Blessmore Matemera v AngloGold Ashanti Australia Limited
[2024] FWC 669
•18 MARCH 2024
| [2024] FWC 669 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Blessmore Matemera
v
AngloGold Ashanti Australia Limited
(C2024/648)
| COMMISSIONER LIM | PERTH, 18 MARCH 2024 |
Application to deal with contraventions involving dismissal
Introduction
This decision concerns Mr Blessmore Matemera’s application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act).
AngloGold Ashanti Australia Limited (Respondent) employed Mr Matemera as a Procurement Officer on 16 October 2023. The Respondent dismissed Mr Matemera on 4 December 2023. Mr Matemera alleges that the Respondent dismissed him in contravention of Part 3-1 of the Act.
Mr Matemera’s application was made on 2 February 2024. Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, pursuant to s 366(1)(b), within such further period as the Commission allows under s 366(2).
In Mr Matemera’s case, the period of 21 days ended at midnight on 25 December 2023. As the twenty-first day fell on a national public holiday, the timeframe for lodgement is taken to be the next business day.[1] In this case, the next business day was 27 December 2023. Mr Matemera’s application is therefore 37 days out of time.
Mr Matemera seeks a further period for his application to be made under s 366(2). The Respondent opposes this request.
The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 366(2)(a)–(e) of the Act.
I conducted a hearing on 14 March 2024. At the hearing, Mr Matemera represented himself, gave sworn evidence and was cross-examined. The Respondent sought permission to be represented by Ms Rosemary Roach of Hall & Wilcox. Noting that there was no objection from Mr Matemera, I was satisfied pursuant to s 595(2)(a) that it was appropriate to exercise my discretion and granted permission. Ms Jaymie Clark, Human Resources Business Partner, gave evidence for the Respondent.
Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. The court book was tendered into evidence with the consent of both parties. References to evidence are by way of the relevant page number in the court book.
Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that justify an extension of time.
The detailed reasons for my decision follow.
Events that led to this matter
On 4 December 2023, Mr Matemera was summonsed to a meeting and informed of his dismissal. Mr Matemera received a termination letter that stated he had not successfully met the requirements of the role; he had not demonstrated the skill and competence required to perform the role; and his supervisor had addressed performance concerns with him.[2]
The events that followed Mr Matemera’s dismissal are largely uncontested.
On 5 December 2023, Mr Matemera called Ms Clark to discuss the decision to terminate his employment. Mr Matemera expressed his disappointment in the decision and generally refuted the grounds for dismissal. Ms Clark repeated the grounds for his dismissal as per the termination letter and stated that the Respondent had the right to end Mr Matemera’s employment within the probation period.[3]
Ms Clark’s unchallenged evidence is that during this phone call she told Mr Matemera she would think over what he had raised and see if there was any further information that the Respondent could provide to him. It was also unchallenged that Ms Clark said to Mr Matemera that any inquiries she made would not change the outcome in the dismissal and he affirmed that he was not seeking a changed outcome.[4]
Ms Clark asked Mr Matemera’s former manager, Ms Magdelena Jansen to call Mr Matemera to determine if there was any further information that could be provided to Mr Matemera. Ms Jansen did so on 7 December 2023.[5]
Over 8 December to 11 December 2023, Mr Matemera and Ms Clark called each other, but were unable to connect. On 12 December 2023, Ms Clark informed Mr Matemera that she was extremely busy in workshops and would be available to call him the next day. Mr Matemera asked her for her work email so that he could send her an email about his issues to date. Ms Clark provided her email address to Mr Matemera the next day.[6]
On 18 December 2023, Mr Matemera sent to Ms Clark a letter detailing his grievances with his dismissal and how he was treated at work.[7] Mr Matemera’s email containing the letter stated:
“Good morning Jaymie,
I have attached a response to the termination letter I received. I have put down my position on this issue and I await your response as an organisation to make sure you look into this matter seriously as all the evidence is within your reach.
I must say, I have never done this before in my carer and I hope and pray I don’t have to do this again, but what has happened to me during my tenure at Anglogold has forced me to take a stand against unfair practices.
If you do not have a way of resolving this amicably please let me know. I will take it up from there and pursue available external avenues until justice has been achieved.
Kind regards,
Blessmore”[8]
Ms Clark replied on 20 December 2023 with:
“Hi Blessmore,
Acknowledging we have received your email and I will review your concerns raised and provide a response.
Please note that due to our Christmas Shutdown, we are returning to the office on January 2nd, therefore I will likely be in a position to respond to you in early January.
If you have any questions in the meantime, please do not hesitate to contact me.”[9]
Mr Matemera replied that same day with:
“Hi Jaymie,
Thank you for your response. I do appreciate the fact that you will be having your Christmas Break. Have a merry Christmas and a happy new year.
I however, need you to give me at least a date, to expect an update as I cannot wait indefinitely. This is a time sensitive issue for me and I am not sure how it is being prioritised [on] your end.”[10]
On 22 December 2023, Ms Clark informed Mr Matemera that she would endeavour to provide a response to him by 12 January 2024. On 12 January 2024, Ms Clark informed Mr Matemera that the Respondent would provide a response to his letter by close of business, 15 January 2024.[11]
On 15 January 2024, Ms Clark provided a formal response to Mr Matemera’s concerns.[12] Mr Matemera filed his application on 2 February 2024.
