Benjamin Shea v Independence Group Nl T/A Jabiru Metals Ltd

[2013] FWC 9025

[2013] FWC 9025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Shea
v
Independence Group NL T/A Jabiru Metals Ltd
(U2013/11839)

DEPUTY PRESIDENT MCCARTHY PERTH, 18 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] This matter concerns an application lodged by Mr Benjamin Shea (the Applicant) for the Fair Work Commission (FWC) to deal with an Application for Unfair Dismissal Remedy (the Application) pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The Application was lodged on 23 July 2013. The Applicant asserts that he was unfairly dismissed from his employment by the Independence Group NL T/A Jabiru Metals Ltd (the Respondent). The Application states that the dismissal took effect on 2 May 2013. The Application was therefore lodged beyond the time allowed by s.394(2)(a) of the FW Act. The Application was lodged by a solicitor from Taylor Preston Lawyers on the Applicant’s behalf.

[2] Attached to the Application were the reasons for the late lodgement. The reasons included that:

● The Applicant had contacted Taylor and Preston Lawyers (the Applicant’s representative) on or before 8 May 2013 and emailed a lawyer at that firm between 8 May and 10 May 2013. The Applicant expressed concern to Taylor and Preston Lawyers about the 21 days time limit and made a number of telephone calls to the lawyer handling the matter. That lawyer handling the matter at that stage has since left Taylor and Preston Lawyers.

● Taylor and Preston Lawyers moved office during that time which is said to have created a lot of confusion.

● Apparently at some time after the relocation of the office of Taylor and Preston Lawyers the Applicant’s file was reviewed and it was discovered that the application had not been lodged. A solicitor from Taylor and Preston Lawyers contacted the Applicant who indicated he had believed that it had been lodged. It seems the review of the file was conducted on 4 July 2013.

● Taylor Preston acknowledges that the delay in launching is not due to the Applicant and it would be unfair for him to lose his right of claim due to the failure of his representatives.

● A letter attached to the Application and dated 19 July 2013 asserts that the Application was faxed to Fair Work Australia [sic] on 5 July 2013.

[3] The Respondent lodged an Employer’s Response to the application on 9 August 2013. They say that exceptional circumstances did not exist and it would be inappropriate to allow an extension of time.

[4] The Respondent contends that the Applicant was fully aware at all times of the 21 day time limit and should have been able to make an application on his own accord at any time without reliance on solicitors.

[5] They also say this is evidenced by the Applicant allegedly failing to make contact with the solicitors by telephone although it is unclear over what period that failure is asserted to have occurred.

[6] The Respondent also contends that the procedures for lodging unfair dismissal applications have been designed so that participants do not need to obtain legal representation and as the Applicant was fully aware of the 21 day time limit he should have made the application on his own accord.

[7] The Respondent also points out that the Applicant’s solicitors state that the Application was filed on 5 July 2013, however no evidence of a fax receipt was provided and the Application was not followed up by the solicitors until 19 July 2013 (and eventually lodged on 23 July 2013).

[8] The reasons for the late lodgement attached to the Application did not address all of the matters that I must have regard to in considering whether the application should be allowed pursuant to s.394(2)(a) of the FW Act. As a consequence I wrote to the Applicant and his representative on 15 October 2013 requesting the provision of information in respect of those issues. I requested a response by 22 October 2013. The Applicant’s representative contacted my office on 17 October 2013 and requested an extension of time because they had difficulty contacting the Applicant. I agreed to provide an extension of time till Tuesday, 29 October 2013. Those submissions were received by my office on 29 October 2013.

[9] In those submissions the Applicant states that:

“A. Reason for the delay

....

14. The Applicant’s representatives faxed his applicant [sic] to the FWC on 5 July 2013; however, the FWC claims to have never received it. The materials were subsequently sent again, by post, to the FWC on 19 July 2013. The FWC also claimed not to have received these documents. The application was subsequently filed but there is no evidence as to which received documents were eventually filed.

...

