Andrew Davis v HyperLife Pty Ltd [2020] FWC 4096

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Davis v HyperLife Pty Ltd (U2020/8324) DEPUTY PRESIDENT DEAN SYDNEY, 10 AUGUST 2020 Application for an unfair dismissal remedy – extension of time – no exceptional circumstances. [1] This decision concerns an application by Andrew Davis (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. [2] The Applicant’s employment with HyperLife Pty Ltd (the Respondent) was terminated with effect from 17 April 2020. The unfair dismissal application was lodged on 16 June 2020. [3] Section 394(2) of the Act prescribes that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days in Mr Davis’ case ended at midnight on 8 May 2020. The application was therefore filed 39 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). [4] A hearing was conducted on 28 July 2020 to determine whether to extend time for the application to proceed. Mr M Douglas appeared for the Applicant and Mr C Dowson appeared for the Respondent. Factual background [5] Mr Davis commenced employment with the Respondent in April 2019. Prior to this he was employed by Cumberland Stationary which was acquired by the Respondent in April 2019. Mr Davis’ service, which commenced in 1983, was recognised by the Respondent as service with it. [6] The Respondent commenced discussions with the Applicant on 15 April 2020 regarding the possibility of his role becoming redundant due to the loss of work resulting [2020] FWC 4096 DECISION -- 1 of 6 -- [2020] FWC 4096 2 from COVID-19. During the meeting Mr Dowson provided the Applicant with some options to avoid redundancy, including the Applicant taking some annual and/or long service leave for a period of time. A further discussion dealing with similar issues occurred the following day. [7] On 17 April 2020, the Applicant was asked by the Respondent as to which option he wished to pursue. The Applicant advised that he wished to be made redundant. He says this was on the basis that he understood he would receive 12 weeks’ redundancy pay. Mr Dowson provided the Applicant with a letter confirming his redundancy later that day. The letter included details of some of the Applicant’s entitlements such as notice and leave. In respect of redundancy, the letter indicated that payment would be “as determined by Fair Work”. [8] The Respondent subsequently made an application to the Commission under s.120 of the Act to reduce the redundancy payment it would otherwise have had to pay to the Applicant, on the basis of incapacity to pay (the Redundancy application). The Redundancy application was made on 24 April 2020, and was heard by the Commission on 4 May 2020. A decision in respect of the Redundancy application was handed down on 12 June 2020. [9] Mr Davis now seeks to challenge his dismissal on the basis that his redundancy was not genuine. Extension of time [10] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may 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.2 [11] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so. [12] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; -- 2 of 6 -- [2020] FWC 4096 3 (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [13] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application. Reason for the delay [14] 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. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant’s favour, however all of the circumstances must be considered.3 [15] There were two reasons proffered by the Applicant to explain the delay. First, the Applicant had no loss or damage sustained from the Respondent’s conduct in dismissing him until the decision issued by the Commission in respect of the Redundancy application. Second, the Commission’s inundation of work arising during the COVID-19 pandemic lead to a longer than usual processing time for the Redundancy application. Loss/damage arising from the Respondent’s conduct [16] It was submitted on behalf of the Applicant that when the Applicant advised the Respondent of his preferred option of redundancy in each of the three meetings held 15-17 April 2020, he could not have been aware that he was making a choice that was potentially disadvantageous when compared to the other options tabled by the Respondent. This was because the Applicant: (a) did not know that the Respondent was having cash flow issues; (b) did not know the Respondent may apply to the Fair Work Commission to reduce his redundancy pay; (c) was under the impression from his meeting on 15 April 2020 that he was going to receive 12 weeks’ redundancy pay; and (d) did not know that the Respondent would have been able to cover the cost of the entitlements and redundancy pay had an alternative option been taken. [17] In reliance on the decision in Wardley Australia Ltd v Western Australia4, it was submitted that the Applicant: (a) entered into a consent agreement with the Respondent on taking redundancy pay, without knowing that it would be to his disadvantage. This was because -- 3 of 6 -- [2020] FWC 4096 4 the Respondent did not disclose key relevant information, and even went so far as to confirm the 12 weeks’ redundancy pay with the Applicant on the computer during the meeting of 15 April 2020. (b) The loss or damage arising from the Applicant’s decision could not have been known until 12 June 2020, when the decision in the Redundancy application was issued. (c) It would be unjust to compel the Applicant to have lodged an unfair dismissal prior to knowing the loss or damage arising from the Respondent’s conduct. Delay caused by the Commission [18] The Applicant argued that the delay in making this unfair dismissal application was in part due to the delay in the Commission issuing a decision in the Redundancy application. As outlined earlier, the hearing to determine the Redundancy application was held on 4 May and a decision was issued on 12 June 2020, less than 6 weeks later. [19] The Applicant submitted that he understood the Commission was going to deliver the decision within a week and possibly by 8 May 2020 when he made his first call to the Commission to ask for an update. The Applicant also submitted that unfortunately, due to the COVID-19 pandemic and the well-publicised increase in workload of the Commission during that period, a decision in respect of the Redundancy application took longer than usual. The backlog of cases was submitted to constitute an unexpected and exceptional circumstance. [20] I do not consider these reasons, individually or together, form an acceptable reason for the delay. The Redundancy application was in no way a barrier for the Applicant to make an unfair dismissal application. It was completely unnecessary for him to wait for the outcome of the Redundancy application before making an unfair dismissal application. While the Commission’s workload has significantly increased as a result of COVID-19, a period of less than 6 weeks between the conclusion of a hearing and a decision is not a lengthy period of time. [21] Further, from the time the Redundancy application was made, the Applicant knew, or ought to have known, that one possible outcome was that the redundancy payment may be reduced. [22] The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect [23] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This factor weighs against the Applicant. -- 4 of 6 -- [2020] FWC 4096 5 Action taken to dispute the dismissal [24] The Applicant did not take any action to dispute his dismissal until this application was lodged. His opposition to the Redundancy application cannot in my view be considered as an action taken to dispute his dismissal. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances. Prejudice to the employer [25] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. Merits of the application [26] The Act requires me to take into account the merits of the application in considering whether to extend time, without embarking on a detailed consideration of the substantive case. [27] The Applicant submitted that the dismissal was unfair because Mr Dowson did not disclose his intention to make the Redundancy application until after the Applicant had made a decision to take redundancy. As a result, it was argued, the consultation requirements of the relevant award were not complied with. [28] The Respondent, on the other hand, submitted it genuinely explored options other than redundancy with the Applicant with a view to retaining him in its employ. [29] I consider the merits to be a neutral consideration in determining whether exceptional circumstances exist as both parties have an arguable case. Fairness as between the person and other persons in a similar position [30] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I have not been made aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter. Conclusion [31] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional -- 5 of 6 -- [2020] FWC 4096 6 circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed. DEPUTY PRESIDENT Appearances: M Douglas for the Applicant. C Dowson for the Respondent. Hearing details: Sydney (By telephone). 2020: July 28. Printed by authority of the Commonwealth Government Printer <PR721558> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. 4 (1992) 175 CLR 514. -- 6 of 6 --