| [2019] FWC 6706 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Symon Obradovic
v
South Coast Curtains and Blinds
(U2019/8549)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 26 SEPTEMBER 2019 |
Application for an unfair dismissal remedy – incorrect date for the date the employment ceased recorded by employer on the separation certificate – applicant had regard to incorrect date on separation certificate when lodging unfair dismissal application – extension of time granted.
[1] On 1 August 2019, Mr Symon Obradovic filed an application (the Application) for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).
[2] In its Form F3 – Employer response to unfair dismissal application (Form F3) 1 filed on 12 August 2019, Southcoast Curtains and Blinds (the Respondent) objected to the Application on the following bases:
• The application is out of time (ie lodged more than 21 days after the dismissal took effect); and
• The dismissal was a case of genuine redundancy.
[3] The initial question which must be answered in respect of the Respondent’s first jurisdictional objection is whether the Application was actually lodged after the prescribed 21-day time period in s.394(2)(a) of the Act. This requires identification of the date upon which Mr Obradovic’s termination of employment took effect.
[4] There is a dispute as to the date upon which the termination of Mr Obradovic’s employment with the Respondent took effect. While the Respondent claims Mr Obradovic’s employment was terminated on 28 June 2019, Mr Obradovic’s position is that the effective date of his dismissal was 15 July 2019.
[5] As outlined below at [27] – [31], I have decided to proceed on the basis that Mr Obradovic’s employment was terminated with immediate effect on 28 June 2019. Therefore, the Application for relief from unfair dismissal made on 1 August 2019 was not made within 21 days after the date the dismissal took effect, as required under s.394(2)(a) of the Act. It was made 13 days late.
[6] This decision only concerns whether I should exercise my discretion to allow Mr Obradovic a further period of time for the Application to be made.
[7] This matter was originally listed for a conciliation conference on Wednesday 4 September 2019 but this did not proceed because the Respondent requested that its jurisdictional objection be heard first. The Notice of Listing fixing this matter for Jurisdiction (Extension of Time) Conference/Hearing required Mr Obradovic’s material to be filed and served by noon on 23 August 2019 and the Respondent’s material to be filed and served by noon on 6 September 2019. In response, the parties completed Outlines of Argument but neither filed or served Statements of Evidence nor did they file or serve Document Lists.
[8] At the commencement of the Jurisdiction (Extension of Time) Conference/Hearing on 20 September 2019, appearances were taken. Mr Obradovic appeared in person and Mr Dean Ray, the owner of the Respondent, appeared on its behalf. I consulted with the parties as to their views on whether the matter should proceed by way of determinative conference or formal hearing. After consideration of the requirements of s.399(1) of the Act, I determined it would be most appropriate for the matter to be dealt with by way of a determinative conference.
[9] I also raised with the parties my observation that their Outlines of Argument appeared to contain material that was in the nature of proposed evidence and it was my intention to treat it as such. I was conscious neither was represented and that they may not have fully appreciated the distinction between an Outline of Argument and Statement of Evidence in Commission proceedings. The parties agreed to this course of action.
[10] Finally, while both Mr Obradovic and the Respondent named “Southcoast Curtains and Blinds” with the Australian Business Number (ABN) of 39 615 347 610 as the Respondent in the Form F2 – Unfair dismissal application (Form F2) and Form F3 respectively, my review of the ABN 39 615 347 610 on ABN Lookup revealed that the entity name is “Southcoast Curtains and Blinds Pty Ltd”.
[11] I raised this with the parties and Mr Ray confirmed this was the case. I have therefore determined that I should amend the application for unfair dismissal remedy made by Mr Obradovic so as to record “Southcoast Curtains and Blinds Pty Ltd” as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act. 2 The parties agreed with this course of action.
[12] In his Form F2 Unfair Dismissal Application, 3 Mr Obradovic outlined:
• that he was notified of his dismissal on 28 June 2019 and it took effect on that day too;
• his employer told him he was “putting me off now and giving me two (2) weeks’ notice and that he didn’t expect me to come in. He asked for my keys which I handed over to him and I worked out door”.
