Fair Work Act 2009

s.394 - Unfair dismissal

Asahi Beverages Pty Ltd T/A Asahi Lifestyle Beverages

Application for an unfair dismissal remedy - jurisdictional objection - application lodged out of time - no exceptional circumstances.

[1] Mr Power, the former Business Development Manager of Asahi Beverages Pty Ltd T/A Asahi Lifestyle Beverages (the Respondent), applied for an unfair dismissal remedy on 5 August 2020. The Respondent objected to the application on the basis 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 that objection.

[2] Mr Power concedes that his application was lodged late. However, he attributed the delay on his having placed reliance on the representations of the Respondent. The Respondent had informed him that his position was redundant and there were no redeployment opportunities within its enterprise. Mr Power had no reason to disbelieve this, he said. A month later however, Mr Power discovered that the work he previously performed was still required by the Respondent; or at least work which was substantially similar. Mr Power lodged his unfair dismissal application on 7 October 2020, having seen advertisements on a website for a 'State New Business Manager' and a 'Business Development Manager' with the Respondent.

[3] 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. The other three preliminary matters are not presently relevant.

[4] It is not contested that Mr Power's application was made out of time. However, for Mr Power's application to now proceed, it is necessary for him 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:

(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

(f) fairness as between the person and other persons in a similar position.[1]

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

[6] Mr Power commenced employment with the Respondent on 28 September 2005. He was initially employed as a sales representative and over the course of several years progressed to the position of Regional Business Development Manager.[2] Mr Power detailed at length the duties and responsibilities of his former role.

[7] Mr Power stated that in March 2020, when the global pandemic began to affect the Respondent's operations, he was directed to work remotely for a period.[3]

[8] Then on 15 April 2020, Mr Power was placed on four weeks paid pandemic leave and thereafter was directed to use his paid leave entitlements, including a combined total of roughly three months annual leave and long service leave. Mr Power gave evidence that he was asked to agree to the leave arrangements, which he did.[4]

[9] Mr Power said that on 29 July 2020, he was informed in writing that his role would no longer exist due to an organisational restructure and that redeployment options were being considered. The letter of 29 July 2020, confirmed, '[A]s discussed with you today, Asahi Beverages Pty Ltd (the Company) have recently made a decision to introduce a major change to the workplace ...'.[5]

[10] On 5 August 2020, Mr Power was directed to attend a 'Webex' meeting with Mr Quince, National Sales Manager, and Ms Lyons, HR Business Partner. Mr Power said that he was informed that no redeployment opportunities existed and that his employment would terminate as a result of redundancy.[6]

[11] Mr Power said that in the meeting he enquired whether he could apply for roles should they become available in the future and was informed that he would not be able to apply for roles for a period of 12 months.[7]

[12] Following his dismissal, Mr Power obtained employment on 28 August 2020. His new role required him to learn about different product lines. Although he had obtained a new position, he said he continued to review recruitment websites to ascertain if there were roles within the product areas in which he had more experience and where the salary equalled or exceeded that earnt with the Respondent.[8]

[13] On 30 September 2020, while viewing a recruitment website, Mr Power discovered that the Respondent had advertised for a Business Development Manager and a State New Business Manager.[9]

[14] The Respondent did not deny that it had advertised such positions. However, through the evidence of its HR Business Partner, it explained what had led to the establishment of the new positions, and why they had no bearing on Mr Power's case.

[15] Ms Lyons gave evidence that during the time that Mr Power was on leave, the Respondent commenced a structural review of the operational requirements of the Asahi Lifestyle Beverages (ALB) division, where Mr Power had been employed.[10] As a result of the review there was a consolidation of roles. Thirteen roles were impacted, with seven positions, including Mr Power's position, being made redundant.[11]

[16] Ms Lyons detailed that Mr Power had been: (a) notified of the organisational changes on 29 July 2020; (b) placed on a 'redeployment period'; and (c) informed on 5 August 2020 that there were no suitable positions in which to place him and therefore his employment was terminated effective that same day.

[17] Mr Power received five weeks' notice and a redundancy entitlement of 52 weeks' pay.

[18] In September 2020, after Mr Power's dismissal, the Respondent undertook another review of its operational requirements within the ALB business division.[12] The review was said to have formed part of a wider organisational restructure in connection with the Respondent's acquisition of Carlton & United Breweries.[13] As a result of the further review in September 2020, the new roles of State New Business Manager and Business Development Manager were subsequently created in Western Australia as part of the new ALB business division organisational structure.[14]

[19] Ms Lyons gave evidence that had the newly created roles been available at the time of Mr Power's dismissal on 5 August 2020, they may have been suitable redeployment opportunities for Mr Power, however, they did not exist at that time.[15]

[20] Evidence was given of the duties and responsibilities of the new positions.[16]

[21] There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[17]

[22] In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty)[18] the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains a discretion to grant or refuse an extension of time.[19] Whilst Nulty considered the general protection provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[23] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that 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.[20] 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 can be considered exceptional.[21]

[24] In the recent decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[22] 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.[23]

[25] 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'.

