1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Michelle Coombes
v
Lee Crane Hire Pty Ltd
(U2015/5099)
COMMISSIONER SPENCER BRISBANE, 17 JUNE 2015
Application for relief from unfair dismissal.
Introduction
[1] This decision relates to an application made by Ms Michelle Coombes (the Applicant)
pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy
alleging that the termination of her employment from Lee Crane Hire Pty Ltd (the
Respondent) was harsh, unjust or unreasonable. The Applicant was employed as a full-time
officer in payroll at the Gladstone office.
[2] The Applicant was notified in writing that her job had been made redundant on 15
August 2014, with 4 weeks notice effective from that date. The Applicant subsequently
became ill and the Respondent continued her employment in order for her to have access to
the Respondent’s salary insurance and to accommodate a further period when she suffered a
bereavement in her family, and to allow her to take annual leave. The Respondent had
organised for the Applicant to remain employed in her role until 2 April 2015. The Applicant
was further informed, on 5 March 2015, that her job was redundant, effective 2 April 2015.
Subsequent to this, the Applicant filed an application, pursuant to s.394. This application was
not filed within the required timeframe under s.394(2), as it was filed one day out of time.
[3] The Respondent raised a jurisdictional objection in relation to the application; that the
termination of the Applicant’s employment was due to genuine redundancy. The Respondent
had previously filed a s.120 application, seeking a variation of redundancy pay, and sought to
rely on those submissions in seeking to pay no or reduced severance on the basis of their prior
extension of the Applicant’s employment to accommodate her circumstances and, as they
argued, they had offered acceptable alternative employment. The Applicant also filed material
in the s.120 application. These submissions, by consent, have been taken into account.
[4] Further submissions were filed in relation to the s.394 application. These submissions
have also been considered.
[5] A conference was held and matters relating to the extension of time, the jurisdictional
objection in terms of genuine redundancy and the alternative positions offered were discussed.
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DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 3930
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The parties did not seek a further hearing on the matters. Accordingly, it is considered that the
requirements of s.397, in accordance with the Full Bench Decision in Lewis v Altus Traffic
Pty Ltd i have been met.
[6] Following the conference, the parties confirmed that the s.394 matters; the out of time
issue and the genuine redundancy jurisdictional objection, could be further determined on the
papers on the material filed to date.
[7] The Applicant was represented by Ms Sarah Lock, of Workplace Law. The
Respondent was represented by Mr Earl Stevens, the CEO of the Respondent.
[8] Whist not all of the evidence and submissions in the matter are referred to in this
decision, all of such have been considered.
Relevant Provisions
[9] The application has been made pursuant to s.394 of the Act, which provides 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 2:For application fees, see section 395.
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.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3)
...
[10] Prior to considering the merits of the matter, the Commission must decide those
matters prescribed by s.396 of the Act as follows:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
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(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair
Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
(emphasis added)
[11] The application was filed out of time. The Respondent did not object to the extension
of time, given the application was one day out of time.
[12] The Act requires the Commission to be satisfied that there are exceptional
circumstances, in order to extend the period of time for a person to make an application to
deal with contraventions involving dismissal. In addressing the issue of ‘exceptional
circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human
Servicesii (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy
Mining Machinery)iii as set out below:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett
Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256)
described exceptional circumstances as simply circumstances sufficient to render it
just and equitable to grant relief.
[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations
dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent
decision, also noted that the expression had been considered by the courts on
numerous occasions:
Although the expression “exceptional circumstances” is not defined in the
Regulations, it has been the subject of consideration in numerous cases.
Assistance in interpreting the expression can be found in comments of Lord
Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as
follows:
We must construe “exceptional” as an ordinary, familiar English
adjective, and not as a term of art. It describes a circumstance which is
such as to form an exception, which is out of the ordinary course, or
unusual, or special, or uncommon. To be exceptional a circumstance
need not be unique, or unprecedented, or very rare; but it cannot be
one that is regularly, or routinely, or normally encountered.”iv
[13] In addition, the Full Bench in Cheval Properties Pty Ltd trading as Penrith Hotel
Motel v Janette Smithersv characterised exceptional circumstances as:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as
“forming an exception or unusual instance; unusual; extraordinary.” We can
apprehend no reason for giving the word a meaning other than its ordinary meaning
for the purposes of s.394(3) of the FW Act.”vi
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[14] The relevant period of “delay”, in considering the reason for the delay, according to
Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank (Shaw) vii
is the period beyond the prescribed period for filing.
