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[2018] FWC 4408
General information, not legal advice.
Fair Work Commission
2018-08-06
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - jurisdictional objection - extension of time - granted.
[1] Mr Surgey Kukalev was employed by Prosegur Australia Pty Limited (Prosegur) as a security employee (AVO) working on cash in transit. On 19 January 2018 Mr Kukalev was notified at the end of his shift that his position was redundant and his employment was terminated effective immediately. He was escorted from the premises. Mr Kukalev was paid all entitlements on redundancy. At the time of being made redundant Mr Kukalev believed his redundancy was genuine.
[2] On 23 January 2018 Mr Kukalev was admitted to hospital for pre-planned surgery on his nose and throat. He stayed in hospital overnight and was released the next day. He had medical certificates indicating he would not be fit for work from 23 January 2018 until 19 March 2018.
[3] On Friday 23 March 2018 Mr Kukalev called another former employee of Prosegur, Mr Garry Frank, who had been made redundant not long after him. In his discussions with Mr Frank Mr Kukalev discovered that Prosegur had advertised for security guards for cash in transit on SEEK on 31 January 2018. Mr Frank advised Mr Kukalev that he, Mr Frank, had made an application for unfair dismissal and Mr Kukalev might consider that option. Mr Frank advised Mr Kukalev that such an application should be made within in 21 days of the time of dismissal.
[4] On the following Monday, 26 March 2018, Mr Kukalev rang the Fair Work Commission (Commission) and sought information on making an application. He completed an application form and filed that application the following day on 27 March 2018.
[5] Mr Kukalev filed his application 67 days after the date his dismissal took effect. It is therefore filed 46 days outside the time limit prescribed by the s.394(2)(a) of the Fair Work Act 2009 (FW Act).
[6] Mr Kukalev seeks an extension of time within which to make his application for unfair dismissal. The application is opposed by Prosegur.
[7] Evidence was given in proceedings by Mr Kukalev, Mr Frank and, for Prosegur, Mr Philip Richardson.
[8] Section 394 of the FW Act states as follows:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.
[9] An extension of time can only be considered by the Commission if exceptional circumstances exist taking into account those matters outlined in s.394(2) of the FW Act.
[10] The meaning of the phrase "exceptional circumstances" was considered in the decision in Nulty v Blue Star Group Pty Ltd[1] where the Full Bench of Fair Work Australia found:
In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional...The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[11] The onus of establishing that exceptional circumstances exist rests with the Applicant.
[12] In determining if exceptional circumstances exist, the Commission is required to consider each of the matters specified in s.394(3) of the FW Act. No one single factor is determinative of the matter. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[2] the Full Bench of the Commission said:
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.
[13] The Full Bench said of the reason for the delay:
[14] I shall therefore consider each of the matters specified in s.394(3) of the FW Act.
[15] Mr Kukalev said that the reason for the delay in making his application was firstly, that he understood at the time his employment was terminated that the redundancy was genuine and he only found out after his conversation with Mr Frank that it might not have been; secondly, that he was not aware that the security positions had been advertised on 31 January 2018 and only became aware of this on 23 March 2018 when he spoke with Mr Frank; and thirdly, that his operation meant he could not speak and had trouble eating and swallowing for some time afterwards and he had not spoken to anyone about the termination until he spoke to Mr Frank.
[16] Mr Kukalev said that had he known that his redundancy was not genuine before 23 March 2018 he would have taken steps to dispute it earlier.
[17] Having found on 23 March 2018 that his redundancy might not have been genuine Mr Kukalev took steps the next working day to contact the Commission and determined the process of making an application. He made his application the following day.
[18] Mr Kukalev said that he had no reason to research unfair dismissal or go onto the Commission's website before that time as he believed, up until that point, his redundancy was genuine.
(b) Whether the person first became aware of the dismissal after it had taken effect
[19] Mr Kukalev was aware on 19 January 2018 that he had been dismissed. He said however that he did not become aware the redundancy may not have been genuine until 23 March 2018 when he spoke to Mr Frank.
(c) Any action taken by the person to dispute the dismissal
[20] Mr Kukalev said that he did dispute the redundancy. He said he asked Mr Clyde Bainbridge-Robb, former General Manager Vic/Tas, why he had been selected for redundancy when he was aware that three other employees would have been happy to take redundancy whereas he needed ongoing work. He said he was told the decision was already made and could not be reversed.
(d) Prejudice to the employer (including prejudice caused by the delay)
[21] Prosegur argued that it would be highly prejudiced by the delay in Mr Kukalev making his application. It said that Mr Bainbridge-Robb, who dismissed Mr Kukalev, was no longer with Prosegur and that it was his decision and his alone as to who should be made redundant in the Victorian region. Mr Bainbridge-Robb had not been contactable since he left Prosegur.
[22] Mr Kukalev said that there would be no prejudice to Prosegur as Mrs Gwen Pizzo, another manager of Prosegur, had also been present at the meeting when he was told he was redundant on 19 January 2018 and she could give evidence as to what occurred and was said at the meeting.
[23] Mr Richardson said that Mrs Pizzo had recently retired from Prosegur.
[24] Mr Kukalev said that there was no consultation with him about the redundancy and he now understands as well that the process set out in the relevant enterprise agreement had not been followed. Further, he says that he believes he was dismissed because he had previously been injured at work even though he had full clearance to work.
[25] He said he had gained casual employment in the security industry on 16 April 2018.
