Unfair dismissal, redundancy and time limits

It is quite common for an employee whose employment has been terminated on the grounds of redundancy to see or hear of his or her job being advertised by the former employer. The paradox of this of course is that this may occur after the 21 day time limit in which to make an application for an unfair dismissal remedy expires. What are the principles which the Fair Work Commission applies when an application to extend that time is made. Here are the principles.

“Application for unfair dismissal remedy.

1 Introduction

[1] Mr Johann Coetzee (the Applicant) applied for an unfair dismissal remedy, having been purportedly dismissed by way of redundancy from Centre For Excellence In Rail Training Pty Ltd (the Respondent) on 15 July 2021. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.

[2] The Applicant concedes his application was filed on 9 November 2021 and was therefore submitted some 96 days after the statutory deadline. However, he attributes the delay in filing his application on two factors.

[3] The first factor was the significant mental health issues the Applicant faced during the relevant period, which, he said, had been exacerbated by work stress and the negative actions of the Respondent. The second factor was the confirmation, in the Applicant’s view, that his position had not been made redundant as purported by the Respondent.

[4] Having observed, on 11 October 2021, an advertisement on the website ‘Seek’ for a position with the Respondent which was, if not the same, substantially similar to the one he had occupied, it cemented for the Applicant that his position had not been made redundant. The Applicant subsequently sought legal advice after seeing the advert, and as noted, made his unfair dismissal application to the Commission albeit late.

[5] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect.

[6] It is not contested that the application was made out of time. However, for the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. 1

[7] The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted.

2 Background

[8] The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application were as follows.

[9] The Respondent is in the business of providing responsive training solutions to the rail and allied industries.

[10] The Applicant commenced employment with the Respondent on or around 7 September 2020 in the position of ‘State Operations Manager’. 2

[11] According to the Applicant, his working relationship with Mr Arthur, the Respondent’s General Manager, and Mr Fritsche, the Respondent’s Executive General Manager, became untenable over the mid to latter part of 2021. The Applicant communicated as much to Mr Edwards, the Human Resources Manager of the Respondent.

[12] In or around June 2021, the Applicant was provided with a performance appraisal from Mr Arthur. On receipt of the performance appraisal, the Applicant emailed Mr Arthur to express his disagreement with the performance appraisal.

[13] In or around June 2021, Mr Fritsche approached the Applicant and questioned if he would consider taking on ‘client relationship management’ and ‘new business development’ for the Respondent and their new acquisition ‘Eureka’. Whilst the Applicant said that he accepted the position, he received no further information from Mr Fritsche about the role, notwithstanding having sent him multiple emails about it.

[14] On or around 12 July 2021, the Applicant sent Mr Fritsche an email requesting whether it would be possible to ‘recap’ the way going forward with the Respondent and where he fitted into that picture. The Applicant received no response.

[15] On 12 July 2021, the Applicant sent an email to Mr Edwards in which he requested a formal meeting with Human Resources or alternatively, he wished to submit a formal complaint against Mr Arthur.

[16] A couple of days later, on 15 July 2021, Mr Edwards and a Ms Mclaren, the Respondent’s Human Resources Officer, attended the Applicant’s office and requested a meeting with him. Mr Edwards informed the Applicant he was being made redundant with immediate effect and would be required to leave the premises immediately.

[17] In support of his application, the Applicant submitted a ‘Discharge Summary’ document from Joondalup Health Campus. The admission date was 21 September 2021, and the date of discharge was 29 September 2021. The Applicant also put forward a letter dated 25 November 2021, from a medical practitioner that described the mental health issues that the Applicant had encountered over the years including an exacerbation of the same in March 2021 and a further hospitalisation after July 2021. 3

[18] The ‘Discharge Summary’ showed that at the time of his admission the Applicant was in stable employment. At hearing, the Applicant gave viva voce evidence that he had commenced employment on or around 30 August 2021, after having applied for the job through the website ‘Seek’. He held the position with his new former employer for some ten weeks. However, for two of those weeks the Applicant did not attend work due to his ill health. The Applicant said that he subsequently resigned from the position as he was not mentally fit at that time to undertake the role.