[13] At Question 3 in his Outline of Argument, 4 Mr Obradovic submitted that the “official date on my separation certificate was the 15/07/2019, but on the 28/06/2019 I was told I was not expected to return to work and would be paid my two weeks notice but not to come in.”
[14] In an email to the Fair Work Commission (the Commission) dated 23 August 2019 5 Mr Obradovic stated that 28 June 2019 was the date he was told his dismissal “started” but that the “official date on the work separation certificate is 15/07/2019”. Mr Obradovic stated he should have put this date on the F2 Form but didn’t think of it at the time “due to being a stressful time” and that he believed his Form F2 was lodged within the 21 days “guidelines” and the Respondent would have realised this because it had signed his separation certificate.
[15] The separation certificate provided by Mr Obradovic to the Commission comprises only one page of two. I requested a copy of the second page. When Mr Obradovic was unable to provide one, Mr Ray supplied an unsigned copy of the second page and advised me that the original signed certificate had been given to Mr Obradovic. Mr Ray presumed Mr Obradovic had submitted it to Centrelink. It was agreed that a review of the two pages of the separation certificate 6 revealed:
• “Date employment ceased” is recorded as 15 July 2019;
• Pay in lieu of notice of 10 working days is recorded as having been paid on 1 July 2019;
• An unused annual leave entitlement of 16 days was recorded as having been paid on 1 July 2019; and
• The certificate is recorded as having been completed on 9 July 2019.
[16] In the Form F3, the Respondent recorded that Mr Obradovic was notified of his dismissal on 28 June 2019 and it took effect on that day too. It was also recorded that Mr Obradovic “finished work” on 28 June 2019. 7
[17] In answering Question 1.c in its Outline of Argument, the Respondent stated the dismissal took effect immediately on 28 June 2018 and Mr Obradovic was advised as such on that day and that he would be paid two weeks’ pay in lieu of notice. It was further stated that Mr Obradovic:
• left the business shortly after;
• understood that he was not required to do anything more;
• did not come back to the business except to collect a separation certificate he had asked to be prepared.
[18] The Respondent contends that the separation certificate was both dated and provided to Mr Obradovic on 9 July 2019 and that his final pay had been transferred on 1 July 2019. It asserted Mr Obradovic’s employment “clearly ended on 28 June and not 15 July. The 15 July date was in error as it was intended only to show that the employee received 2 weeks pay for the period 29 June to 15 July”. 8
[19] During the determinative conference before me, there was no dispute that a conversation between Mr Ray and Mr Obradovic took place on 28 June 2019 and they were the only participants in it. Further, there were no witnesses to the conversation nor was its outcome confirmed in writing. The parties also confirmed there was no written contract of employment.
[20] Mr Obradovic said Mr Ray told him that he wanted to restructure the Respondent’s business and wanted installers who were able to conduct sales as well as installation. He said Mr Ray told him that he did not believe such a role was for him. Mr Obradovic said that when Mr Ray told him he did not think that he (Mr Obradovic) was suitable for sales, he responded by saying that he had never been asked to do sales for the Respondent. He said Mr Ray told him he was going to have to put Mr Obradovic off, stating “I will give you your two weeks’ notice, I do not expect you to come in.” Mr Obradovic said when he asked what that meant for him, Mr Ray said: “Well, you’re finished now”. Mr Obradovic said Mr Ray then asked for the key back and he complied, before leaving the premises. Mr Obradovic said he was told he did not have to come back and that he was finished then.
[21] Mr Ray’s account was that he explained to Mr Obradovic that he did not think he could do the job. He said he recounted to Mr Obradovic how Mr Obradovic had said to him in the past that he could not do some of the jobs that his senior employee was doing, such as picking colours for customers (disputed by Mr Obradovic) and told him that he had to make a decision because the Respondent’s senior employee was leaving. Mr Ray said he told Mr Obradovic that the only way he could see the business moving forward was to get someone who could do both jobs and not be just an assistant.
[22] Mr Ray said he told Mr Obradovic:
• he did not expect him to come in;
• he would give him two weeks’ notice; and
• he would pay him out in lieu of notice and finish him up that day.
