Goldie v Fairfax Media Ltd [2014] FWC 9209 (17 December 2014)

[2014] FWC 9209

Fair Work Act 2009_

s.394 - Unfair dismissal

Fairfax Media Ltd T/A Fairfax Regional Media (Esperance Express)

[1] Mr Paul Goldie's employment with Fairfax Media Ltd was terminated on 15 August 2013. Mr Goldie lodged his application for an unfair dismissal remedy on 6 November 2014. The application was therefore not made within 21 days of the date of the dismissal.

[2] Mr Goldie was provided with information about the criteria used by the Fair Work Commission in deciding whether to extend time and invited to provide a statement supporting his application for an extension of time. Having received Mr Goldie's response I determined to hold a hearing/conference to determine the application.

[3] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must have regard to the following criteria:

[4] Mr Goldie gave evidence that he was employed as the Managing Editor of the Esperance Express. He had originally been appointed as the editor. It was his contention that despite his appointment as Managing Editor he continued to be the editor until his termination.

[5] Mr Goldie was made redundant in August 2013 and at the time he was told that the duties of editor would be done by the editor of the Collie Mail and that the managerial duties would be performed by Mr Rod Habgood, the General Manager for Western Australia.

[6] Mr Goldie said he was told on 27 September 2014 by Ms Lauren Vardey, a journalist at the paper, that she had been required to perform his job as editor and as well as her duties as a journalist. She told him that a new editor was to be appointed to the paper.

[7] On 24 October 2014, the appointment of a new editor was announced in the paper. It was Mr Goldie's contention that because the work of the editor continued to be done either by Ms Vardey or the new editor, his redundancy was a sham and that was the reason for the delay in lodging his application.

[8] Mr Goldie explained that he did not immediately lodge his application upon being told by Ms Vardey that a new editor was to be appointed because he thought he should wait for the official announcement on 24 October 2014. His only explanation for the delay in lodging his application after 24 October 2014 was because it took him some time to put the application together and he posted his application to the Commission. Mr Goldie did not say when he posted the application and it did not arrive at the Commission until 6 November 2014.

[9] It is clear in explaining the delay in lodging an application Mr Goldie is required to provide an explanation for the entire period of the delay. In these circumstances Mr Goldie did not have a further 21 days from the date of his discovery that his redundancy was a "sham". He was obliged to take prompt action as his application was by then out of time. Even if I accepted Mr Goldie's explanation that he was not aware of what had occurred at the paper until 27 September 2014, I do not consider that it was reasonable for him to await the official announcement of the appointment of the new editor to lodge his application. Even if it had been, Mr Goldie did not then immediately lodge his application. He did not adequately explain this subsequent delay.

[10] Mr Goldie's explanation for the delay for the entire period of the delay does not weigh in favour of a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[11] Mr Goldie was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. Even if he only became aware on 27 September 2014 that his dismissal may have been unfair, he did not lodge his application for another 40 days. This does not weigh in favour of a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[12] Mr Goldie did not dispute the dismissal when it occurred. Given the circumstances at that time I consider this criterion to be neutral.

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

[13] It was submitted that Fairfax Media Ltd would suffer prejudice if Mr Goldie was granted an extension of time given the lengthy time since the termination and the subsequent changes that had occurred in the business. I note that no evidence was given of any subsequent changes to the business. I consider this criterion to be neutral.

[14] Mr Habgood gave evidence that the duties of Mr Goldie had been redistributed to other employees. He gave evidence that Ms Vardey had taken on some of the editorial duties and that she was re-graded and received a pay rise at the time. Ms Vardey reported to the WA Content Editor. He said that subediting work was performed by the WA Editorial Hub and other duties had been redistributed to other employees. It was his evidence that no one was employed to fill the position of Managing Editor.

[15] Mr Habgood gave evidence that upon Ms Vardey's resignation, a new editor was appointed and that that editor reports to the Director of Content WA. The editor does not have the business responsibilities that Mr Goldie had.

[16] While I am unable to form a concluded view about the merits of Mr Goldie's case, on the material currently before me I do not consider that Mr Goldie's case is a strong one. It is well accepted that a position can be made redundant if the duties of the position are redistributed to other employees.

[17] On Mr Goldie's own evidence his duties encompassed more than editorial duties. He did not challenge Mr Habgood's evidence that his managerial duties had been distributed to others. He did challenge Mr Habgood's knowledge about his duties and he did disagree with Mr Habgood's assessment about the proportion of his work, which was editorial and which was managerial. Mr Goldie said he remained the editor. On Mr Goldie's own evidence, Ms Vardey was required to take on his duties as well as her own. Even if he had no other duties, the distribution of his editorial duties to Ms Vardey, in addition to her own duties, meant that Fairfax Media Ltd were able to reduce its head count.

[18] That an editor was appointed to the paper 12 months after his redundancy does not mean that at the time of his redundancy Fairfax Media Ltd did not have operational reasons for reducing its headcount. The relevant time for determining if a redundancy is genuine, is at the time it occurs, not 12 months later when other staff have been made redundant and other staff have resigned. Those changes may lead to a decision to reinstate a position previously made redundant. It doesn't diminish the legitimacy of the original decision. In any event, Mr Goldie was the Managing Editor and there was no evidence that the new editor was performing those duties.

[19] The weakness of Mr Goldie's claim, on his own evidence, weighs against a finding that there are exceptional circumstances.

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

[21] Mr Goldie has not provided an acceptable explanation for the entire period of the delay. Further,Mr Goldie's own evidence does not support a finding that his position was not redundant. I am unable to conclude therefore that there are exceptional circumstances and therefore Mr Goldie's application for an extension of time is dismissed and his application for an unfair dismissal remedy is dismissed.

P Karvouniaris for Rural Press Regional (WA) Pty Limited

Printed by authority of the Commonwealth Government Printer

var _gaq = _gaq || []; _gaq.push(['_setAccount', 'UA-9592794-1']); _gaq.push(['_trackPageview']); (function() { var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true; ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js'; var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s); })();