[15] In the current case the Applicant’s representative lodged the application one day late
after receiving proper instructions in the matter from the Applicant. A Full Bench of the
Commission in Robinson v Interstate Transport Pty Ltdviii considered representative error as
follows:
“The approach to representative error as an acceptable explanation for late
lodgement has been considered by Full Benches of Fair Work Australia and its
predecessors in the context of various Acts. The approach followed was first set out by
a Full Bench in Clark’s Case16 in the context of the exercise of a discretion to extend
time under s 170CE(8) of the Workplace Relations Act 1996 (Cth) (the WR Act). It was
followed by a Full Bench in Davidson’s Case17 in relation to s 170CFA(8) of the WR
Act. More recently, a majority of the Full Bench in McConnell’s Case18 found that the
approach remained apposite to the exercise of the discretion in s 366(2) of the Act.19
We too think that the approach in Clark’s Case provides appropriate guidance for
consideration of representative error in the context of the exercise of the discretion
within s 366(2) of the Act. We think that representative error, in circumstances where
the applicant was blameless, would constitute exceptional circumstances under s
366(2), subject to consideration of the statutory considerations in ss 366(2)(b) to (e) of
the Act. The approach in Clark’s Case was summarised in Davidson’s Case as
follows:
In Clark the Commission decided that the following general propositions
should be taken into account in determining whether or not representative
error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error
may be a sufficient reason to extend the time within which an
application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned
to an applicant’s representative where the applicant is blameless and
delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding
whether representative error provides an acceptable explanation for
the delay in filing the application. For example it would generally not
be unfair to refuse to accept an application which is some months out of
time in circumstances where the applicant left the matter in the hands
of their representative and took no steps to inquire as to the status of
their claim. A different situation exists where an applicant gives clear
instructions to their representative to lodge an application and the
representative fails to carry out those instructions, through no fault of
the applicant and despite the applicant’s efforts to ensure that the claim
is lodged.
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(iv) Error by an applicant’s representatives is only one of a number of
factors to be considered in deciding whether or not an out of time
application should be accepted.”ix
[16] The reasoning provided in relation to the late filing of the application was attributable
to representative error and, in accordance with the case authorities, such prejudice should not
be visited upon the Applicant. Accordingly, pursuant to s.394(2)(b), the discretion to extend
time is exercised; to extend the time frame by one day, to allow the application. I Order
accordingly.
[17] The Respondent has raised an objection to the Commission’s jurisdiction on the basis
that the termination was a genuine redundancy. In accordance with s.396(d), the Commission
must consider this matter, prior to considering the merits of the application.
[18] An unfair dismissal does not include a dismissal, where it was a case of genuine
redundancy:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.
[19] A genuine redundancy is one within the meaning of s.389 of the Act which states:
389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be
performed by anyone because of changes in the operational requirements of
the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or
enterprise agreement that applied to the employment to consult about the
redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have
been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
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(b) the enterprise of an associated entity of the employer.
Submissions and Considerations
[20] The consideration of a redundancy requires an assessment of all the matters in s.389 of
the Act.
s.389(1)(a) - whether employer no longer required person’s job to be performed by anyone
because of changes in the operational requirements of the employer’s enterprise
[21] The issue of the redundancy is not disputed between the parties that the Applicant’s
job in Gladstone was no longer required to be performed by anyone. The Applicant had been
employed by the Respondent since 25 July 2011, a total of 3 years and 8 months.
[22] In July and August of 2014, the Respondent held meetings with Gladstone
administration staff regarding the downturn of business and the possibility that staff may have
to be terminated and offered casual positions. On 15 August 2014, termination letters were
sent to 3 administrative staff including the Applicant, advising of termination of their full-
time employment, that they have 4 weeks notice, and that they has been offered casual
employment, which, if accepted, would commence on 12 September 2014.
[23] The Respondent submitted it had discussions with staff about the need for terminating
their full time employment, and changing to casual in July and August 2015, and that it sent
termination letters to staff on 15 August 2014, along with letters of offer for casual
employment for 4 days per week. The Respondent submitted that, in September 2014, it
agreed to hold the Applicant’s termination “in abeyance” until the course of her cancer
treatment was known.
[24] The Applicant remained (as per the reasons set out previously) in her full time role
until 2 April 2015 when her employment ended, as her job had become redundant and she did
not accept the casual position or the full time role in Biloela.
