Alexander King v Leighton Contractors Pty Limited

[2013] FWC 9653

[2013] FWC 9653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexander King
v
Leighton Contractors Pty Limited
(U2013/12965)

DEPUTY PRESIDENT MCCARTHY PERTH, 9 DECEMBER 2013

Application for relief from unfair dismissal - jurisdictional objection - lodgement outside 21 day period.

[1] Mr Alexander King (the Applicant) lodged an application for unfair dismissal remedy (the application) on 27 August 2013 claiming that he was dismissed unfairly from his employment by Leighton Contractors Pty Limited (the Respondent).

[2] The date the dismissal of the Applicant took effect was 17 June 2013. The application was therefore lodged some seven weeks outside the time allowed by section 394 (2) of the Fair Work Act 2009 (the FW Act).

[3] The Respondent lodged an objection to the application on 17 September 2013 on the grounds that the application was not lodged within 21 days as required by the FW Act and that the Applicant failed to provide sufficient reasons to satisfy an extension being granted as provided for by s.394 (3) of the FW Act.

[4] On 10 October 2013, I wrote to the Applicant requesting information in respect of those issues I must take into account in determining whether exceptional circumstances exist for an extension of time to be allowed.

[5] The Applicant responded to my request on 23 October 2013. In that response the Applicant claimed that the reason for the delay was that the Respondent had led him to believe that if he did not bring a claim (meaning an unfair dismissal claim) then he would be provided with alternative employment with the Respondent. Further details were given of the conversation with representatives of the Respondent that led him to hold that belief, which I will deal with below.

[6] I wrote to the Respondent on 23 October 2013 and requested that they provide a response to the Applicant’s submissions. Their response was provided on 31 October 2013. The response addressed each of the issues and gave a different account of the conversation held on 17 June 2013. Specifically it refuted the contention by the Applicant that he would be transferred to another project.

[7] I decided to hold a hearing due to the conflicting accounts of the conversation held on 17 June 2013.

[8] A hearing was held on 4 December 2013. Evidence was given by the Applicant and by Mr Douglas Bevan (the Employee Relations Manager for Western Australia at the time of the Applicant’s dismissal) and Mr Jamin Whiteside (the lead Employee Relations Adviser for the Gorgon LNG Project at Barrow Island where the Applicant had been employed).

The reason for the delay

[9] The Applicant asserts that at a meeting held on 17 June 2013 with Mr Bevan and Mr Whiteside he was told that if he resigned then he would be employed at another site where the Respondent was involved. He says that he formed a view from what he was told that provided he was not terminated then he was more likely to be employed on another site. He says he believed that by resigning and by not bringing a claim then he would be re-engaged. He also says that he was told by Mr Whiteside after the termination that he should “hang in there and we will find you something”.

[10] The Applicant says that because of the belief he formed from this discussion he did not lodge an application within the 21 days allowed. He later changed that belief as it became clear to him in the following weeks that he was unlikely to be re-employed and therefore he lodged the application when he came to that realisation. The Applicant asserts that he was deceived into believing he would be re-employed inferring that the Respondent’s intention was to mislead him and induce him not to lodge an unfair dismissal claim.

[11] Mr Bevan gave evidence and stated that during the meeting on 17 June 2013 he told the Applicant that there was no other position for him with the Respondent at that time. He advised the Applicant that if the Respondent were to terminate his contract of employment then future employment opportunities with the Respondent and other resource sector employers would be extremely limited. However if he resigned then he would be eligible to apply for work with the Respondent at a future date and his application would be treated on its merits. Mr Bevan says he emphasised to Mr King that he would be required to reapply.

[12] Mr Bevan states that he then said to him “the ball is entirely in your court” and re-emphasised the options open to him. The Applicant responded to the effect that “in the scheme of things, I’ll tender my resignation”.

[13] Mr Bevan says that following the Applicant stating that he would resign there was a discussion about employment opportunities. Mr Bevan gave him the names of other employers that he was aware were recruiting employees with his skill. He told him that he should stay in contact with the Respondent and that if he needed clarification of the circumstances of his resignation he should contact Mr Bevan or Mr Whiteside.