[26] Mr Richardson said that, whilst he had prepared the redundancy letter, he had not been the one to sign it. He said that, as a result of the loss of contracts, 19 employees were made redundant nationally by Prosegur with 4 to 5 of those being in Victoria. He was not aware of how many AVO positions were abolished in Victoria but was aware that two control room positions were abolished (leading to the redundancies of Mr Kukalev and Mr Frank). He stressed that it was not his decision which positions were abolished or who was made redundant.
[27] Mr Richardson also said that an advertisement had been placed by Prosegur on 6 December 2017 and 31 January 2018 for casual employees.
[28] Mr Richardson said that, given Mr Kukalev had been made redundant and received five weeks' pay in lieu of notice in addition to his redundancy pay and he gained further employment on 16 April 2018, even if he was successful in his application any compensation paid would be minimal in these circumstances.
[29] Mr Kukalev said that issues of fairness arise as between him and Mr Frank. Mr Frank has made an application in relation to his dismissal and Mr Kukalev should also be able to.
[30] Prosegur said that this is not relevant as Mr Frank made his application within time.
[31] I am satisfied that Mr Kukalev has explained the delay in making his application. Whilst it is not unusual for a person to have been made redundant Mr Kukalev thought, until advised of the advertisement on SEEK of positions with Prosegur, that the redundancy was genuine. It was only after speaking to a fellow former employee of Prosegur that Mr Kukalev understood that this might not be the case. Having found so he contacted the Commission the next working day and filed his application the day thereafter. Whilst the slight delay of three working days from 23 to 27 March 2018 is unfortunate and not fully explained it is not fatal to the application for an extension of time.
[32] These circumstances weigh in favour of the grant of the extension of time.
[33] Whilst Mr Kukalev was aware that his employment had been terminated on 19 January 2018 he was not aware that the redundancy might not have been genuine until late March 2018 when he was alerted to the possibility by Mr Frank. This weighs slightly in favour of the grant of an extension of time.
[34] Mr Kukalev took no action to dispute his dismissal other than making the application to the Commission. This is a neutral consideration.
[35] I accept that there is prejudice to Prosegur should it be required to defend the unfair dismissal application given that Mr Bainbridge-Robb, the decision-maker and manager who effected the dismissal, no longer works for Prosegur and is, apparently not contactable. Whilst Mrs Pizzo has only recently left the business there is no suggestion she is no longer contactable. I note however that she is not said to have been the decision-maker. She was however present at the meeting when Mr Kukalev's employment was terminated and can give evidence as to what occurred.
[36] The prejudice is real. The dismissal occurred over six months ago and it is likely, should the extension of time be granted, that it will be another two months before the application is heard. Whilst the absence of the decision-maker would normally intensify any prejudice to a respondent, the basis of selection for redundancy is not a matter the Commission is required to consider in determining if a redundancy is genuine. Matters associated with consultation and redeployment are critical matters. I am not convinced that an organisation the size of Prosegur should not have appropriate records on such important staffing decisions arising from the loss of contracts.
[37] The matter of prejudice however does weigh slightly against the grant of the extension of time.
[38] Whilst it is not the role of the Commission to make any findings as to merit, absent hearing evidence on the contested matter, Mr Kukalev's application is not obviously devoid of merit. I acknowledge that Mr Kukalev gained employment following the expiration of his medical certificates and that this occurred about three weeks following this date. However, I do not have enough information as to the security of that employment, the rate of pay etc. to assess its equivalence or otherwise to his employment with Prosegur. For this reason it is not possible to assess the utility of any application being allowed to proceed.
[39] The consideration of the merits of the application is evenly balanced as to the grant of the extension of time.
[40] In Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[4] the Full Bench of the Commission considered the criterion of fairness and said:
[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.
[41] I accept that Mr Frank made his application within time and whilst this weighs against the grant of the extension of time it is not an irrelevant consideration.
[42] I have considered all of the circumstances of this case. I am satisfied that the circumstances outlined above are unusual and not routinely encountered. Mr Kukalev was made redundant and he considered this genuine at the time. He then proceeded to have pre-planned surgery that limited his capacity to interact with many people due to limitations on his capacity to talk. Once he discovered that jobs had been advertised by Prosegur he took steps to make his application for unfair dismissal. It is also highly unusual, if it is the case, that an employer as sophisticated and large as Prosegur would not apparently engage in the consultation about redundancy as required by its enterprise agreement.
[43] Mr Kukalev considered that his manager was being honest with him when he told Mr Kukalev he no longer had a position due to redundancy. He had a right to consider his manager was being truthful. Mr Kukalev also had a right to be consulted about whether he would accept some other, lesser position with Prosegur. On the basis of the material before me it is not evident that this occurred.
[44] Whilst I accept there will be some challenges for Prosegur in defending a claim that proceeds, I am not satisfied this will be impossible. The absence of key management is more properly considered by the presiding member who hears the application, should it come to that.
[45] In all of the circumstances I am satisfied that there are exceptional circumstances such that Mr Kukalev should be granted an extension of time until 27 March 2018 to make his application for relief from unfair dismissal. An order[5] to this effect will be issued with this decision.
P. Richardson for Prosegur Australia Pty Limited.
[3] Ibid; Evans v Bartlam [1937] AC 473; Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596; Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] VicRp 83; [1992] 2 VR 505; Dix v Gims Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297 at 301-302 per Brooking J (with whom Fullager and Tadgell JJ agreed); Esso Australia Pty Ltd v Australian Manufacturing Workers' Union [2015] FWCFB 210; [2015] 247 IR 5 at [58]- [59].
Printed by authority of the Commonwealth Government Printer
Sergey Kukalev
Prosegur Australia Pty Limited [2018] FWC 4408
(2011) 203 IR 1
(2018) 273 IR 156