No extension of time granted to applicant who chose to progress claim in the FWC
The Commission has found that no extension of time is to be granted to an applicant who made a deliberate decision, informed by legal advice, to continue to progress her claim with the Fair Work Commission (FWC) before commencing a claim in this Commission.
The applicant was employed part-time as a Support Programs Coordinator from February 2013 to April 2020. In March 2020, the respondent ceased the activity and support programs managed by the applicant due to the impact of COVID-19. The respondent discussed with the applicant possible options considering the cessation of activity, including standing down from her employment, reducing hours or taking annual leave.
In April 2020, the respondent informed the applicant that consideration was being given to abolishing the position of Support Programs Coordinator. The applicant was invited to meet to discuss potential redundancy; any suggestions to avoid the redundancy; possible alternate positions to which she may be redeployed; the impact on her and any other matters. On 17 April 2020, the applicant was made redundant.
In May 2020, the applicant made an unfair dismissal claim to the FWC. The respondent opposed the claim and notified that it had a jurisdictional objection on the basis that it is not a national system employer. A conciliation conference was held on 25 June 2020 in the FWC, however no agreement was reached. On 29 June 2020, the applicant discontinued her claim in the FWC and commenced an application with the Commission.
The applicant asserted that she was not consulted, the redundancy was not genuine, and the implementation of the redundancy was rushed and chaotic. The applicant contended that she ought to have been offered JobKeeper payments as were other employees of the organisation. The applicant submitted that the reasons for the delay in her application were outside of her control, and the respondent, by agreeing to enter into conciliation in the FWC, was seeking to delay any potential claim in the Commission.
The respondent opposed the application and contended that the position was abolished for business and operational reasons and the process of implementing the consequential redundancy was not harsh nor unfair. The respondent asserted that it was not appropriate to continue to engage the applicant under the JobKeeper assistance scheme, because it did not intend her position would continue. The respondent submitted that the claim was made outside of the 28-day limit and that it should not be accepted out of time.
In determining whether to grant an extension of time, the Commission considered the reasons for the delay, any action taken by the applicant to contest the termination other than by applying under the IR Act, the prejudice to the respondent, including prejudice caused by the delay.
The Commission found that the applicant made a deliberate decision, informed by legal advice, to continue to progress her claim with the FWC and not make an application to this Commission, resulting in the delay. The Commission noted that the applicant had taken action to contest the dismissal other than by this claim and noted that there was little prejudice to them arising from the delay.
The Commission found, however, that the decision to abolish the position did occur due to a genuine redundancy, in that the respondent determined the role was no longer required, and that it was not financially viable to maintain the role. The Commission noted that at the time the applicant’s position was made redundant, the unprecedented nature of the COVID-19 health crisis, and the changing environment and developing events may have been confusing. The Commission considered, however, that the respondent fulfilled its obligations to inform the applicant as soon as practicable after a decision was made; to provide the applicant with an opportunity to inform them of the impact of the decision; and to consider any alternate arrangements that may mitigate the negative impacts.
The Commission determined that the applicant did not demonstrate the merits of her claim and the referral out of time was not accepted.
The decision can be read here.