Anthony Symons v Skilled Rail Services Pty Ltd

[2014] FWC 5156

[2014] FWC 5156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Symons
v
Skilled Rail Services Pty Ltd
(U2014/6682)

COMMISSIONER WILLIAMS PERTH, 1 AUGUST 2014

Termination of employment - extension of time.

[1] Mr Anthony Symons (Mr Symons), the applicant in this matter has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Skilled Rail Services Pty Ltd (the respondent).

[2] Mr Symons’ application says he was he was notified he was dismissed on 15 March 2014 and his dismissal took effect that day. The application was made on 20 April 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to allow a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 394 below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[5] Having received the written materials from the applicant and the respondent’s response to the substantive application it became apparent that there were facts in dispute that were relevant to the question of whether the Commission should extend time for Mr Symons to make this application. Consequently a hearing was convened.

[6] At the hearing the applicant was represented by Mr Connell and the respondent by Mr Malpass. The applicant did not give evidence. The respondent called evidence from Ms Bagby who is from the respondent’s operations in Port Hedland where the applicant had been employed.

Submissions

[7] The applicant was employed as a Locomotive Driver at BHP’s iron ore operations in Port Hedland. His employment commenced in October 2011.

[8] The applicant provided written submissions 1 and oral submissions were made on his behalf at the hearing.

[9] Relevantly for the purposes of this decision those submissions are that the applicant was not aware that an application for unfair dismissal must be made within 21 days after the dismissal. The reason for this was that the respondent, he asserts, did not provide him at any time with the Fair Work Information Statement as they are required to under the Act. The applicant submits that had the respondent not failed to provide this to him he would have been aware of his rights and made the application within the 21 day timeframe.

[10] The applicant in his written submissions says that he has received no official communication informing him that he has been terminated. He says that because of this he waited to hear from his employer to ascertain the status of his employment. He says this added to his confusion as to whether or not he was still employed. His concerns were further raised because the respondent did not contact him to commence his “swing” to return to site and he says they had not discussed any issues with him relating to termination or redundancy. This added to the delay in making the application.

[11] It is submitted the applicant never received a letter of termination nor did he receive a statement of service.

[12] The applicant submits that he worked on a roster cycle of two weeks work on site followed by one week off site not working.

[13] The applicant says he has never been made fully aware of the nature of the alleged breach by the respondent and nobody from the respondent has been in contact with him to discuss the matter and so the company has failed to follow its agreement.

[14] For the applicant it was submitted that he was contacted on the phone and told that he was to be stood down and that things were “not looking good for him”. It is submitted on his behalf that he was aware that if the respondent’s found he had committed a third offence he would be terminated.

[15] For the applicant it was submitted that the respondent’s Record of Interview document 2 was filled out prior to Ms Bagby coming to his accommodation and discussing the matter with him.

[16] The respondent for its part submits that the applicant did receive the Fair Work Information Statement on commencement with the respondent. A copy of an email to all relevant managers requiring this to occur as of 1 January 2010 was provided to the Commission 3. Separately a statutory declaration sworn by an employee of the applicant, who was first employed on 25 June 2012, explains that part of her duties was to put together induction packs for employee candidates which included amongst other things the Fair Work Information Statement4.

[17] The respondent submits that at a meeting on 15 March 2014 it was made clear to the applicant that his employment was terminated. Evidence was given by Ms Bagby regarding these events. Her evidence was to the effect that following an incident on Thursday, 13 March 2014 the applicant was asked to give a statement. She used the applicant’s statement he had previously given amongst other information to fill out the Record of Interview which she had with her when she attended the applicant’s accommodation on Saturday, 15 March 2014.

[18] When she arrived at his accommodation the applicant had started packing his belongings. Her evidence was that she read through the Record of Interview but Mr Symons afterwards refused to sign it.

[19] Her evidence was that the applicant then asked her for a separation certificate.

[20] Ms Bagby’s evidence was that arrangements were made for the applicant to be flown off site that day.

[21] I note the Record of Interview dated 15 March 2014 provided by the respondent has been signed by the respondent’s representatives and includes a notation “Anthony refused to sign”. The document includes three paragraphs under a heading “The following responses were given in relation to these matters:” and these paragraphs provide what appears to be an explanation from Mr Symons as to why he was 30 minutes late for his rostered start on 13 March 2014. The detail of these responses is consistent with the applicant’s complaints about this incident attached to his substantive application.

[22] I note the Record of Interview document includes a section headed “the company has decided to proceed with termination of employment:” and there under is an explanation that the failure to attend at the rostered time by the applicant is viewed as a third breach of policies and procedures and there are notations to this effect referring to a first and final written warning regarding a failure to report an instant on 17 January 2014 and prior to that a written warning for failure to complete D & A on 30 August 2012.