Should an extension of time be granted?
Under s 366(1) and (2) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.
It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[13] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[14]
In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2):
(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 similar position.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[15]
I set out my consideration of each matter below.
3.1 Reason for the delay
For Mr Matemera’s application to have been made within 21 days after the dismissal took effect, Mr Matemera needed to lodge by midnight on 27 December 2023. The delay is the period commencing immediately after that time until 2 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[16]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[17]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[18]
Mr Matemera’s case is that he lodged his application late for the following reasons:
(a)He initially sought redress of the situation with the Respondent directly before pursuing other options.
(b)The Respondent deliberately delayed responding to his letter to ensure that he would not be able to take his case to the Fair Work Commission.
(c)His sister-in-law tragically passed away on 20 December 2023, after her health had deteriorated over the preceding months. This heavily affected his him and his wife, and he did not have the capacity to make an application.
Mr Matemera provided evidence that over October 2023, his family had to navigate the difficult situation of flying his wife over to Zimbabwe to be with her sister. This involved considerable difficulty and stress given that his wife is on a visa. Ms Matemera arrived back home in Perth on 31 October 2023. This evidence was not contested by the Respondent, and I accept that these events occurred.
During the hearing, Mr Matemera gave evidence that during December 2023 when he was communicating with the Respondent’s representatives, he knew that there was a 21-day time limit for making an application to the Commission.
Mr Matemera also gave evidence that when Ms Clark wrote to him on 15 January 2024, he knew that he was out of time to file an application. At that point, he started to research what options were available to him to pursue his grievances against the Respondent, where he discovered that he could apply for an extension of time.
Considering the evidence, I make the following findings:
(a)Mr Matemera did contact the Respondent to communicate his disagreement with his dismissal. However, I accept Ms Clark’s evidence that she was clear from at least 5 December 2023 that the outcome of his dismissal would not change.
(b)I accept that Mr Matemera and his family were affected by his sister-in-law’s passing. I accept that this impacted on his emotional well-being and his time to file his application after 20 December 2023.
(c)Mr Matemera was aware from the date of his dismissal that the Commission has a 21-day time limit for the filing of dismissal-related applications.
(d)Mr Matemera made his application on 2 February 2024 as he found that he could make an application for an extension of time.
I am very sympathetic to Mr Matemera and his family for their loss. The grief that comes with the passing of a close family member can be immense and consuming. My decision does not change the significance of Mr Matemera’s sorrow.
However, I find that Mr Matemera has not provided a satisfactory reason for the delay, particularly given the length of the delay. Throughout the whole timeline of events, Mr Matemera was aware of the need to file his application within 21 days. This is a factor that weighs against a finding of exceptional circumstances.
3.2 Action taken to dispute the dismissal
Mr Matemera submits that he sought redress of his grievances with his dismissal with the Respondent directly.
However, as per my finding at [34], the Respondent was clear with Mr Matemera that the outcome of his dismissal would not change.
I find this to be a neutral factor in assessing whether there are exceptional circumstances.
3.3 Prejudice to the employer (including prejudice caused by the delay)
The Respondent accepts that despite the length of the delay, this is a neutral consideration. I agree with the Respondent.
3.4 Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[19] Further, the primary consideration is whether Mr Matemera has an arguable case.[20]
In his s 365 application, Mr Matemera contends that he was subject to discrimination in terms of how he was treated by his supervisor. In particular, he alleges that information was withheld from him, and his written requests were ignored. Further, Mr Matemera contends that the differential treatment he experienced was bullying and cites differences in workload and management compared to other co-workers.
The Respondent denies these assertions.
In closing submissions at the hearing, it was put to Mr Matemera that his application does not identify the alleged prohibited grounds of discrimination. Mr Matemera submitted from the bar table that he was discriminated against on the basis of his gender and his race. I am unable to put weight into this submission given that Mr Matemera did not lead any evidence to support it.
In cases such as this one where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing the Applicant’s case at its most favourable.[21]
I find that given the limited evidence provided by Mr Matemera and the Respondent’s denial of his allegations, I am unable to make an assessment on the merits of his matter. I find that this is a neutral factor in assessing whether there are exceptional circumstances.
3.5 Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having considered all the circumstances of this matter and the factors in s 366(2), I am not satisfied that there are exceptional circumstances. I find that the majority of the considerations in s 366(2) are neutral, which does not support a finding of exceptional circumstances.
As I am not satisfied that there are exceptional circumstances, Mr Matemera’s application must be dismissed. An Order to this effect will issue separately.[22]
COMMISSIONER
Appearances:
B Matemera, Applicant
R Roach for the Respondent
Hearing details:
2024.
Perth
March 14.
[1] Acts Interpretation Act 1901 (Cth), s 36(2).
[2] Digital Court Book (DCB), page 17.
[3] Ibid, page 53, [11].
[4] Ibid, page 53, [12].
[5] Ibid, page 53, [13].
[6] Ibid, page 53, [14]-[15].
[7] Ibid, page 19-24.
[8] Ibid, page 30.
[9] Ibid.
[10] Ibid, page 31.
[11] Ibid.
[12] Ibid, page 25.
[13] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[14] Ibid.
[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[16] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[17] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[19] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[20] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[21] Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 at [42].
[22] PR772403
Printed by authority of the Commonwealth Government Printer
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