Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application made outside 21 days - position redundant - new role subsequently advertised - exceptional circumstances.

[1] This decision concerns an application by Mr Kelwin Smith for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Act).

[2] Mr Smith made an application for an unfair dismissal remedy under s.394 of the Act on 18 June 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). It is not in dispute that Mr Smith's application was filed outside the timeframe for lodgement of the application. Mr Smith seeks that the Commission allow a further period of time for the application to be made.

[3] The Respondent opposes the grant of an extension of time. It says that Mr Smith has not demonstrated exceptional circumstances in support of the late lodgement of his application.

[4] For the reasons set out below, I am satisfied that there are exceptional circumstances. The timeframe for lodgement of the application is therefore extended to 18 June 2020.

[5] The Commission has the power pursuant to s.394(3) of the Act 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.[1] 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 particular significance, when taken together can be considered exceptional.

[6] Under s.394(3) of the Act, the Commission may allow a further period of time for an application under s.394 to be made if it 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

• (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.

[7] I consider each of these matters below.

[8] Mr Smith commenced employment with the Respondent in November 2017.[2] He was employed within the Respondent's marketing department as a Graphic Designer.[3]

[9] On 1 May 2020, Mr Smith attended a meeting with his manager, Mr Brendan Hughes and his team leader, Mr Raj Senthil at which he was advised that his position was redundant.[4] His redundancy is said to have been occasioned by the COVID-19 pandemic[5] and took immediate effect.[6]

[10] Accordingly, the 21-day statutory timeframe for filing the application expired at midnight on 22 May 2020. Mr Smith's application for an unfair dismissal remedy was received by the Commission on 18 June 2020. The application was therefore filed 27 days outside of the statutory timeframe.

[11] The relevant period required to be considered under s.394(3)(a) is the period after the 21-day timeframe for lodging the application, being 23 May 2020 to 18 June 2020.[7] However, the circumstances from the time of the dismissal must be 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.[8]

[12] As to the reason for the delay, Mr Smith said that on 18 June 2020 he discovered that the position of Junior Graphic Designer was advertised by the Respondent on the seek.com.au website.[9] The vacancy was advertised from Monday 15 June 2020. Mr Smith's evidence was that he would review the seek.com.au website for job opportunities every couple of days. However, he had not reviewed the website until the Thursday of that week, being 18 June 2020.

[13] Mr Smith contends that the vacancy "is exactly the same" to the role he performed for the Respondent, that is "working on advertising in the automotive, pharmaceutical and manufacturing industries," specifically "Graphic Design work for their Penrite and Lightning brands."[10] Mr Smith considered that his position was therefore not genuinely redundant on 1 May 2020 as contended by the Respondent. He lodged his application for an unfair dismissal remedy the same evening, 18 June 2020.[11]

[14] The Respondent submits that Mr Smith's position was genuinely redundant effective 1 May 2020 along with 27 other positions.[12] It says that the advertised position is confined to new product development packaging for the Lightning brand, and working within regulatory requirements for packaging including correct labelling, compliance with Australian standards and barcoding.[13] It contends, having regard to Mr Smith's October 2017 resume, that Mr Smith did not hold the requisite experience for such work, and nor did he perform such duties during his employment. This was challenged by Mr Smith during the proceedings. He submitted that during the last year of his employment with the Respondent he performed packaging design duties for the Lightning brand including hand sanitiser spray, solvent spray, gloves, quick rags and merchandise boxing. He said that he had learned the relevant standards, barcodes and safety requirements as it related to this type of work, which he had also performed for a previous employer.

[15] 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.[14]

[16] I accept that on 18 June 2020 Mr Smith learned of the vacancy. I also accept Mr Smith's direct evidence that this led him to question the genuineness of the redundancy on the basis of his view that the vacancy was the same as the position which he previously held. While I make no findings as to the extent to which the advertised vacancy is similar to Mr Smith's position, or the bearing the vacancy may have upon the genuineness of Mr Smith's redundancy, I am persuaded on the evidence[15] that Mr Smith's view was not unreasonably held.

[17] I am satisfied that Mr Smith took immediate steps to research on the Commission's website how to challenge his dismissal on 18 June 2020. His application for an unfair dismissal remedy was made immediately thereafter.

[18] Having regard to these matters, I am satisfied that Mr Smith has provided an acceptable explanation for the whole of the delay. This weighs in favour of a grant of an extension.

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

[19] Mr Smith was advised of his dismissal by reason of redundancy on 1 May 2020.[16] This was confirmed in a letter of the same date. He therefore had the full 21-day period to lodge his application for an unfair dismissal remedy.

[20] This would ordinarily weigh against the grant of an extension of time. However, I consider this to be a neutral consideration in light of Mr Smith's evidence, which I have accepted, that it was not until 18 June 2020 that he questioned the genuineness of the redundancy.

Action taken by the person to dispute the dismissal

[21] Mr Smith took no steps to dispute the dismissal prior to 18 June 2020.

[22] However, in the circumstances of this case, and noting that Mr Smith lodged his application the same evening that he became aware of the advertised vacancy, I consider this to be a neutral factor.

[23] During the proceedings, the Respondent contended that Mr Smith has secured alternative employment and for this reason did not apply or express an interest for the advertised vacancy. It is on the basis that the Respondent says it would suffer prejudice if an extension of time is granted to Mr Smith.

[24] I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now, than if the application had been made within the 21-day limitation period. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time.

[25] I consider this to be a neutral consideration.

[26] There is insufficient material before me to make any detailed assessment as to the merits of the substantive application. Nor should the Commission embark upon such analysis in determining whether to grant an extension of time.[17]

[27] It is apparent that the parties are in dispute as to the question of whether the dismissal was a genuine redundancy.

[28] Mr Smith contends that his redundancy was not genuine because the position he held with the Respondent was advertised as a vacancy approximately six weeks after his dismissal was effected on 1 May 2020.

[29] The Respondent submits that Mr Smith was dismissed by reason of a genuine redundancy on 1 May 2020. It says that the fixed term vacancy advertised on 15 June 2020 is a new role that had been identified as necessary only four days prior to the advertisement date and it is not the same position as that which was held by Mr Smith.

[30] In light of this contest, I consider the merits to be a neutral consideration.

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

[31] The parties did not raise any circumstances that are relevant to the question of fairness as it relates to Mr Smith or any other person in a similar position.

[32] I consider this to be a neutral consideration.

[33] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria and noting that a satisfactory explanation for the entire period of the delay has been accepted, I am satisfied that there are exceptional circumstances that support an extension of time to the date that the application was lodged.

[34] The Respondent's jurisdictional objection with respect to the timeframe for lodgement is dismissed. The application will now proceed to conference before the Commission.

[1] [2011] FWAFB 975; [2011] 203 IR 1

[2] Form F2 - Unfair Dismissal Application dated 18 June 2020 (Form F2) at 1.1; Form F3 - Employer response to unfair dismissal application dated 24 June 2020 (Form F3) at 1.2

[4] Witness Statement filed by Mr Kelwin Smith dated 23 June 2020 (Smith Statement); Form F2 at 1.2

[6] Letter dated 1 May 2020 "Termination of your employment by reason of redundancy"

[7] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

[8] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

[15] Seek advertisement 15 June 2020; Seek advertisement 9 October 2017

[17] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]

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