16. The Applicant in this case clearly gave his instructions and was blameless in relation to the representative’s delay and the technical issues experienced by the FWC. These matters were all beyond his control. There was a bona fide attempt by The Applicant’s legal representatives to file his application as soon as they became aware it had to be filed.

B. Whether the person first became aware of the dismissal after it had taken effect

17. The Applicant was first made aware of his termination after 3 May 2013, as he was in Bali. This should favour the granting of an extension of time.

C. Any action taken by the person to dispute the dismissal

18. The Respondent states that the Applicant was unhappy about his proposed dismissal. The Applicant had at all relevant times discussed his medical situation with The Respondent and was assured on several occasions that his employment was safe. The Applicant actively attempted to have his medical treatment dealt with as expeditiously as possible in order to return to work.

D. Prejudice to the employer

19. Prejudice to the employer will go against granting an extension of time …

20. The Respondent has initiated the jurisdictional objection at their own volition and cannot claim prejudice in defending such proceedings …

E. Merits of the application

…

24. The Applicant has evidence by way of medical certificates for absences from his employment due to injuries sustained during the course of his employment. The Respondent was fully aware of this. The Applicant was reassured his employment was safe.

25. There exists enough evidence to suggest at the very least that the claim is not without merit. Such a consideration should favour The Applicant.

F. Fairness between the person and other persons in a similar position

26. This should be a consideration should the Commission have similar matters before it or have decided on similar matters in the past [reference omitted].”

[10] The Respondent replied to the Applicant’s submissions and stated the following:

“9. The Applicant’s representative has failed to tender facsimile records to show that the documents were faxed to FWC on 5 July. No attempts appear to have been made at this time by any employee of the Applicant’s representative to contact FWC to ensure that the out of time Application was received. Certainly no evidence or witness statements have been provided to support any follow up by the Applicant’s representative.

10. No explanation has been provided as to why the Applicant (through his representative) was late in his initial attempt to file the application. A cursory mention has been made in Ms LaGreca’s witness statement to the opening of “new premises” however no dates have been provided for the office move, and in any event, the Applicant has provided no valid reason why an office move would cause a delay of this duration. No explanation has been provided as to what occurred from when completed forms were received by Mr Shea in order to proceed with the claim on 10 May 2013 and when the Applicant’s representative located the files on 4 July 2013.

11. On 19 July, a further two weeks after the initial failed attempt was made, the Applicant's representative telephoned FWA to enquire about the status of the late application. FWC advised the Applicant's representative that the application had never been received.

12. The Applicant’s representative Ms LaGreca then attempted to file the application by hand, but as no tram was available to go to the FWC premises, she posted the Application “on the weekend”. There appears to be an inexplicable lack of urgency on the part of the Applicant’s representative in filing the application despite the fact that at this stage, the application was more than 6 weeks late. The Application was eventually received by FWC on 22 or 23 July, approximately 60 days late.

13. As any experienced legal practitioner should be aware, it is usual practice with all FWC applications to receive written or email confirmation on receipt of an application. Neither the Applicant nor his representative received any confirmation from FWC at the time of the attempted filing of the application on 5 July 2013, or at any time thereafter. The onus was on the Applicant, at all times, to ensure that the application was received by FWC, and the Applicant failed in its obligation to do so.

14. The Applicant’s representative contends that exceptional circumstances exist to grant an extension of time as it alleges both representative error and error by the FWC. At the time the Applicant first attempted to file its application on 5 July, it was already out of time by 6 weeks. If, which the Respondent denies, the FWC made any technical error in receipt of the faxed application on 5 July, the Applicant was already out of time and such an error would not alter this fact and would not have contributed to the Applicant’s delay.

…

Reason for the delay

18. In the present case, the Applicant, Mr Shea, is not blameless in [sic] the delay. On 9 May 2013, Mr Shea emailed his representative requesting information on making an application for unfair dismissal. In this email he was fully aware of the FWC 21 day time limit and stated “im a little nerves [sic] at this moment with my flight tomorrow not knowing where i stand with this case and
the 21 day limit with fair work...”. On 10 May Mr Shea provided his representatives with the completed forms and then travelled to Bali.