[25] The Applicant’s full time employment did not end at the same time as the other two
administration employees, because there was an agreement between the parties, that because
the Applicant was ill, her termination would be “held in abeyance”.
[26] When a person’s job is no longer required to be performed by anyone is not an
absolute consideration. The Explanatory Memorandum to the Fair Work Bill relevantly
provides:
“Clause 389 – Meaning of genuine redundancy
1546. This clause sets out what will and will not constitute a genuine redundancy. If a
dismissal is a genuine redundancy it will not be an unfair dismissal.
1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of
genuine redundancy if his or her job was no longer required to be performed by
anyone because of changes in the operational requirements of the employer’s
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enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or
undertaking.
1548. The following are possible examples of a change in the operational
requirements of an enterprise:
a machine is now available to do the job performed by the employee;
the employer’s business is experiencing a downturn and therefore the employer only
needs three people to do a particular task or duty instead of five; or
the employer is restructuring their business to improve efficiency and the tasks done
by a particular employee are distributed between several other employees and
therefore the person’s job no longer exists.
1549. It is intended that a dismissal will be a case of genuine redundancy even if the
changes in the employer’s operational requirements relate only to a part of the
employer’s enterprise, as this will still constitute a change to the employer’s
enterprise.
1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if
an employer does not comply with any relevant obligation in a modern award or
enterprise agreement to consult about the redundancy. This does not impose an
absolute obligation on an employer to consult about the redundancy but requires the
employer to fulfil obligations under an award or agreement if the dismissal is to be
considered a genuine redundancy.
1551.Subclause 389(2) provides that a dismissal is not a case of genuine redundancy
if it would have been reasonable in all the circumstances for the person to be
redeployed within the employer’s enterprise, or within the enterprise of an associated
entity of the employer (as defined in clause 12).
1552. There may be many reasons why it would not be reasonable for a person to be
redeployed. For instance, the employer could be a small business employer where
there is no opportunity for redeployment or there may be no positions available for
which the employee has suitable qualifications or experience.
1553. Whether a dismissal is a genuine redundancy does not go to the process for
selecting individual employees for redundancy. However, if the reason a person is
selected for redundancy is one of the prohibited reasons covered by the general
protections in Part 3-1 then the person will be able to bring an action under that Part
in relation to the dismissal...”
[27] In summary terms, regarding the redundancy, the Respondent submitted that in
January to February 2015, it held discussions with the Applicant regarding the need for the
Applicant to transition to casual employment, and also offered her a full time role in Biloela.
The Applicant submitted these alternative roles were not attractive to her. The Respondent
stated it had additional administrative work for the Applicant at this time, to complement her
payroll position, which at this time was only requiring 2 to 3 days per week. During this
period, the Respondent indicated to the Applicant, that if the Biloela job was not accepted, the
alternative was the casual job in Gladstone for 4 days per week.
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[28] In terms of the above offer, on 3 March 2015, the Respondent stated it had a meeting
with the Applicant (MC below) where they offered her a Payroll Officer Role (that had just
been vacated) at the Biloela office. The Respondent stated the Applicant asked for some time
to think about it, and that they gave her until the 5 March 2015. The Respondent submitted
that:
“On the intervening day MC requested consideration of travel costs and increased
hourly rate. Based on her existing rate, options for local accommodation, and the
distance, our opinion was that the remuneration she enjoyed was appropriate for the
role and experience level. We declined any additions to her terms and conditions.”
[29] The Applicant was concerned that the Biloela job involved travel time of more than 2
hours for a return trip. The Respondent submitted that the Applicant declined the offer on 5
March 2015, and the Respondent therefore indicated it would move her to a casual role in the
Gladstone office. The Respondent submitted that, whilst it issued notice to the Applicant of
the redundancy on 15 August 2015; this had been held in abeyance, and out of fairness they
gave the Applicant a further 4 weeks notice from 5 March 2015, (as per the NES), ending on
2 April 2015, along with an offer of casual employment.
[30] The Respondent submitted it received a letter from the Applicant on 1 April 2015
outlining her position that she believed she had been made redundant and requesting her
redundancy payment. In response, the Respondent sent an email outlining that the Applicant
had not been made redundant as they had offered acceptable alternative employment.
[31] The Respondent submitted the parties arranged a meeting on Thursday 2 April 2015 to
discuss the letter and the Applicant’s response. During the meeting, the Respondent stated the
Applicant maintained her position that full time payroll position in Biloela, and the 4 day per
week casual role in Gladstone were both unacceptable, and asked if she was being terminated.
