Christopher Lu v Newmont Mining Services Pty Ltd T/A Newmont Asia Pacific

[2017] FWC 1724

[2017] FWC 1724

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Christopher Lu
v
Newmont Mining Services Pty Ltd T/A Newmont Asia Pacific
(C2016/7414)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 27 MARCH 2017

Application to deal with contraventions involving dismissal.

[1] On 16 December 2016 Mr Christopher Lu (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Newmont Mining Services Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent in July 2012. He was an Electrical Project Engineer and later an Electrical Engineer (Maintenance). He says that he was dismissed on 19 September 2016 and the dismissal took effect on 27 September 2016.

[3] The application was lodged some two months (60 days) out of time.

Alleged Contravention

[4] The Applicant submits that he was dismissed on the grounds of mental disability. He had a nervous breakdown in November 2014 and thereafter was under medical treatment. The Respondent reacted by putting him on a performance improvement plan and thereafter dismissing him because of his alleged poor performance. A breach of s.351, in respect of mental disability, is alleged.

Respondent’s Submissions

[5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[6] The Respondent states that the Applicant was dismissed because he failed to address the issues relating to his performance and conduct, despite being given many opportunities to do so and being repeatedly counselled.

Relevant Legislation

[7] Section 366 of the Act provides:

366 Time for application

366(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).

366(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.”

Approach of the Commission

[8] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[9] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[10] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Commission Proceedings

[11] On 23 December 2016, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 17 February 2017.

[12] The Applicant was represented by Mr S. Banovich, solicitor. The Respondent was represented by Ms C. Mitchell and Ms A. Kennedy, solicitors. Both were granted permission to appear pursuant to s.596 of the Act.

[13] The Applicant lodged a witness statement prior to the hearing together with medical certificates and other evidence from his specialist, psychiatrist, Dr R. Magtengaard. Dr Magtengaard provided a witness statement and gave oral evidence during the hearing. The Respondent’s solicitors lodged a Notice to Produce with respect to Dr Magtengaard’s case notes which I issued on 14 February 2017.

Matters to be taken into account pursuant to s.366(2)

[14] 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

[15] The Applicant says that he was “incapacitated due to his medical illness” up to the time of lodgement. He suffers from “morbid depressive disorder and obsessive compulsive disorder”. As well, he attempted to contact law firms but could not get legal representation until 28 November 2016. It was only then that he was made aware that there was a 21 day time limit for filing.

[16] I do not doubt Dr Magtengaard’s evidence about the Applicant’s condition. I am not convinced, however, that it can be properly characterised as being of such an order that he was incapacitated and therefore prevented from lodging the application. In addition, it is apparent that the Applicant was able to function sufficiently to perform a number of tasks. No real explanation is provided as to why he could not get legal representation and no detail is provided of his attempts to do so. He was able to get representation from his current solicitors on 28 November but the application was still not lodged until 16 December 2016. Finally, it emerged, at the hearing, that the Applicant had travelled overseas to Ireland and Germany for three to four weeks, following the dismissal, by himself, on vacation. I find that this activity is not consistent with incapacity to lodge the application

[17] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

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

[18] The Applicant sent a letter appealing the decision to terminate to the Human Resources Officer on 21 September 2016.

[19] However, I am not satisfied that this is a matter of significance in the circumstances of this case.

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

[20] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) Merits of the application

[21] The Applicant alleges that he was put on a performance improvement plan unnecessarily and that the plan was implemented in an unfair manner. He also says that he was not provided with adequate training and support.

[22] The Respondent says that it followed an appropriate process and the Applicant was given every opportunity to address the issues that were raised with him. It further says that there was no element of discrimination in the dismissal.

[23] It seems to me likely that the Respondent would be able to show that the performance issues were the operative reason for the dismissal. Accordingly, the merits of the application do not given weight to the existence of exceptional circumstances.

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

[24] This factor was not addressed and has not been taken into account.

Conclusion and Order

[25] 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.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Christopher Lu under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Banovich, solicitor for the Applicant;

C. Mitchell and A. Kennedy, solicitors for the Respondent.

Hearing details:

Telephone Hearing:

February 17.

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