s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed out of time - extension of time for filing sought - extension refused

• [1] Darrin Jeanes was employed by ADT Security Group Pty Ltd as a Field Security Consultant. His employment came to an end on 24 September 2024 on the basis of redundancy.

• [2] Initially, Mr Jeanes did not challenge his dismissal. However, on 6 November 2024 he had a conversation with a former colleague at ADT, David DiFrancesco. From that conversation, Mr Jeanes understood that Mr DiFrancesco had been hired by ADT into a role which was equivalent to the one which he had held. This caused him to question both the genuineness of the redundancy of his position and the motivations of ADT management.

• [3] On the same day, Mr Jeanes filed an unfair dismissal application with the Fair Work Commission.[1]

• [4] An unfair dismissal application must be made within 21 days of the dismissal, unless the Commission allows a further period.[2] The 21-day period expired on 15 October 2024. It follows that Mr Jeanes requires the Commission to allow him an extension of time to file the application. He applies for such an extension.

• [5] ADT opposes the extension application.

• [6] The Commission may only allow Mr Jeanes an extension of time if it is satisfied that there are "exceptional circumstances", taking into account:[3]

• a. the reason for the delay. The "delay" is the period between the end of the 21-day period and the filing of the application.[4] In this case, 22 days;

1. whether Mr Jeanes first became aware of the dismissal after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in Mr Jeanes being informed of his dismissal, which may account for the delay in filing the application;

• c. any action taken by Mr Jeanes to dispute the dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by making an unfair dismissal application. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time; [5]

1. prejudice to ADT (including prejudice caused by the delay);

1. the merits of the unfair dismissal application. That is, the prospects of Mr Jeanes succeeding on his claim; and

1. fairness as between Mr Jeanes and other persons in a like position.

• [7] Circumstances will be "exceptional" if they are out of the ordinary course, or unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[6] Exceptional circumstances may include:

• c. a combination of ordinary factors which, when taken together, are seen as exceptional.[7]

• [8] The need to demonstrate exceptional circumstances establishes a high hurdle for a person seeking an extension.[8] The onus is on Mr Jeanes to demonstrate that exceptional circumstances exist.[9]

• [9] But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether to allow an extension of time.[10]

• [10] Therefore, I need to answer two questions:

1. Do exceptional circumstances exist in this matter, taking into account the criteria at [6] above?

1. If so, should I exercise my discretion to allow Mr Jeanes an extension of time?

• [11] The answer to the first question is no. It is not necessary to consider the second.

Why I have found that the circumstances are not exceptional

• [12] I will explain my decision by reference to the criteria at [6] above.

Was there an acceptable explanation for the delay?

• [13] Mr Jeanes does not have to show that the reason for the delay is itself exceptional. It is just one of the factors to be taken into account. But a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[11]

• [14] If an allegedly redundant employee becomes aware of material facts after the 21-day time period which call into question the fairness of their dismissal, it may support a finding of exceptional circumstances.[12] It will depend on the circumstances of the case.

• [15] Mr Jeanes's explanation for the delay can be summarised as follows:

1. Approximately two months before his dismissal, Mr Jeanes had heard a rumour that Mr DiFrancesco would be returning to ADT.

1. On 6 November 2024 Mr Jeanes had a conversation with Mr DiFrancesco. From that conversation, Mr Jeanes understood that Mr DiFrancesco had been offered employment with ADT in a position equivalent to the one that Mr Jeanes had held at the time of his dismissal.

1. Mr Jeanes drew a connection between that conversation and the rumour he had heard prior to his dismissal. He drew several conclusions. First, that his redundancy was not a genuine one, in that his role continued to be required by ADT. Second, even were that not the case, ADT should have offered the position to him and not Mr DiFrancesco. After 15 years' service, it should have been offered as an alternative to dismissal. But in any event, Mr Jeanes is of the opinion that he is better qualified for the position than Mr DiFrancesco. Third, ADT had coordinated his removal so as to accommodate the re-hiring of Mr DiFrancesco. This included waiting to offer Mr DiFrancesco employment until after the 21-day period for Mr Jeanes to commence unfair dismissal proceedings had lapsed.

1. After the conversation, Mr Jeanes moved immediately to commence these proceedings. He did so on the same day that he spoke to Mr DiFrancesco.

• [16] ADT maintained that Mr Jeanes's dismissal was a case of genuine redundancy. It led evidence that the dismissal was the result of a business reorganisation. In short, it contended that ADT is one of three businesses forming Intelligent Monitoring Group. The others are Intelligent Monitoring Solutions and Signature Security Group. The business made the decision to consolidate the ADT and Signature Security businesses, which included reducing the size of ADT's residential sales team, in which Mr Jeanes worked. Mr Jeanes was one of eight employees whose roles were made redundant as a result of those changes.

• [17] ADT denied that Mr Jeanes was dismissed to make room for Mr DiFrancesco. There are three particular matters arising from its evidence in this regard. First, at the time of Mr Jeanes's dismissal, the business had not identified the need for the role ultimately offered to Mr DiFrancesco. Second, that role was in the Signature Security business, not ADT. Third, that business has a more commercial enterprise focus than the residential and small business market into which ADT was selling. It summarised the situation as "different business units, different skill sets, different roles, completely different jobs".

