David Hill v Pilbara Manganese Pty Ltd T/A Consolidated Minerals

[2013] FWC 7257

[2013] FWC 7257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

David Hill
v
Pilbara Manganese Pty Ltd T/A Consolidated Minerals
(C2013/5267)

COMMISSIONER WILLIAMS PERTH, 23 SEPTEMBER 2013

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr David Hill (Mr Hill or the applicant) under section 365 of the Fair Work Act 2009 (the Act) against Pilbara Manganese Pty Ltd T/A Consolidated Minerals (the respondent).

[2] A conference under section 368 of the Act was conducted on 19 August 2013. The respondent’s participation in that conference was on the basis that it reserved its rights regarding its objection that the application had been made outside the statutory time limit provided for in section 366 of the Act. At the conclusion of the conference the dispute was not resolved.

[3] The respondent has pressed its objection and this decision deals with that matter.

[4] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“366 Time for application

(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).

(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.”

[5] Mr Hill’s application states that he was dismissed on 1 July 2013. His application was made on 23 July 2013. The application was made one day after the 21 day time limit had passed.

[6] Both parties have provided written submissions as to whether the Commission should extend the time for Mr Hill to make his application.

Are there are exceptional circumstances?

The reason for the delay

[7] Mr Hill explains that after he was dismissed he tried to work things out with the respondent through emails and phone calls. He has provided details of those emails including emails dated 3 July 2013 to a superintendent of the respondent at its Woodie site. Having received no reply Mr Hill then sent an email to the Human Resources Group of the respondent on 9 July 2013.

[8] In reply on 9 July 2013 he received a phone call from the Mining Manager - Woodie Operations (the Mining Manager) saying that he would forward a letter to Mr Hill explaining the respondent’s reasons for dismissing him.

[9] A letter from the respondent was received on 18 July 2013.

[10] Mr Hill replied by email the following day explaining his view about a number of the issues apparently involved in the respondent’s decision to dismiss him.

[11] In response on 20 July 2012 the Mining Manager emailed Mr Hill thanking him for his letter and stating that the points he made had been taken into consideration but that the respondent’s decision to terminate his employment would stand.

[12] Mr Hill says that he then realised he wasn’t going to get any satisfaction regarding his request to be reinstated and so on 21 July 2013 he decided to make an application and downloaded the application form and filled it in. Mr Hill says he rang the Commission on 23 July 2013 to provide his credit card details and at that time he was advised he had filled in the wrong form and needed to lodge the correct form.

[13] Mr Hill says he had no knowledge that there was a time limit of 21 days.

[14] The respondent has not challenged Mr Hill’s explanation of what occurred.

[15] Relevantly Mr Hill’s explanation for the delay of one day in making his application was that he had sought to have the respondent review its decision to dismiss him and to this end had corresponded with a number of the respondent’s staff. It was only after the respondent had advised him that it would not change its decision that he decided to make this application. He then promptly took action to do so however initially in error he completed the wrong form.

[16] Considering the applicant’s reasons for the delay I am satisfied that these reasons satisfactorily explain a delay of one day in making this application. The majority of the delay was a consequence of the respondent’s delayed response to his enquiries. Had the respondent more promptly responded to Mr Hill after he first enquired of them on 3 July 2013 he obviously would have easily been able to have made his application within time.

[17] The reason for the delay in this case is in my view an acceptable reason.

Any action taken by the person to dispute the dismissal

[18] As explained above the applicant has actively disputed his dismissal directly with the respondent prior to making this application.

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

[19] The delay in making this application of one day does not prejudice the employer.

The merits of the application

[20] Mr Hill’s application is based on his argument that he had been temporarily absent due to illness shortly before his dismissal and he believes that that was one of the reasons the respondent dismissed him. The respondent accepts that Mr Hill had been absent due to illness but denies that this was one of the reasons for his dismissal. The respondent has explained that there was a range of behavioural concerns and issues they had with Mr Hill’s performance that led to their decision to terminate him during his period of probation.

[21] Section 360 of the Act recognises that there may be multiple reasons for a respondent’s actions. So it may be that an employer’s decision to dismiss an employee may be made for more than one reason. Consequently the fact that the respondent is able to point to concerns it had about Mr Hill’s behaviour and performance does not exclude Mr Hill’s argument that one of the operative factors for the respondent’s decision to dismiss him was earlier temporary absence due to illness.

[22] On the limited information before the Commission the weakness in Mr Hill’s case is that he is not able to point to any particular evidence that the respondent did take account of his temporary absence due to illness when deciding to dismiss him. It is only through a full hearing in a court that a final conclusion on this point would be able to be made.

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

[23] There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

[24] 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. In this instance there is an acceptable reason for the one day delay in making this application. In addition the applicant has from the outset challenged his dismissal directly with his employer. Further the merit of the applicant’s case is not strong however this is not an instance where there is no reasonable prospect of success.

[25] Considering all of the circumstances here I am persuaded that I should exercise the discretion available to allow a further period for this application to be made. An order will be issued to that effect.

[26] Separately given the applicant explained he sought only reinstatement and the respondent at conference advised they would not be willing to reinstate Mr Hill I will also issue a certificate under section 369 of the Act.

COMMISSIONER

Final written submissions:

Applicant, 29 August 2013

Respondent, 4 September 2013

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