The Applicant stated Mr Earl, CEO of the Respondent, told her he had already terminated her
employment due to redundancy in the letter of 5 March 2015. It was submitted further that Mr
Earl explained that he would file an application with the Fair Work Commission to dispute
that there was a severance amount payable in the circumstances.
[32] Following the meeting, further correspondence passed between the parties, in which
the Applicant maintained her position regarding the redundancy and reiterated she would not
accept the casual employment as she considered it did not provide her with security of
employment. The Respondent stated it told the Applicant they were filing a s.120 application
form with the FWC.
[33] The Applicant submitted her employment was terminated on 2 April 2015 due to a
severe business downturn. The Applicant submitted she declined the offer for a payroll role
in Biloela, and was subsequently offered a casual role of 4 days per week, which she also
declined.
[34] It is clear on the evidence that the decline in business in the context of the Gladstone
operations cause the Applicant’s job to be made redundant.
s.389(1)(b) - whether employer has complied with any obligation in a modern award or
enterprise agreement that applied to the employment to consult about the redundancy.
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[35] The obligation to consult is not an absolute obligation to consult. The Full Bench in
Ulan Coal Mine Limited v Henry Jon Howarth and others (Ulan No. 1) said:
“We do not consider, in the particular circumstances of the present matter and having
regard to the obligation under sub-clause 23.1 of the Agreement, that a further round
of discussions was required to be held by the Company with the employees to be
dismissed, either separately or as a group. This does not mean that such separate
discussions might not be worthwhile and appropriate e.g. as part of the consideration
of measures to mitigate the adverse affects of terminations or to ensure that
opportunities for other employment and assistance are properly examined. However
they are not part of the discussions envisaged and required under sub-clause 23.1 of
the Agreement and that is the test in these particular circumstances. In different
circumstances this will of course vary according to the terms of particular awards and
agreements.”x
[36] The Applicant, in her submissions, recognised the Respondent’s discussions and
notifications of the decline in the Respondent’s business, as the basis for the termination. In
addition, the Respondent made reference to the two notifications of the redundancy to the
Applicant and the delay to the implementation of the redundancy around the Applicant’s
circumstances. It is considered that the requirement to consult, in accordance with s.389(1)(b),
has been met.
s.389(2) - whether reasonable in all the circumstances for the person to be redeployed
within the employer’s enterprise or the enterprise of an associated entity of the employer.
[37] As a result of the decisions in Ulan No. 2 and Pykett, in terms of considering
redeployment, a two step process may be identified. First, a job, position or other work must
be able to be identified, and second, redeployment to this job, position or other work must be
reasonable in all of the circumstances.
[38] The requirement to redeploy is framed in the past tense and therefore, as noted in
Pykettxi, directs attention to the circumstances which existed at the time the person was
dismissed. In Ulan No. 2, it was held that the question of whether redeployment would have
been reasonable, is to be applied at the time of the dismissalxii.
[39] In the case of Teterin and Others v Resource Pacific Pty Limited T/A Ravensworth
Underground Mine xiii (Teterin), the Full Bench considered which party bore the evidentiary
burden in relation to satisfying the Commission that redeployment would have been
reasonable in all the circumstances. The Full Bench found that the employer respondent in
that case would have satisfied the evidentiary onus, in any case, due to the extensive nature of
the evidence it led:
“There can be no doubt that, to the extent the respondent in the proceedings at first
instance bore an evidentiary onus with respect to s.389(2), it discharged that onus. It
called extensive evidence, principally from Mr Kirsten, concerning the steps the
respondent had taken to explore redeployment opportunities and why, ultimately, the
appellants could not be redeployed...xiv”
[40] It is clear that the Applicant’s job has been made redundant. What was at issue
between the parties is whether a severance payment was justified by the Applicant in
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circumstances of the alternative jobs offered to the Applicant, that is, whether they were
reasonable in the circumstances and further, whether applicable notice had been provided to
the Applicant.
[41] The Respondent in this matter considered they had discharged their obligations to
provide notice of termination in circumstances of redundancy and further discharged the
obligation to pay severance, in circumstances where they had accommodated the significant
personal circumstances of the Applicant to defer the implementation of the redundancy
decision, and had offered alternative employment.