[19] On 11 October 2021, the Applicant discovered an advert on ‘Seek’ for a WA State Operations Manager with the Respondent. Having discovered the advertisement, the Applicant states that he took immediate steps to obtain legal advice on his dismissal.

3 Extension of time

[20] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (‘Nulty’). 4 In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.

[21] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 5 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

As we have mentioned, 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 enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 6

[22] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph [6] of this decision. Each of these factors are considered below and were outlined to the parties at the start of the hearing.

3.1 Reason for the delay

[23] 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. 7 The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances. A credible explanation for the entirety of the delay will usually weigh in the applicant’s favour however, all of the circumstances must be considered.8

[24] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application. 9 However, the circumstances from the time of the dismissal are 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.10

[25] The Applicant explained that preceding his dismissal by way of redundancy, he was already suffering from severe mental health issues. The Applicant referred to a decline in his mental health in March 2021, in part, due to circumstances in his personal life. That decline resulted in an absence from work. However, after that absence the Applicant returned to work with the Respondent up until the time of his dismissal.

[26] It was the Applicant’s evidence that at the time of his dismissal he was concerned that his employment was being terminated for reasons other than redundancy. Further, the Applicant agreed that he had given thought to how the Respondent could make his role redundant when it was about to acquire a new business and additional responsibilities. When asked in cross examination, the Applicant agreed that at the time of his dismissal he did not believe that the redundancy of his position was genuine and that he considered that his dismissal was unfair. However, notwithstanding his consternation about his dismissal the Applicant did not take any steps to make an unfair dismissal application within the statutory period.

[27] The Applicant understandably emphasised his deteriorating mental health post-dismissal, such that it led to his hospitalisation for the period 21 September 2021 to the date of his hospital discharge on 29 September 2021. It is noted that on 13 December 2021, this Commission issued confidentiality orders in respect of confidential information in the letter dated 25 November 2021 from the Applicant’s medical practitioner and the Applicant’s Discharge Summary. Therefore, I will elaborate no further regarding the Applicant’s health status as outlined in the two documents.

[28] Whilst the Applicant spoke of his mental health status during the period post 15 July 2021, he remained able to apply for work successfully, starting in a new position on 30 August 2021. Further, whilst the Applicant was absent from his new job whilst hospitalised in late September 2021, he appears to have worked for the new employer for a period of approximately eight weeks. There is no direct evidence that during the period from 15 July 2021 until his hospitalisation in late September, he was so incapacitated that he was unable to apply for jobs or to undertake work.

[29] Between the period of 15 July 2021 up until 11 October 2021, the evidence showed that the Applicant held the view that his redundancy was not genuine and that his dismissal was unfair. However, between 15 July 2021 and 20 September 2021, he took no steps to make an unfair dismissal application. Furthermore, notwithstanding the decline in his mental health, the Applicant had successfully applied for a job and commenced work with a new employer.

[30] While the Applicant downplayed the challenges associated with applying for work, securing new employment and starting a new role, such steps were a credit to him in circumstances where his mental health was impacted. However, it must also be observed that the Form F2 Unfair Dismissal Application has been developed with the self-represented applicant in mind. It is not a complex document; it is not in the nature of a formal pleading; it is designed so that it may be completed by a layperson and may be lodged by a number of methods including online lodgement. Further, it does not require an applicant to attach certain documents.

[31] As noted, in or around 11 October 2021, the Applicant observed an advert on ‘Seek’ for the position of ‘WA State Operations Manager’ with the Respondent. According to the vacancy advertised on ‘Seek’, it was the same, if not very similar, to the role he performed while employed with the Respondent. The Applicant also saw a further advert that was placed on ‘Seek’ on or around 18 October 2021 by the Respondent, again for the position of a ‘WA State Operations Manager’.

[32] The Applicant described having taken immediate steps to seek legal advice in relation the matter after having viewed the advertisement on 11 October 2021. On or around 20 October 2021, the Applicant states he met with legal representatives to seek legal advice. The Applicant states he engaged legal representatives on 26 October 2021.