Are there exceptional circumstances?

The reason for the delay

[23] It is well established that being unaware of the requirements in the legislation to make an unfair dismissal application within 21 days of dismissal is not an acceptable reason for delay in making an application.

[24] In this instance however the applicant asserts that he would have been aware that this was a requirement and would have otherwise complied with this requirement but did not do so because of the failure of the respondent to provide him with a copy of the Fair Work Information Statement at the time of his employment which includes information about the timeframes for making unfair dismissal applications.

[25] The respondent has provided evidence to the Commission that since the beginning of January 2010 the respondent has been aware of the legislative requirement to provide the Fair Work Information Statement to new employees and that this has been their practice. Further evidence by way of a statutory declaration satisfies me that from the middle of June 2012 until December 2013 the Fair Work Information Statement was provided as part of an induction pack to new employees.

[26] The respondent properly recognises that their evidence in this regard does not amount to positive evidence that they did provide the Fair Work Information Statement specifically to the applicant when he commenced employment with them.

[27] However the onus is on the applicant to satisfy the Commission that there are exceptional circumstances in their particular case that warrants an extension of time being allowed. The applicant has not given evidence to support his assertion that he was not provided with a copy of the Fair Work Information Statement by the respondent. The respondent has not had the opportunity to cross-examine the applicant on this point.

[28] The respondent has provided positive evidence which satisfies me that its practice, as required by the legislation, is to provide its employees with a copy of the Fair Work Information Statement and how this is done. Against this is the assertion by the applicant, not made under oath, that he did not receive the Fair Work Information Statement.

[29] In these circumstances I find that on the balance of probability the applicant did at the time he was employed by the respondent receive the Fair Work Information statement. Consequently I do not accept that the applicant’s ignorance of the requirement to make this application within 21 days of his dismissal is in some way excused, if it can be at all, by the respondent not meeting its obligations.

[30] As to the applicant’s other explanation for the delay in making this application I accept that he has not received a letter of termination or a separation certificate. However the evidence does not support his assertion that he was confused or unaware that he had been terminated.

[31] The evidence of Ms Bagby which was unchallenged is that prior to 15 March 2014 he was told he had been stood down and that he was asked to make a statement about what occurred on 13 March 2014 which he did. After this on Saturday, 15 March 2014 there was a discussion with him at his accommodation with Ms Bagby where he was provided with the respondent’s Record of Interview which was read to him but which he refused to sign. He was flown off site later that day.

[32] The Record of Interview document specifically says that the company had decided to proceed with his termination of employment.

[33] Significantly the evidence is that the applicant at the conclusion of the discussion with Ms Bagby asked that he be provided with a separation certificate.

[34] I accept the evidence of Ms Bagby in full. Consequently I am satisfied that the applicant was aware on 15 March 2014 that his employment had been terminated on that date.

[35] In this case then there are no acceptable reasons for the delay in making this application.

Any action taken by the person to dispute the dismissal

[36] The applicant has not otherwise sought to dispute his dismissal.

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

[37] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[38] With respect to the substantive application it is clear is that on 13 March 2014 the applicant was 30 minutes late to start work which caused delays to several trains on BHP’s iron ore main line. The applicant’s explanation was that he was not aware that his roster had been changed to start half an hour earlier than he had been working. The respondent took the view that this was a failure by the applicant to check his roster for the next shift and that his explanations were not acceptable excuses for his failure to start work as rostered.

[39] It is also clear that in January 2014 the applicant received a written first and final warning because he did not immediately report that he had injured his foot at work. The applicant’s application says he has no excuse for his actions on this occasion.

[40] The applicant also received a written warning in August 2012 because he failed a fatigue test. The applicant however challenges the validity of this warning for a range of reasons.

[41] As is usual in extension of time applications it is not for the Commission to fully explore the merits of the substantive application. In this instance there is no dispute the applicant committed the offence for which he was dismissed by the respondent. Therefore the applicant’s case would be based on arguments to do with procedural fairness or whether the dismissal was proportionate to his failings.

[42] Consequently in my view the applicant’s substantive application has only limited merit.

Fairness as between the person and other persons in a similar position

[43] This is not a relevant factor in this matter.

Conclusion

[44] The onus is on the applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[45] I have considered the information provided and the submissions. In this case there is no acceptable reason for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[46] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[47] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr S Connell on behalf of the applicant.

Mr R Malpass for the respondent.

Hearing details:

2014.

Perth:

July 23.

 1   Applicant’s email date 18 May 2014.

 2   Attachment to the form F3−Employer’s Response to Unfair Dismissal Application.

 3   Exhibit A1.

 4   Exhibit A2.

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