[23] Mr Ray said he told Mr Obradovic that his employment was finished as of that day and upon his request, Mr Obradovic returned the key he held before leaving. Mr Obradovic agreed that he was told his employment had finished that day.
[24] It is not in dispute that payment of the pay in lieu was made on Monday 1 July 2019 and Mr Obradovic subsequently sought a separation certificate from the Respondent.
[25] Mr Obradovic said he went to Centrelink approximately 1.5 weeks after he was dismissed on 28 June 2019 and was told he needed to get a separation certificate before he could apply for government benefits. Mr Obradovic said he telephoned the Respondent and organised to get a separation certificate, which was completed within a day or two. He said he then collected it and delivered it to Centrelink. Mr Obradovic confirmed that when he requested the separation certificate he already understood his employment had finished.
[26] Mr Ray said he filled the separation certificate out, having sourced it online, before signing it and placing it in an envelope for Mr Obradovic to collect. He said the reason why he recorded 15 July 2019 as the day the employment ceased was because that was when Mr Obradovic’s two weeks’ pay in lieu was paid until and he thought that was what Centrelink would need to know. Mr Ray suggested he was probably naïve in doing so and should “probably have put 28 June 2019”.
[27] Section 394(1) of the Act provides that a person who has been dismissed may apply for an unfair dismissal remedy and s.386(1) of the Act outlines when a person has been ‘dismissed’ as follows:
“386(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[28] In Mihajlovic v Lifeline Macarthur, 9 a Full Bench of the Commission gave meaning to the term “dismissed” in the context of s.386(1)(a) of the Act and a person’s “employment with his or her employer has been terminated on the employer’s initiative” when:
“…the person’s employment relationship with the employer has ended, and that where the employee has been terminated on notice, the employment relationship ends when the notice period expires. Because s.386(1) defines when a person has been dismissed for the purpose of s.394(1), the same propositions apply to the meaning of the expression “A person who has been dismissed” in s.394(1). Section 394(1) therefore requires a person’s employment to have terminated in order for that person to make an application for an unfair dismissal remedy.” 10
[29] The question of when the employment relationship ends when an employee is terminated with pay in lieu of notice was considered by Chief Justice Wilcox in Siagian v Sanel Pty Ltd (Siagian), 11 where identifying the date of the applicant’s dismissal was required in order to determine whether he could pursue his application. His Honour stated:
“Counsel’s second argument is that, because of the payment in lieu of notice, the termination did not occur on 29 March but at the date of expiration of the period for which payment was made, 15 April. If this argument is correct, s.170EE orders are available.
This argument also raises a complex problem. The problem arises because of the ambiguity inherent in the words “payment in lieu of notice”. The ambiguity was pointed out by Waite J, in Leech v Preston Borough Council [1985] ICR 192 at 196:
“... it is clear from the authorities cited to us, ... all of which are confirmed by the experience of our lay members, that the expression ‘payment in lieu of notice’ is regularly used throughout industry in one or other of two quite different senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he had been given the notice to which he is entitled by law. The second, which is the colloquial and grammatically inaccurate one, is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period.”
Although Waite J did not spell out the result that flowed from each meaning, it is clear from other decisions that, in the first case, the employee’s employment terminates upon the date of payment of the lump sum. In the second case, the employment extends until the expiration of the period for which the payment was made.
The question whether a payment in lieu of notice immediately terminates the employment is always one of fact. In Leech at 196-197 Waite J said that the proper inference as to the sense in which the expression is used may turn upon “very subtle indications or nuances of wording which will have to be weighed carefully according to their context”. The difficulty, of course, is that the parties will normally not have made the position clear. They will probably not have averted to the distinction made by Waite J. The Court will be left to put its own interpretation on their actions.” 12
[30] The Chief Justice expressed the opinion that there is a prima facie position that where parties use the words “payment in lieu of notice”, there is to be no notice and the employment is to terminate immediately. 13 Having considered a range of authorities, His Honour stated:
“In his work The Contract of Employment (1975) M R Freedland at 188 says:
“It would seem that a lawful termination by payment in lieu of notice normally results in an immediate termination of the contract of employment. The termination will not be projected to the end of the notional period of notice. The payment should be regarded as a lump-sum payment, equal to the amount of wages during the period of notice, rather than as payment of actual wages for a period of notice during which the services of the employee are not required. ... It would seem also that termination with payment in lieu of notice will, in practice, be regarded as resulting in an immediate termination of employment for the purposes of liabilities of employer and employee to social security contributions. It would in general seem correct to hold that such payments in lieu of notice result in an immediate termination of the contract of employment because the payment is related to wages only in that these quantify the payment.”
