Manager argues new worker performed most of his duties at work
A sales manager recently filed an application to extend his unfair dismissal claim before the Fair Work Commission (FWC) after he discovered that his former employer hired a worker who performed most of his duties.
The employer terminated him on the grounds of “genuine redundancy,” which is why the manager disputed the company’s decision to hire someone who would have the same functions as him.
The said manager, Spiro Doulos, filed an unfair dismissal application against Artilux (Australia) Pty Ltd. The company specialises in supplying retractable screens.
Doulos started his employment with Artilux on 5 February 2018, where he held the position of sales manager before being made redundant as of 5 June 2023.
The manager's application was filed on 4 September 2023, which was 70 days beyond the 21-day period under the FW Act. Thus, he subsequently filed an application to extend his claim.
Doulos said the delay was caused by newly discovered evidence surrounding his dismissal. He said that around 24 August, he called the employer’s office, and he had a telephone conversation with a worker named "Terry." The latter was the sole representative remaining at Artilux following Doulos’ redundancy.
During this conversation, Terry told Doulos that Artilux was planning to hire a new sales representative the following week.
A shocking revelation about the new hire
According to the manager, this revelation left him in a state of shock, given that no request for his return had been made by the employer.
Seeking legal counsel on 25 August 2023, Doulos decided to file his application once it was established that there wasn't yet conclusive evidence of the hiring of a new employee.
On 1 September, Doulos contacted Terry for further clarification, and the latter informed him that a new sales representative had been hired by Artilux to manage the accounts formerly overseen by Doulos.
Doulos proceeded to engage a lawyer, and after reviewing a draft application on 3 September, the application was officially filed the following day.
In its defence, Artilux argued against Doulos' position, saying that his role as "sales manager" has not been replaced; instead, the new role is that of a "sales representative."
On the other hand, Doulos said that "the overwhelming majority of his duties were that of a Sales Representative even when he had the title of Sales Manager."
He said, "he had very few managerial responsibilities and little, to no, authority."
HRD previously reported about a manager's application to extend an unfair dismissal claim after he was dismissed over allegations of misconduct. He said that he experienced the company’s ‘delaying tactics.’
He argued that the employer told him there would still be negotiations even after his termination, so he waited for further talks, which caused the delay.
Should the manager’s claim be extended?
In its decision, the FWC found that “Doulos's discovery of the engagement of a new employee in late August to fulfill at least some of the duties of his redundant role qualifies as an exceptional circumstance.”
“It is somewhat interesting that Doulos was not offered the opportunity to return to working for Artilux as a sales representative when a vacancy arose,” the decision said.
The Commission said that the manager’s confusion as to why the company hired somebody else to perform the role that he was fired from is an exceptional circumstance.
It explained that this raised doubt if there was genuine redundancy in the business as what was previously claimed by the employer, which was the basis for his termination.
Consequently, the FWC accepted the worker’s application for an extension and ordered for the matter to be heard for unfair dismissal.