19. The Applicant’s representative has provided no further evidence of communications from Mr Shea since 10 May. Despite the fact that Mr Shea was fully aware of the 21 day time limit for filing his application, and despite the fact that Mr Shea had received no communication from his representatives that the application had been filed in time, Mr Shea made no attempt to contact his representative to ascertain the status of his claim. Even after he was contacted by his representative on 4 July and informed that his claim had not been filed and was out of time, Mr Shea did not make any further attempt to contact his representative to ascertain the status of the then out of time application. In these circumstances, the Respondent contends that representative error is not sufficient grounds for granting an extension of time.

....

23. With regard to the reasons for the delay submitted by the Applicant, the Respondent asserts that the Applicant has not demonstrated a credible reason for the delay, has not provided an explanation for the whole period of the delay, that Mr Shea was not blameless in the delay, that the delay was not relatively short, that no technical issues were experienced by FWC that contributed to the initial delay and that no bona fide attempt was made to file the application within time.

Whether the person first became aware of the dismissal after it had taken effect

24. The Applicant contends that Mr Shea first became aware of his termination after 3 May 2013 as he was in Bali. The Respondent submits that this is incorrect. Due to the fact that the Applicant was residing in Bali, it was not possible for the Respondent to meet with Mr Shea in person. On 2 May 2013 Mr Burns, the Mine Manager, telephoned the Applicant in Bali to inform him of the decision to terminate his employment. A letter confirming his termination (incorrectly dated 30 April) was then emailed to him later that day, after the telephone conversation (Annexure A).

...

The merits of the application

26. In setting out the factors the Applicant considers relevant to a consideration of merits, the Applicant’s representative has incorrectly stated that Mr Shea was absent from work “due to injuries sustained in the course of this employment.” The Respondent contends that this statement is incorrect and misleading. Mr Shea injured his shoulder in his personal time away from the mine site on Rest and Recreation. While still absent from work attempting to recover from this injury, Mr Shea sustained a second injury to his forearm whilst assisting an acquaintance with their trailer.

27. The Respondent submits that the Applicant's claim has very little merit. The Applicant's employment was terminated for frustration because he had been absent from work for 23 weeks due to non-work related injuries and at the time of his termination had confirmed with the Respondent that he would not be able to return for a further 6 weeks. Prior to his injury, the Applicant had been employed by the Respondent for less than 7 months, and due to his non-work related injuries, had then missed almost 6 months of work on sick leave, annual leave, and leave without pay. At the time of his termination, the Respondent determined that it was no longer viable to hold his position vacant due to site manning pressures.”

Consideration

Reason for the delay

[11] It seems clear enough that the reason for the delay is primarily one of representative error. The representative appears to have not lodged when they were initially instructed. Then when that failure was discovered the representative states that they thought the Application had been lodged by fax. There was no documentary evidence of the lodgement by fax by way of fax receipts or any other documents of that type on 5 July 2013. Whilst I accept the statement of the Applicant’s representative that they thought the matter had been lodged by fax I do not accept that there was sufficient diligence on the representatives’ part to ensure the Application had in fact been properly lodged.

[12] I do accept and find that the primary reason for the delay is representative error.

Whether the applicant first became aware of the dismissal after it had taken effect

[13] The Applicant asserts that he was first made aware of his termination on 3 May 2013 as he was in Bali. The Respondent asserts that he was aware on 2 May 2013 and the Mine Manager telephoned the Applicant in Bali on that day. However whether it was the 2 May 2013 or 3 May 2013 is not of any real consequence. This fact and consideration did not weigh in favour of either party.

Any action taken by the applicant to dispute the dismissal

[14] It is clear that the Applicant took action from at least 5 May 2013 and through until 10 May 2013 through seeking advice from his representative and giving instructions to lodge an application. However there appears to have been little or no action by the Applicant from 10 May 2013 until he was contacted on 5 July 2013, a period of some 26 days. In my view it was incumbent on the Applicant, to follow up with his representatives as to the progress of the matter and any response that might have been received or lodged by the Respondents.