I think these statements are justified by the authorities. It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.” 14 (my emphasis)
[31] Having considered Siagian, the circumstances of this case and the evidence of the discussion between Mr Obradovic and Mr Ray on 28 June 2019, I am satisfied that Mr Obradovic’s employment was terminated with immediate effect on 28 June 2019. I do not consider there could have been any confusion as to this when the conversation between Mr Obradovic and Mr Ray concluded on 28 June 2019. I accept Mr Ray’s evidence as to why he recorded 15 July 2019 as the day the employment ceased on the separation certificate and consider there was nothing on the facts of this case to suggest that the employment relationship was to continue until 15 July 2019.
[32] Having found Mr Obradovic’s employment was terminated on 28 June 2019, I will now consider whether an extension of time should be granted.
[33] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s.394(3) of the Act. These are:
(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.
[34] Only if the Commission is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[35] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 15 where the Full Bench said:
“[13] 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. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. 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.” [Endnotes not reproduced]
[36] I will now address the legislative criteria.
[37] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 16 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,17 the Full Bench explained the approach to be taken by reference to the following example:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.” 18
[38] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. Although outlined in the context of a general protections application involving dismissal, the approach to be taken as explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis) 19 is instructive:
“[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
[39] The 21 day time period for Mr Obradovic to make an unfair dismissal application pursuant to s.394 of the Act expired on 19 July 2019. As outlined in paragraph [5] above, the Application filed on 1 August 2019 was 13 days late.
[40] Mr Obradovic said when he went to Centrelink for assistance approximately 1.5 weeks after he was dismissed on 28 June 2019, he was told by Centrelink that they could not help him until his employment had ceased and he had used the termination pay or benefits he had received. He said that having been advised this, he proceeded to organise his paperwork. Mr Obradovic also said that when at Centrelink, he was told he needed to get a separation certificate and so he telephoned the Respondent and organised to get one, which was completed within a day or two. He said he then collected it and delivered it to Centrelink.
[41] Mr Obradovic also said that he made contact with the local office of Fair Work Ombudsman approximately 1.5 weeks after 28 June 2019 and was directed to the Commission’s website. Mr Obradovic said he was told by the official in the local office of Fair Work Ombudsman that he had 21 days after his employment ended to make application, otherwise he would have to seek an extension. Having accessed the Commission’s website on the same day, Mr Obradovic undertook the Commission’s unfair dismissal eligibility quiz and was persuaded by the result to pursue the Application. Mr Obradovic said he then referred to his separation certificate because he had been given two weeks’ notice and he wondered at which point his actual employment ended “legally”. He said he calculated the 21 days by reference to the separation certificate because he considered it to be a legal document indicating when his employment ceased.
[42] As to why he did not lodge the Application until 1 August 2019, Mr Obradovic said he had to get some “legal help” to fill out the form and decide whether he wanted to make the application for unfair dismissal. He said he was advised by his “Work Provider” (Matchworks) and a legal “adviser” that he should go through with the Form F2. Mr Obradovic said that he told them he was working off the 15 July 2019 date on the separation certificate, and they told him that as long as he got things done before the 21 days from that, he would be able to apply. Mr Obradovic said he wanted to make sure everything was right and that he had gone through the right process.
[43] Mr Obradovic also raised having been stressed as a result of his termination. It was held in Giles v Mandurah Aquatic and Recreation Centre that it is not unusual for employees to be distressed when their employment is terminated and nor is it unusual for employees to be unaware of their options. 20 Further, it has previously been found that it is common for employees to suffer shock and trauma as a result of dismissal from employment21 and it was said in Casey v Guardian Community Early Learning Centres T/A Smith Street Childcare:
“…stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay.” 22
[44] While I can accept Mr Obradovic may have been stressed following the termination of his employment, I am of the view this is not unusual. Further, in making this submission Mr Obradovic did not put forward any supporting evidence indicating he had required medical treatment and nor did he submit it had impacted on his capacity to make the Application within the required time period.
