a result of the absence of a HR representative at the meeting on 17 August 2015, I am unable to regard this circumstance as exceptional. Information concerning unfair dismissal processes and time limits is freely available on the Internet and by telephone from the Fair Work Ombudsman and the Fair Work Commission. This claim could have been pursued at or within 21 days from the time of termination.

[26] Having considered the entirety of the material before me, I am not satisfied that Mr Savage has established that the reason for the significant delay in this matter represented an exceptional circumstance. An extension of time for the lodgement of an unfair dismissal application does not simply follow from an employee becoming aware of doubts about the validity of a redundancy.

[27] Mr Savage became aware of the termination of his employment on the day on which it took effect. Apart from this application he did not take other action to dispute the termination of his employment. A delay of over 4 months raises the prospect of prejudice to the Respondent, who had submitted that a key witness, the National HR Manager left their employment in October 2015. The fact that the witness has left employment does not preclude her from being summoned to attend as a witness, and accordingly I have determined that prejudice to the respondent is a neutral matter.

[28] As to the merits of the application, whilst the information before me does not enable me to form a definite conclusion, if Onesteel adduces evidence to support the factual matrix in their submission about the restructuring of its operations, and the extent to which it consulted with Mr Savage and considered redeployment opportunities, it is unlikely that the application would be successful. However, as that evidence is unable to be tested I have not regarded the merits of the application as a factor which does not favour the extension of time.

[29] I am not satisfied that considerations of fairness relative to other persons in similar positions is a relevant consideration in this matter.

[30] On the balance, I have concluded that the material before me does not establish that Mr Savage’s circumstances can be regarded as exceptional, so as to warrant an extension of time. The application will be dismissed on this basis and an Order 5 giving effect to this decision will be issued.

COMMISSIONER

Appearances (by telephone):

T Savage, applicant.

P Kashmirian of Australian Industry Group, for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

February 4.

 1   [2011] FWAFB 975.

 2   [2012] FWA 7681.

 3   [2012] FWAFB 10165.

 4   [2014] FWC 5326.

 5   PR577318.

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<Price code C, PR569401>