• [18] On all of the evidence, I do not accept that ADT hired Mr DiFrancesco into the position that Mr Jeanes held at the time of his dismissal. Further, Mr Jeanes's evidence does not reveal how he could properly have reached that conclusion in his discussion with Mr DiFrancesco.

• [19] I also do not accept that ADT orchestrated Mr Jeanes's removal so as to allow it to hire Mr DiFrancesco. In part, this follows from my conclusion immediately above. But there are other reasons.

• [20] First, the contention assumes a process targeted at Mr Jeanes. This ignores the broader context. Mr Jeanes did not dispute that there had been a consolidation of the ADT and Signature Security businesses or that he was one of eight employees whose roles were made redundant at the same time.

• [21] Second, the contention rests on assertions that ADT management engaged in deliberately deceitful and dishonest behaviour to secure his removal. These are significant and serious allegations. But Mr Jeanes's evidence did not bear them out. He did not explain why ADT management would have engaged in such behaviour. The high point of his evidence was a hearsay account of words said by one ADT employee to another that might have suggested animosity towards Mr Jeanes, and contentions that he was paid less than his contemporaries.

• [22] Third, Mr Jeanes did not demonstrate that at the time of his dismissal, ADT management had resolved to offer Mr DiFrancesco a position. He raised no evidence to challenge that of ADT that the need for the position was not identified until after his dismissal.

• [23] In sum, Mr Jeanes has provided an explanation for the delay. However, while he may have believed after his conversation with Mr DiFrancesco that there was cause to question the legitimacy and fairness of his dismissal, he has not demonstrated that there was a rational or proper basis for that belief. It seems to been built in large part on an unwillingness to accept that ADT could have seen Mr DiFrancesco as a better candidate for the position over him. Otherwise, it is largely conjecture built on rumour.

• [24] On balance, I accept that the explanation provides some support for a finding of exceptional circumstances, but it is limited.

Was Mr Jeanes informed of his dismissal after it took effect?

• [25] Mr Jeanes was notified of his dismissal on the day it took effect. This argues neither for nor against a finding of exceptional circumstances.

Did Mr Jeanes take action to dispute his dismissal?

• [26] Mr Jeanes conceded that he took no action to dispute his dismissal before commencing these proceedings. That is understandable given that on his case he had no reason before 6 November 2024 to question the fairness of the dismissal. This argues neither for nor against a finding of exceptional circumstances.

• [27] ADT was unable to identify any particular prejudice that it would suffer prejudice were I to grant Mr Jeanes an extension of time. I might be able to infer some prejudice, in that ADT would be denied the benefit of the limitation period.[13] But even were I to find no prejudice, that would not be a factor which of itself would support a finding that exceptional circumstances exist.[14] This factor argues neither for nor against a finding of exceptional circumstances..

What are the merits of the unfair dismissal application?

• [28] For present purposes, it is sufficient for Mr Jeanes to show that his unfair dismissal claim has some merit. The greater the merit, the more weight will be given to this factor.[15] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[16]

• [29] On the material available to me, Mr Jeanes would have difficulty demonstrating that his role had not become redundant. His was one of eight roles made redundant following the consolidation of the ADT and Signature Security businesses, and the resultant reduction in size of ADT's residential sales team.

• [30] I have some reservations as to the adequacy of ADT's consultation process. In particular, ADT appears not to have directly engaged with Mr Jeanes regarding opportunities for redeployment or other alternatives to dismissal. At the same time, the evidence suggests that even had such consultation occurred, it is unlikely to have yielded a different result.

• [31] Overall, I consider that Mr Jeanes's prospects in the matter are limited. This argues against the finding of exceptional circumstances.

Fairness as between Mr Jeanes and other persons in a similar position

• [32] This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[17]

• [33] I am not satisfied that Mr Jeanes has been able to demonstrate that his matter is so sufficiently different to like matters in extension of time hearings which have come before the Commission that I should treat it differently. I think it would be unfair to other applicants whose applications for extensions of time were refused to treat Mr Jeanes in a different manner. This weighs against a finding of exceptional circumstances.

• [34] Having regard to the matters discussed above, I am not satisfied that exceptional circumstances exist. The explanation for the delay (noting its tenuous foundations) is outweighed by the apparent weakness of the unfair dismissal application. It follows that there is no basis on which I can grant Mr Jeanes the extension of time he seeks.

• [35] Mr Jeanes's request for an extension of time to file his unfair dismissal application is refused.

[1] The application was made under Part 3-2 of the Fair Work Act 2009 ("Act"). (All legislative provisions referred to in this decision are references to provisions of the Act.)

[3] Section 394(3). The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39]

[4] Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 at [40]

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

[6] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

[7] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

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

[9] Romic v Blacktown City Council [2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services [2010] FWA 1798.

[10] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank [2017] FWCFB 436 at [16]

[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]

[12] Toni Perret v Ayers Real Estate [2020] FWC 2981; Abby Higgins v Coopella Nominees Pty Ltd T/A Sea & Vines Property Management [2021] FWC 1126 at [48]

[13] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 544 (Dawson J)

[14] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21]

[15] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]

[16] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]

[17] Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963 at [41]

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