[45] However, having considered the facts as presented, I am satisfied that Mr Obradovic has provided a credible explanation for the entirety of the delay in filing the Application. While Mr Obradovic left the conversation with Mr Ray on 28 June 2019 with the understanding that his employment had been terminated as of that date, I am persuaded that as a result of his dialogue with Centrelink approximately 1.5 weeks later, Mr Obradovic then placed great significance on the separation certificate as a framer of his legal rights and attached primacy to the 15 July 2019 date recorded on it as the date upon which his employment ceased. I consider that had Mr Obradovic not been labouring under the misapprehension that his employment had ceased on 15 July 2019 because of the date recorded by Mr Ray on the separation certificate, and instead appreciated that date upon which the termination of his employment took effect was 28 June 2019, he would have moved to file the Application earlier than 1 August 2019. This is because he was aware from approximately 1.5 weeks after 28 June 2019 that he had 21 days after his employment had ended to make application.
[46] I am therefore satisfied this factor weighs in favour of a finding of exceptional circumstances and granting Mr Obradovic an extension of time.
[47] Mr Obradovic does not dispute he was notified by Mr Ray on 28 June 2019 that his employment was terminated and I am satisfied, based on his evidence, that Mr Obradovic left the conversation with Mr Ray with the understanding that his employment had been terminated as of that date.
[48] I am therefore satisfied that Mr Obradovic was aware of the dismissal on 28 June 2019 and as such, Mr Obradovic had the full 21 days after the dismissal took effect within which to lodge the Application, even if the separation certificate issued approximately 8 days later led him to believe the dismissal was to take effect on 15 July 2019.
[49] This consideration weighs against a finding that there are exceptional circumstances.
[50] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 23
[51] I do not consider Mr Obradovic’s actions in making request for a separation certificate on or about 8 July 2019 was action taken to dispute the dismissal and note there is no evidence suggesting Mr Obradovic raised the issue of making an unfair dismissal application with the Respondent at this time. Further, that there was no dialogue at all between Mr Obradovic and Mr Ray after 28 June 2019, nor any correspondence, is not in dispute.
[52] Mr Ray says he first learned of Mr Obradovic’s challenge to his dismissal when he received the email from the Commission on or about 7 August 2019 that notified him of the Application. I have however noted that when Mr Ray told Mr Obradovic that he wanted installers who were able to conduct sales as well as installation and that he did not think that he (Mr Obradovic) was suitable for sales, Mr Obradovic responded by saying that he had never been asked to do sales for the Respondent.
[53] Having regard to these matters, I am satisfied that apart from challenging Mr Ray’s justification in the extremely minor respect I have outlined in the preceding paragraph, Mr Obradovic failed to dispute the dismissal until 1 August 2019, the day upon which he lodged the Application, and therefore this consideration is almost irrelevant in the present circumstances in assessing whether there are exceptional circumstances.
[54] Prejudice to the employer will weigh against granting an extension of time. 24 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.”25
[55] Mr Obradovic submitted that the delay has not caused the Respondent to suffer any disadvantage or unfairness.
[56] Mr Ray did not seek to argue that the Respondent was prejudiced due to the delay.
[57] I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period but do not consider this is as a factor that weighs in favour of the grant of extension of time. It is a neutral factor.
[58] In Mr Keith Long v Keolis Downer T/A Yarra Trams, 26 the Full Bench stated that for the consideration in s.394(3)(e) to weigh in favour of granting an extension of time, it must be shown that there is some merit in the substantive application and further, the weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.
[59] As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case” 27 for the purpose of determining whether to grant an extension of time to the applicant to make their application. In particular, it is considered “undesirable that parties be exposed to the requirement to present their evidentiary cases twice”.28 I have adopted this reasoning.