[14] Mr Whiteside gave an account of the meeting which was consistent with the account that Mr Bevan had given. He stated that when the Applicant was writing his resignation he asked “how is this going to affect my chances of future jobs for Leightons”. Mr Whiteside said that Mr Bevan told the Applicant that future employment with the Respondent on the Gorgon Project would not be made available to him but that in the event that the Applicant wished to apply for employment with the Respondent on future projects he was free to do so and that such applications would be considered in accordance with usual recruitment procedures.

[15] Mr Whiteside says that at no time during the meeting did he, or Mr Bevan, inform the Applicant that efforts would be made by either of them or the Respondent generally to transfer his employment to another like worksite.

[16] After considering the accounts of the discussions I prefer the account of the conversation provided by Mr Bevan and Mr Whiteside. Their evidence was clear and there was no inconsistency in their account of that conversation. The approach that they took to the Applicant during the discussion is rational and one that would be usual in discussions of that nature, in employment of this type, and in the industry involved. The account of the Applicant of the meeting appears to me to be a misinterpretation by him of what actually was said.

[17] It still remains for me to determine whether the misunderstanding of the conversation by the Applicant is a reason for the delay that would weigh in favour of the Applicant. The reason here is his belief that he would be re-employed by the Respondent at another site and the lodging of the application would jeopardise that re-employment. I accept that he held the belief but it does not appear to me that there were reasonable grounds for him holding the belief. Therefore, whilst I give some weight to the reason for the delay in the Applicant’s favour due to the belief that he held, the weight is not substantial.

When the Applicant first became aware the dismissal had taken effect

[18] The Applicant was fully aware the termination took effect on 17 June 2013.

Any action taken by the Applicant to dispute the dismissal

[19] Mr Whiteside gave evidence that the Applicant communicated to him from as early as 26 July 2013, making references to legal proceedings and consulting legal representatives. On 14 August 2013 Mr Whiteside says that Mr King advised him that he had paperwork ready for his application for an unfair dismissal, some two weeks before the application was lodged.

[20] The Applicant’s response to my request for information stated that the Applicant did not take any action against his former employer to dispute the dismissal until he realised that the offer of alternative employment was not genuine. It is unclear from that response when the Applicant took any action and when he came to the realisation that the offer of alternative employment was not genuine.

[21] It appears to me that the Applicant did not take any action to dispute his dismissal until well after the 21 day time limit had expired and probably not until shortly before the application was lodged. This element of the criteria, as to whether exceptional circumstances exist, therefore does not favour the Applicant.

Prejudice to the Respondent

[22] The Respondent asserts that they will be prejudiced if the application is allowed as by the time the matter is heard it will likely be the first quarter of 2014, some nine months after the termination has occurred. They argue that there is a high turnover of labour in this type of project-based work due to constant rotation of skills that are required on site. Therefore they say it is quite possible witnesses, who may be required, may no longer be employed by the Respondent and it could be difficult securing their evidence. Indeed one of the witnesses in the current proceedings is no longer with the Respondent.

[23] Whilst there could be prejudice to the Respondent I do not consider that this element of my considerations weighs against the application being allowed.

The merits of the application

[24] There is substantial evidence, even some of the Applicant’s own evidence, that would weigh against the Applicant as to the merits of the application. Firstly, there are strong grounds in support of the Respondent’s contention that the Applicant was not dismissed but rather resigned. Whilst the Applicant suggests he had no alternative but to resign, the evidence appears to favour a finding contrary to that contention.

[25] Secondly, the behaviour of the Applicant following his termination is such that even if there was no valid reason for termination at the time of his dismissal, a finding of unfair dismissal would not be probable because of the post dismissal conduct of the Applicant which included abuse and threats to Mr Whiteside. This eventuated into the issuance of an apprehended violence order against the Applicant.

[26] The merits of the application therefore, in my view, do not favour allowing the application by extending the time allowed for its lodgement.

Fairness between the Applicant and other persons in a similar position

[27] In my view the circumstances here do not favour the Applicant.

Conclusion

[28] I find that exceptional circumstances do not exist and as a consequence I will not allow the application. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Applicant self-represented.

Mr A. Longland of Herbert Smith Freehills for the Respondent.

Hearing details:

2013.

Perth:

December, 4.

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