Prejudice to the employer

[15] I accept and find that the Employer will be prejudiced should the Application be allowed although there is insufficient information provided for me to be able to give any significant weight to this issue.

Merits of the application

[16] In the Employer’s Response the Respondent identified the reasons for the dismissal and the process that was undertaken in making a decision to dismiss the Applicant and the implementation of that decision.

“Reasons for Dismissal:

The Applicant’s employment as an underground truck driver was terminated on 3 May

2013 for frustration of his employment contract due to his inability to attend work as a result of non-work related injuries.

The Applicant injured his left shoulder while on Rest and Recreation on or about 21- 26 November 2012. The Applicant did not return to work for his scheduled roster on 27 November. He notified the Respondent of his injury and was placed on sick leave from 27 November.

On or about 15 January 2013, the Applicant sustained a second injury to his forearm whilst helping another person with their trailer. At the time of this second injury, the Applicant was still on sick leave from his employment with the Respondent due to his initial injury.

The Applicant’s employment was terminated for frustration because the Applicant had been absent from work for 23 weeks and had confirmed with the Respondent that he would not be able to return for a further 7 weeks.

Although the Respondent had held the Applicant’s position open for a substantial period of time, during the week prior to his termination, the Respondent determined that it was no longer able to hold the position vacant due to site manning pressures.

Termination Process:

On 30 April 2013 the Respondent’s HR Manager Ms Retallack spoke with the Applicant who was in Bali via mobile phone. Ms Retallack asked the Applicant how his recovery was progressing and whether the time he expected to have off work had changed. He confirmed that it had not changed. Ms Retallack informed the Applicant that she needed to confirm the length of his absence due to a review of the site manning requirements. Ms Retallack informed the Applicant that there was a possibility that the Company could not hold his position open any longer. The Applicant appeared displeased on hearing this information.

Following from the phone conversation with the Applicant Ms Retallack notified senior staff at Jaguar Operation of the confirmed dates the Applicant predicted he would be fit for work.

After due consideration of the Applicant’s predicted dates to return to work, the Respondent concluded that the Applicant’s contract had been frustrated and his employment would be terminated.

Due to the fact that the Applicant was residing in Bali, it was not possible to meet with him in person. On 2 May 2013 Mr Bums, the Mine Manager, telephoned the Applicant to inform him of the decision. A letter confirming histermination was emailed to him later that day.”

[17] The Applicant’s grounds as to why he asserted the dismissal was unfair did not substantially contradict the Respondent’s reasons for the dismissal although there is conflicting accounts of the process that was undertaken. The Applicant also asserts that he was assured on a number of occasions that his employment was secure. The Applicant in the submissions lodged on 29 October 2013 merely states that evidence of the absences are available and that the Respondent was fully aware of this (presumably the Applicant’s condition). Those submissions, as the Respondent points out state that the injuries were sustained during the course of his employment. Clearly from the grounds in the Application actually lodged the injuries were not sustained during the course of his employment although they were sustained whilst he was employed.

[18] I consider that there is little merit in the Application and this element was given substantial weight in my considerations.

Is it fair when compared to others

[19] I consider the circumstances here are a combination of representative error, or more accurately representative error compounded by further representative error. Whilst on occasion representative error weighs heavily in favour of allowing an application it is not the only factor I must take into consideration. Indeed as the Respondent rightly points out there are a large number of applications lodged by unrepresented applicants and those applications are invariably lodged within the allowable timeframe. Representative error as a single factor does not automatically mean an application will be allowed to be lodged outside the timeframe the FW Act provides for.

[20] In weighing the various elements of my considerations I find that exceptional circumstances do not exist for this matter. Therefore I will not allow the Application. The Application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 29 October 2013.

Respondent, 12 November 2013.

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