[60] Mr Obradovic’s case on the merits is that his employment was terminated without being first offered another role in the business or training in sales, and further, that he had not been told of any business changes and that he had never had any written warnings or “meetings about his work”. Mr Obradovic also asserts he is entitled to greater termination pay.
[61] Mr Ray disputes Mr Obradovic is entitled to greater termination pay and says that redundancy pay does not apply to Mr Obradovic’s employment because the Respondent is a small business employer. The Respondent maintains that there had been a change in the operational requirements of the business due to the workload of the business requiring two mobile sales, quotes and blind/curtain installers, rather than just one with an assistant. It submits it could not afford to pay for an assistant. Mr Ray states that when he had discussed the possibility of Mr Obradovic taking on this role previously, the response had been “I’ll never be able to do what they do” and that Mr Obradovic was “only able to work on small jobs unsupervised.” 29 The Respondent submitted it tried to get Mr Obradovic to become a sales consultant /installer but he did not possess the skills and was not interested in training.30 Mr Ray said while the Respondent had worked hard to bring Mr Obradovic “up to speed”, he had formed the view that Mr Obradovic was always going to be an assistant and not an individual installer/salesperson.
[62] The Respondent submits the termination of Mr Obradovic was a case of genuine redundancy, with the work previously done by him now being split between all remaining staff in the business. 31 The parties disputed the premise for the conversion of Mr Obradovic’s employment status, approximately twelve months prior to his dismissal, from part time to full time.
[63] Assessing the reasons for Mr Obradovic’s dismissal involves the resolution of contested issues of fact which I consider would only be able to be determined after a full hearing on the merits, including more fulsome evidence and the testing of it through cross examination of relevant witnesses. In these circumstances, I consider the merits of the Application to be a neutral consideration in relation to whether or not I should extend time for the Application to be made.
[64] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 32 considered this criterion and said:
“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.” 33
[65] This consideration is not relevant in the present circumstances.
[66] The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis:
“[38] 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.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” 34
[67] I have considered each of the matters specified in s.394(3) of the Act. I have found paragraph (b) weighs against a finding of exceptional circumstances and paragraphs (d), (e) and (f) are neutral. However, paragraphs (a) and (c) weigh in favour of the grant of an extension and while (c) weighs in favour to only the slightest degree, I regard Mr Obradovic’s explanation for the entirety of the delay as a credible one, weighing more heavily in favour of a finding of exceptional circumstances. I am particularly persuaded that Mr Obradovic’s circumstances were out of the ordinary course, unusual, and uncommon because he was influenced by and relied upon a separation certificate completed by his former employer that recorded an incorrect detail when outlining the date upon which his employment ceased. I consider this to be an issue of fundamental significance because it influenced the late filing of the Application.
[68] Having weighed each of the considerations in s.394(3) of the Act and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.
[69] As I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act, I am also satisfied that it is appropriate to exercise my discretion to extend the time for Mr Obradovic to make the Application to 1 August 2019. An Order to that effect will be issued with this Decision.
[70] Accordingly, the matter will now be referred for further directions so that the question of whether Mr Obradovic’s dismissal was a case of genuine redundancy and the merits of the Application can be heard and determined.
DEPUTY PRESIDENT
Appearances:
S. Obradovic on his own behalf
M Ray for the Respondent
Hearing details:
2019
20 September
Melbourne via Telephone
Printed by authority of the Commonwealth Government Printer
<PR712827>
1 Exhibit R1.
2 Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].
3 Exhibit A1.
4 Exhibit A2.
5 Exhibit A3.
6 Exhibit R3.
7 Exhibit R1 at 1.3, 1.4 and 2.2.
8 Exhibit R2 at 1e.
10 Ibid at [17].
11 (1994) 122 ALR 333.
12 Ibid at 352.
13 Ibid at 353.
14 Ibid at 354-355.
15 (2011) 203 IR 1.
16 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
18 Ibid at [31].
20 [2015] FWC 1881 at [8].
21 Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [10].
22 [2014] FWC 4002 at [16].
23 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
24 Ibid.
25 Ibid.
27 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].
28 Ibid.
29 Exhibit R2 at 1h.
30 Ibid at 4g.
31 Ibid at 4a.
33 Ibid at [41].