Albert Dunn v Civmec Construction and Engineering Pty Ltd

[2014] FWC 9063

[2014] FWC 9063 [Note: An appeal pursuant to s.604 (C2015/1022) was lodged against this decision - refer to Full Bench decision dated 23 February 2015 [[2015] FWCFB 875] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Albert Dunn
v
Civmec Construction and Engineering Pty Ltd
(C2014/6094)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 15 DECEMBER 2014

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Albert Dunn (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 27 August 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that his dismissal on 28 July 2014 by Civmec Construction and Engineering Pty Ltd (Civmec - the Respondent) was in contravention of the general protections provisions of the Act. The application was filed nine days outside the 21 day statutory timeframe set out in s.366(1)(a) of the Act.

[2] The Commission convened a hearing on 7 October 2014 to consider whether or not exceptional circumstances existed warranting the granting of a further period of time for Mr Dunn to make his application.

[3] At the hearing, Mr Dunn was self-represented, while Civmec was represented by Ms Stephanie Baptist, Group Manager - Human Resources and Industrial Relations for the Respondent.

[4] For the reasons set out below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.366 of the Act. Accordingly, the application cannot proceed and is therefore dismissed.

Background

[5] Mr Dunn commenced employment with Civmec on 19 June 2014 as a fly-in, fly-out worker at an unnamed remote location. Mr Dunn was dismissed on 28 July 2014, i.e. five and a half weeks later. Mr Dunn was advised of his dismissal over the telephone by the Deputy Project Manager after he had earlier contacted the Respondent seeking to clarify why he was unable to check-in to board a flight back to the work site. He was subsequently invited to a meeting at Civmec’s Perth office to be issued with a termination letter and to speak with Civmec’s human resources team.

[6] Mr Dunn contends that he was dismissed because he raised a number of safety concerns. However, the termination letter dated 30 July 2014 stated that he was dismissed for unsatisfactory performance.

[7] On the other hand, Civmec disputes that Mr Dunn was dismissed because he raised safety concerns, submitting instead that he was dismissed as a result of unsatisfactory performance. At the hearing, Civmec also cited personality clashes and poor attitude as factors in Mr Dunn’s dismissal.

The Applicant’s outline of events

[8] Mr Dunn submitted that he arrived at the airport on 28 July 2014 to board a flight to return to the work site but was unable to check-in as there was no booking in his name. Mr Dunn further submitted that he then sought to contact Civmec by telephone to clarify the situation. He was eventually contacted by the Respondent and informed that he had been dismissed for poor performance. Mr Dunn submitted that he was shocked, particularly as he had acted as a leading hand for a week in his previous roster cycle.

[9] Mr Dunn subsequently sent Civmec a number of emails. The first of those emails was sent on 30 July 2014 and stated that he considered the reason for his dismissal was that he had raised safety concerns.

[10] Mr Dunn also submitted that he contacted the Commission in the week following his dismissal and was informed that he was ineligible to make an unfair dismissal application. However, Mr Dunn contends that he was not informed of the possibility of making a general protections application but was instead referred to a body called ELS 1. Mr Dunn stated at the hearing that he contacted ELS in the days leading up to his application being filed and that throughout the period after his dismissal and prior to his application being made he continued to search the internet in an effort to pursue justice.

[11] Mr Dunn subsequently visited the Commission’s Perth office in person on 28 August 2014 where he made his general protections application after further discussing the circumstances of his dismissal with Commission staff.

[12] Mr Dunn acknowledged at the hearing that he was aware of the 21 day time limit for making his application, adding that had he known of the possibility of making a general protections application beforehand he would have done so within the statutory time frame.

The Respondent’s outline of events

[13] In its Form F8A - Employer Response to General Protections Application, Civmec stated that the reason for Mr Dunn’s dismissal was unsatisfactory performance. As previously noted, at the hearing Civmec also cited personality clashes and poor attitude as factors in Mr Dunn’s dismissal.

[14] Civmec further stated that due to the nature of Mr Dunn’s employment and the logistics of Mr Dunn getting to the remote work site the dismissal was communicated verbally rather than face-to-face. The Respondent’s rationale was that it was not good business sense or practical to have Mr Dunn return to the work site for a short period of time. Civmec also acknowledged that the dismissal was not executed in accordance with due process.

[15] Civmec disputed that it had breached the general protections provisions of the Act in dismissing Mr Dunn.

The Relevant Legislation

[16] Section 366 of the Act provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Whether to allow a further period for the application to be made

[17] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[18] Mr Dunn submitted that he had contacted the Commission in the week after his dismissal and was informed that he was ineligible lodge an unfair dismissal application. Mr Dunn further submits, however, that he was not informed that he could make a general protections application but instead was referred to ELS.

[19] As previously noted, Mr Dunn continued to search the internet seeking an avenue for redress and in late August visited the Commission in person, at which time he received assistance in completing his general protections application.

[20] At the hearing, Mr Dunn submitted, among other things, that the reasons for the delay in making his application were, firstly, that he was trying to retrieve his belongings and tools from the worksite and, secondly, that he was not aware of the opportunities for redress.

[21] Based on the above analysis, the reasons for the delay do not appear to involve exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[22] At the hearing, Mr Dunn submitted that he emailed Civmec on 30 July 2014, i.e. two days after his dismissal, stating that he considered the reason for his dismissal was that he had raised safety concerns. As noted above, Mr Dunn subsequently sent a number of further emails to Civmec. However, it was not clear from Mr Dunn’s submissions as to whether those subsequent emails reiterated what he considered to be the reason for his dismissal.

[23] The emails sent by Mr Dunn appear to be the only action taken by Mr Dunn to dispute his dismissal other than making his general protections application.

(c) Prejudice to the employer (including prejudice caused by the delay)

[24] No views were expressed on this point.

(d) The merits of the application

[25] Mr Dunn alleges that his dismissal stemmed from him raising a number of safety concerns and that a number of his colleagues did not like him. However, he provided no material to substantiate that assertion either in his application or at the hearing.

[26] Based on the limited material before me, the merits of Mr Dunn’s application do not appear strong.

(f) Fairness as between the person and other persons in a like position

[27] No views were expressed on this point.

Consideration of the issues

[28] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 2(Nulty) in the following way:

“[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.

[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...” [Underlining added]

[29] While in this case Mr Dunn stated that he was aware of the 21 day statutory timeframe, he also acknowledged that one of the reasons for the delay in filing his application was that he was not aware of the opportunities for redress. Beyond this, there appears to have been some tardiness in Mr Dunn contacting ELS. Based on Mr Dunn’s submissions, the Commission suggested he speak to ELS when he first contacted the Commission in the week after his dismissal yet he did not contact ELS until the days before his general protections application was lodged. In other words, it appears that Mr Dunn did not contact ELS until at or around the 21 day statutory time frame or after the time frame had elapsed.

[30] Drawing on the comment in Nulty that mere ignorance of the statutory time limit is not an exceptional circumstance, I consider that ignorance of the avenues available to Mr Dunn for redress is similarly not an exceptional circumstance. Further, I note that Mr Dunn did not provide any compelling reason as to why it took him so long to contact ELS or subsequently visit the Commission’s offices to discuss his dismissal.

[31] Together these factors do not suggest the existence of exceptional circumstances.

Conclusion

[32] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365.

[33] Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be separately issued.

Appearances:

A. Dunn on his own behalf.

S. Baptist for Civmec Construction & Engineering Pty Ltd.

Hearing details:

2014.

Canberra and Perth (video hearing):

October 7.

 1   While not specified, ELS is quite possibly the Employment Law Centre of WA (Inc)

 2 (2011) 203 IR 1

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