[42] The Respondent, in an associated application, made under s.120, seeking to vary the
redundancy pay, outlined the circumstances of the redundancy and the alternative offers of
employment. This s.120 application was overtaken by the Applicant’s application, pursuant to
s.394 and the associated consideration of the jurisdictional objection to the application on the
grounds of redundancy.
[43] The Respondent maintained that the Applicant was first advised of the termination of
her position in 2014 by correspondence. Subsequently, the Applicant was diagnosed with
cancer and in recognition of the circumstances, the Respondent organised that the Applicant
could access the employment insurance provisions to cover her wages whilst undergoing
treatment for cancer. Her employment was further extended for circumstances affecting her
family and was also extended to accommodate a planned annual leave vacation.
[44] In those circumstances, where the Respondent considered they had been pastorally
caring to the Applicant, to recognise and to defer the redundancy to allow for her personal
circumstances, the Respondent submitted it was therefore frustrated by this further claim for
unfair dismissal, and the claim for severance payment.
[45] The Applicant was given further notice earlier this year that the full-time job was no
longer required due to redundancy. In these circumstances, she was offered an alternative
payroll position in Biloela or a casual position at the Gladstone office where she had worked.
She did not find either of these positions suitable in the circumstances, given the distance to
travel approximately one hour in either direction for the Biloela position and she considered
the casual position with its lack of security was not an adequate alternative. A genuine
redundancy does not exist where it would have been reasonable in all the circumstance for the
Applicant to by redeployed into another position. The Biolela position and the casual position
were offered to the Applicant as redeployment options. The Applicant refused these.
[46] Based on her length of service, the Applicant would have been entitled to 7 weeks
severance. The Applicant would have earned the equivalent income from the number of
casual hours offered to her and when she refused this position, another employee was
employed and has earned the equivalent amount of income from the casual position. I
recognise the return trip of over two hours to the Biloela position was a significant
impediment to taking this job, and I consider it was reasonable to offer to redeploy the
Applicant into the casual position in this situation, which the Applicant refused. There was no
argument raised by the Applicant that the Respondent had failed to redeploy, or offer to
redeploy, the Applicant into an alternative position.
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[47] Accordingly, I consider that the Applicant was given adequate notice on two occasions
of the termination due to the redundancy and was offered redeployment to two other
positions, which she declined.
Conclusion
[48] Where the Respondent raises a jurisdictional objection, the onus is on the Respondent
to satisfy the Commission of their case.xv
[49] The Respondent has established that the dismissal was a case of genuine redundancy;
that the job the Applicant performed was no longer required to be performed, that appropriate
consultation was undertaken with the Applicant, and the Applicant has been offered
redeployment.
[50] On the basis of the facts of the matter, as per the evidence and submissions, the
Applicant’s termination was a case of genuine redundancy in accordance with s.389(1)(a),
s.389(1)(b) and (2) of the Act.
[51] The jurisdictional objection by the Respondent, that is, that the termination of
employment was a genuine redundancy, is upheld and therefore, the Applicant was not
unfairly dismissed, but genuinely made redundant.
[52] Accordingly, the Applicant’s application, filed pursuant to s.394 of the Act, is
dismissed, in accordance with s.389 of the Act.
[53] I Order accordingly.
[54] Given the termination has been determined as a genuine redundancy, the amount of
severance payment owing is outstanding. The Respondent has indicated it will re-file its s.120
application for a determination of the matter, and by consent, the matter will move to a
determination on the issue of severance.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code C, PR568238
i Lewis v Altus Traffic Pty Ltd [2015] FWCFB 259.
FAIR WORK CO. MAISSION AUSTRALIA THE SEAS
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iiWheelan C, [2009] FWA 1638, [30] and [31].
iii Lawler VP, [2010] FWA 1394.
iv In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.
v Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251.
vi Ibid at [5].
vii [2015] FWCFB 287 at [12].
viii [2011] FWAFB 2728.
ix Ibid at [24].
x [2010] FWAFB 3488 at [31].
xi [2014] FWCFB 714 at [24].
xii at [28].
xiii Bruce Teterin, Ronald Leggett, Danny Garaty, Steven O'Donnell, Phillip Gardner, Joseph Fogg, Michael Bower, Anthony
Anderson, Jason James, Michael Roe, Paul Watkins, Peter Lye v Resource Pacific Pty Limited t/a Ravensworth
Underground Mine [2014] FWCFB 4125.
xiv Ibid at [30].
xv Crema and Others v Abigroup Contractors [2012] FWA 5322, Commissioner Cribb, at [81].