[33] The Applicant explained that he engaged a legal representative to provide advice concerning his unfair dismissal application because he was not mentally able to attend to making the application himself. However, there appears to be little explanation as to why, having engaged legal representatives on 26 October 2021, it took until 9 November 2021 to make the unfair dismissal application. It was noted by the Applicant that he had discontinued his legal representative’s engagement at some point due to the prohibitive cost of legal fees. Nevertheless, it remains the case that the Applicant was clearly viewing ‘Seek’ from on or around 11 October 2021, and as from that time was able to instruct lawyers concerning his dismissal from the Respondent. I again return to what was observed earlier about the accessibility of the Form F2, its lack of complexity, and the various means by which an Applicant can make an unfair dismissal application.

[34] The Applicant directed the Commission to the delay that had been occasioned in the decision of Mr Kelwin Smith v Penrite Oil Company t/a Penrite (‘Smith’). 11 In that case the applicant, a Mr Smith, filed his unfair dismissal application some 27 days late. Mr Smith’s position was made redundant on 1 May 2020 and he was dismissed on that same day. On 18 June 2020, he saw an advertisement on Seek for a vacancy with his former employer, which he considered exactly the same as the role he had filled.12 It was found that Mr Smith had, on seeing the vacancy taken immediate steps to research on the Commission’s website how to challenge his dismissal on 18 June 2020 and he made his application for unfair dismissal remedy immediately thereafter – on that same day. It was concluded that that Mr Smith had provided an acceptable explanation for the whole of the delay, which weighed in favour of a grant of an extension.

[35] Having referred to Smith, the Applicant directed the Commission’s attention to Toni Perret v Ayers Real Estate (‘Perret’). 13 In Perret the applicant, whilst having considered making an unfair dismissal within the first week of her dismissal, did not, as she had no reason to suspect that the redundancy of her position may not be genuine. However, on 5 May 2020, the applicant found a private advertisement online (at seek.com.au) for a Commercial Property Manager with an anonymous employer for which she applied. Then, on 7 May 2020, the applicant found an advertisement online (at indeed.com) for a Commercial Property Manager with the Respondent employer. That same day, the applicant caused an application for unfair dismissal to be lodged with the Commission.

[36] In Perret it was found that on becoming aware that her dismissal, which took effect on 23 April 2020, may have been unfair, the applicant acted immediately and without delay to file the unfair dismissal application on 7 May 2020. It was therefore accepted that the applicant’s explanation for the period 23 April to 7 May 2020 was an acceptable or reasonable explanation and weighed in favour of a conclusion that there were exceptional circumstances.

[37] The circumstances of the Applicant in this case are not analogous to those in Perret or in Smith. From the time of his dismissal the Applicant held the view that his dismissal was unfair and that the redundancy of his position was not genuine. He, however, took no steps to make an unfair dismissal application. On viewing the advertisement on 11 October 2021 for a position that was the same, if not substantially similar to the one he held with the Respondent, the Applicant speaks of having sought legal advice. However, there is opaqueness as to why it took until 26 October 2021 to engage a legal representative and thereafter why it took until 9 November 2021 to make the unfair dismissal application.

[38] Support was drawn by the Applicant from the decision of John Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group (Ovenden), 14 where the Commissioner was, insofar as the reason for the delay in filing was concerned, satisfied by the medical evidence supplied that the applicant was in no fit condition to deal with the matter until late January 2010.15 Whilst levelling no opprobrium to the decision maker in Ovenden, there is scant detail as to why the Commissioner rejected the respondent’s submissions that the applicant’s medical condition fell short of establishing that the applicant was unable to deal with his situation. Notwithstanding, the medical evidenced adduced satisfied the Commission that at the time of his dismissal the applicant’s mental health rendered him unfit to deal with the matter. There is no such evidence before the Commission in this case, noting again that the Applicant was able to seek out, apply and secure other employment during a period of the delay.

[39] Notwithstanding, I am satisfied that the Applicant has provided cogent explanation for part of the delay in making his unfair dismissal application. This is so, in respect of the period in or around 21 September 2021 until 29 September 2021. However, whilst I have considered the delay as the period beyond the 21-day period and have had regard to the circumstances from the date the dismissal took effect, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the whole period of the delay in lodging his unfair dismissal application. This as such weighs against a finding that there are exceptional circumstances.