Reasons for the delay in filing the application

[26] Consideration turns to whether Mr Power has provided a credible reason for the whole of the period that his application was delayed.[24] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[25] It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, 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.[26]

[27] The reason for the delay advanced by Mr Power is that he had relied upon the Respondent's representations concerning the redundancy of his position and that there were no positions within its enterprise in which to redeploy him. He therefore did not make his application within the statutory timeframe. However, come 30 September 2020, he understood, having read the advertisements for the two positions, that the Respondent did require the work involved in his former role to be performed. Therefore, he lodged the application.

[28] Mr Power gave no reason why he failed to act with a sense of urgency to lodge an application for unfair dismissal on discovering that the two positions were advertised. At this time Mr Power considered that at least one of those advertised positions was equivalent to a role he had previously performed in the business and he had questions regarding when the positions were conceived and thereafter approved. Mr Power submitted that approval of positions in the business generally took time and yet these roles surfaced only some six weeks after his was dismissed. Further, Mr Power contended that the acquisition of Carlton Dry & United Breweries had occurred some 18 months prior to his dismissal. Armed with this knowledge however, his actions were not expeditious. It took until 7 October 2020 to make the application.

[29] I do not consider the explanation provided to be a credible, acceptable or reasonable basis for the delay in lodging the application. Even if I were to accept that the reason provided for the delay was credible - for the period between the time the application was due to be filed until 30 September 2020, it does not explain the reason for the delay between the identification of the advertised positions on 30 September 2020 and the filing of the application on 7 October 2020. An explanation for this part of the delay is absent.

[30] This weighs against a finding that there are exceptional circumstances.

Whether Power became aware of the dismissal after it took effect

[31] At all material times from the time Mr Power was dismissed until the date the unfair dismissal application was made, Mr Power knew he had been dismissed. I consider this to be a neutral factor.

[32] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[27] I have considered all submissions and the evidence in this respect.

[33] Mr Power acknowledges that he took no action to dispute the dismissal at the time it occurred, but states that he relied upon the Respondent's representations - which in and of itself triggers an exceptional circumstance.

[34] The Respondent submitted that Mr Power took no action to dispute his dismissal and he accepted the five weeks payment in lieu of notice and the 52 weeks of redundancy pay. Further, submitted the Respondent, Mr Power's reliance on the advertisements for the new positions as evincing there was not a redundancy or that it would have been reasonable to redeploy Mr Power at the relevant time, was misconceived.

[35] I do not consider Mr Power's inaction in disputing the dismissal, for the reason given, triggers an exceptional circumstance. It was always open to Mr Power to take action to dispute his dismissal from the date it took effect. On learning that the Respondent had advertised positions on a website on 30 September 2020, Mr Power still did not dispute his dismissal prior to lodging his application on 7 October 2020. This weighs against granting an extension of time.

[36] I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted notwithstanding the Respondent's submissions in this respect. Similarly, the Respondent has submitted that it makes no submissions in this respect. I consider this to be a neutral factor in the present case.

[37] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[38] In Kornicki v Telstra-Network Technology Group, [28] 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:

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.[29]

[39] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. 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 the applicant to lodge his application.[30]

[40] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time was granted and the matter proceeded. However, I am unable to assess the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

Fairness between the person and other persons in a similar position

[41] Mr Power submitted that this was a neutral consideration. Alternatively, he contended that given he was the only employee of the Respondent selected for dismissal as a result of the Respondent's alleged restructure, this factor should enliven the Commission's function. It is not evident that Mr Power was the only employee dismissed by way of redundancy because of the restructure. Ms Lyons gave evidence that whilst Mr Power was the only employee in Western Australia in the ALB division who had been dismissed, others had been dismissed.

[42] Applications to extend time generally turn on their own facts.[31] The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Mr Power and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[43] Having considered the matters referred to in paragraphs [26] - [42] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Power's application to be made.

[44] This is particularly the case when there is no satisfactory explanation for the whole period of the delay in making the application. In this respect, the totality of the evidence is insufficient to ground a finding that Mr Power's circumstances were out of the ordinary course, unusual, special or uncommon. Furthermore, I do not consider that it would be fair and equitable to grant an extension.

[45] The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order[32] will be issued with this decision

[1] Fair Work Act 2009 (Cth) s 394(3).

[2] Witness Statement of Clayton Power (Power Statement) [3].

[10] Witness Statement of Nikala Lyons (Lyons Statement).

[17] Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989 [20].

[18] [2011] FWAFB 975.

[22] [2018] FWCFB 901.

[24] Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251; (2010) 197 IR 403, 408-9.

[25] Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment [2016] FWC 5041 [10].

[26] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 [29] - [31].

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

[28] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[30] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899.

[31] Morphett v Pearcedale Egg Farm [2015] FWC 8885.

[32]PR724151.

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