Daniel James Hunter v Karara Mining Ltd - [2022] FWC 494

[2022] FWC 494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel James Hunter
v

Karara Mining Ltd

(U2022/409)

DEPUTY PRESIDENT BEAUMONT

PERTH,11 MARCH 2022

Application for an unfair dismissal remedy

The issue

Mr Daniel James Hunter (the Applicant) applied for an unfair dismissal remedy, having been dismissed from Karara Mining Ltd (the Respondent) on 15 December 2021. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.

The Respondent, a mining company, submitted that it was subject to the direction of the Western Australian Chief Health Officer, who had issued a direction that required FIFO workers to be partially vaccinated by 1 December 2021 and further vaccinated by 1 January 2022, to access mine sites. The Applicant was dismissed on 15 December 2021, because of his failure to provide proof of his first COVID-19 vaccination by 26 November 2021. The Applicant submits that he did not become aware of his dismissal until after 15 December 2021, hence why his unfair dismissal application was made late.

In the Applicant’s case, he was provided with a further 14 days to provide proof of vaccination or medical exemption, having been demobilised from the mine site on or around 30 November 2021. The Applicant had taken annual leave for that period post demobilisation.

The Applicant submits that he grew suspicious that his employment had been terminated after not hearing from the employer once his annual leave had been exhausted on 15 December 2021. The Applicant was unable to recall precisely when he had become aware that he had been dismissed. The Applicant asserts that he checked an email account that had previously been blocked and found that his dismissal letter had been sent to that account. The Applicant presses that the Respondent knew he had experienced trouble with that email account in 2019, because he had communicated that to the Respondent and asked that it utilise his father’s email address for correspondence that was being sent at that time.

The Applicant therefore attributes the one-day delay in filing his application, on the Respondent not taking action to ensure he received timely notification of his dismissal.

Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other matters are not relevant for the purpose of the application.

For the application to now proceed, it is necessary for the Applicant to show that his application was made in time or to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel James Hunter v Karara Mining Ltd

Details

AGLC: Daniel James Hunter v Karara Mining Ltd [2022] FWC 494
Case: [2022] FWC 494
Decision Date: 11 MARCH 2022

CaseChat Overview and Summary

Daniel James Hunter sought a remedy for unfair dismissal against Karara Mining Ltd. The primary issue was whether the application for an unfair dismissal remedy was lodged within the statutory 21-day period and, if not, whether exceptional circumstances warranted an extension of time. The applicant was dismissed on 15 December 2021 for failing to provide proof of vaccination by 26 November 2021, as mandated by the Chief Health Officer of Western Australia. The applicant lodged his application for unfair dismissal on 16 December 2021, one day outside the prescribed period. The applicant claimed he did not know of his dismissal until after 15 December 2021.The court examined when the dismissal took effect, whether the application was made within the 21-day period, and if exceptional circumstances warranted an extension of time. The court found that the dismissal took effect on 15 December 2021 when the applicant was provided with a reasonable opportunity to find out he had been dismissed. The applicant's application was therefore lodged one day late. The court then assessed whether exceptional circumstances warranted an extension of time. It found that the applicant had not provided a credible explanation for the delay and had not taken action to dispute the dismissal. The court also considered the merits of the application and fairness as between the applicant and others in a similar position. Ultimately, the court was not satisfied that the criteria for exceptional circumstances were met, and the application for an unfair dismissal remedy was dismissed.

Orders