[40] Whilst such a finding has been made, it is very important to emphasise that this Commission does not in any way suggest that the Applicant has contrived his illness or that the validity of his medical documentation is impugned. However, it remains that the Commission can only make findings based upon all the evidence put before it.

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

[41] At all material times from the time the Applicant was notified of his dismissal by way of redundancy on 15 July 2021, until the date the unfair dismissal application was made, the Applicant knew he had been dismissed. I consider this to be a neutral factor.

3.3 Action taken by the person to dispute the dismissal

[42] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 16 I have considered all submissions and the evidence in this respect.

[43] The Applicant gave evidence that before the dismissal occurred, he held discussions with Mr Edwards, regarding concerns that he may be dismissed. However, the Applicant concedes that he took no further steps to dispute the dismissal prior to discovering the advertisement on ‘Seek’.

[44] Having considered the evidence and submissions of both parties, there is insufficient evidence to find that the Applicant challenged his dismissal. This weighs against a finding of exceptional circumstances.

3.4 Prejudice to the employer

[45] I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances.

3.5 Merits of the application

[46] In Kornicki v Telstra-Network Technology Group, 17 the Full Bench of the Australian Industrial Relations 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 that case the Full Bench said in respect to the merits of an application:

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. 18

[47] However, I note that in this case the Applicant adduced evidence of advertisements for a position that appeared remarkably similar in title to that position that he had held with the Respondent. The Respondent argued that the redundancy of the Applicant’s position was legitimate, as after its parent company acquired Eureka 4WD Pty Ltd (Eureka), the principal of that business, a Mr Delanotte, was retained and thereafter assumed management of the combined businesses of Eureka and the Respondent. On that basis, the Applicant’s position was no longer required.

[48] However, within months of assuming the management of both Eureka and the Respondent, Mr Delanotte advised the business he intended to leave the organisation to pursue other business interests. According to the Applicant, it was always known that Mr Delanotte was not going to remain with the organisation.

[49] The Applicant also contended that at the time of his dismissal there was a vacancy for the position of State Operations Manager in NSW. The Respondent disputed this noting that the position had been filled by an ‘acting manager’.

[50] It is accepted that evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. 19 The merits of the application more generally would need to be scrutinised. This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. However, the Applicant has adduced direct evidence of an advertisement for a position, which, on the face of it, looks remarkably like that which he occupied. While I appreciate that the Respondent contends that the Applicant’s duties were subsumed into the role assumed by Mr Delanotte, I am not convinced that more likely than not the Applicant’s case is absent merit. It is for these reasons I have concluded this factor weighs in favour of granting an extension of time.

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

[51] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, 20 where it was said:

[C]ases 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. 21

[52] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, based on the submissions filed and as such I consider it a neutral consideration.

4 Conclusion

[53] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. The decision before me is a difficult one in light of the competing factors that weigh for and against the granting of an extension of time.

[54] However, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension.

[55] It was evident that at the time of his dismissal the Applicant held the view that something was very awry with the termination of his employment. He held a definitive view that his redundancy was not genuine and that his dismissal was unfair. Post his dismissal, the Applicant was able to look for new work, apply for the same, secure new employment and thereafter work. Whilst appreciative of the significant decline in the mental health of the Applicant come mid to late September, the evidence led is insufficient to explain the totality of the delay. Further, when appraised of the advertisement for a position the same, if not substantially similar to the one that he previously held, the evidence demonstrated no immediacy regarding the Applicant making an application – there was as distinct lack of urgency.

[56] The factor of delay however must be weighed against the other factors under s 394(3), with all circumstances being considered. Whilst finding that the Applicant’s substantive argument is not absent merit based on the evidence before me, I am unable to conclude that there are exceptional circumstances based on the several neutral factors and the reasons for the delay. This is the case notwithstanding the decline of the Applicant’s mental health for part of the period of the delay. It follows that it is not fair and equitable to grant the extension.

[57] The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order 22 will be issued with this decision.”

Coetzee v Centre For Excellence In Rail Training Pty Ltd (2021) FWC 6708 delivered 31 December 2021 per Beaumont DP