David Olsen v McAleese Resources Pty Ltd

[2014] FWC 2698

[2014] FWC 2698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Olsen
v
McAleese Resources Pty Ltd
(U2014/4327)

DEPUTY PRESIDENT MCCARTHY PERTH, 28 APRIL 2014

Application for relief from unfair dismissal - extension of time - application dismissed.

[1] Mr David Olsen (the Applicant) lodged an Unfair Dismissal Application (UDA) on 4 February 2014 claiming that he was unfairly dismissed from his employment with McAleese Resources Pty Ltd (the Respondent). The UDA states that the Applicant’s dismissal took effect on 25 October 2013. The UDA was therefore clearly lodged well outside the twenty-one days allowed for lodging UDA’s.

[2] The Applicant in the UDA acknowledged that the Application was outside the time allowed. The reasons given were:

“I contacted Graham Terry (G.T) in Kalgoorlie office on 28th October 2013.

I explained my side of story. He said he would look into it and get back to me. But give me a week or two knowing he is a busy man with contacts. I have tried ringing and have had no response.

Now I have waited long enough and Im (sic) taking it into my own hands.”

[3] The Respondent lodged an Employer Response to the UDA (the Employer Response) on 11 March 2014. The Respondent objected to the Application on the grounds that:

“The Applicant was notified of his dismissal on 25 October 2013. The 21 day time limit has long past.

The Respondent does not see that Applicant’s reason for delay as being a valid reason for a application being filed 106 days out of time.”

[4] The matter was allocated to me on 28 March 2014. I wrote to the Applicant on that day and requested that he provide me with information regarding those matters I must consider in determining whether exceptional circumstances existed for an extension of time to lodge the application beyond the twenty-one days allowed.

[5] The Applicant responded by email on 11 April 2014 and provided the following information:

“A) On the 28th October I contacted Graham Terry in the Kalgoorlie office. I explained my side of the story. Graham said he would look in to the situation but he asked that I give a couple of weeks knowing he was a busy man. I tried to contact him a multiple of times after and had no response. I waited until after the Christmas break to try again, after getting no response I decide to contact Fair Work Commission but was transferred from phone call to phone call and tried multiple different phone numbers for a couple of weeks, then eventually got directed to the right area and filled an unfair dismissal claim in February 2014.

B)  At the time of the dismissal I thought it was unfair but being that I was tired off night shift and had to pack my belongings to catch a flight home I did not argue the dismissal over a broken hose. I then traveled (sic) home to Tasmania and had some sleep before contacting Graham Terry to ask questions.

C)  I contacted Graham Terry after being back in Tasmania, hoping for an explanation for being dismissed over what I classed as a minor incident.

D)  There was no prejudice to the employer at the time or the dismissal facts were unclear and still now facts remain unclear regarding the issue.

E)  On the 25th of October 2013 when dismissed I was dismissed due to have an incident breaking a hose in a water cart which I later saw was double clamped because there had been issues with it previously. But yet had not be told of the issue nor was I warned after having the incident. further I was given a written warning for failing to stop on a stop sign that was turned and could not see the sign from where I was travelling (sic).

In the objection letter from McAleese it has been stated that I displayed a poor attitude towards safety procedures and process, especially in relation to maximum loading weight of road trains.

Earlier in October there was a demonstration Mercedes road train on site. I was made a wear by other employees that a supervisor was putting this truck "to the test" by loading it in excess of 180t on 4 trailers.

When I loaded a trailer over 170t I took the load right print out to the supervisor on that shift (Justin Graham) and notified him that the weight was over due to the load right on the loader not working correctly and I also notified the driver that his load may not have been correct. the docket  may have said the weight was over but while the load right was not working correctly the trucks load weight may well have actually been under weight because there was no calibrated weigh bridges for the trucks to go over before leaving site.

F) Previous to me having an incident with a hose breaking on the water cart I was driving the morning I was dismissed on the 25th of October, I know the same hose was broken a number of times over a 4-5 week period, with no discipline to the drivers of the water cart on those occasions or further enlightenment of the issue to other employees I feel that it was very unfair that I was instantly dismissed.” 

Consideration

[6] The reason for the delay appears to be two-fold. Firstly, the Applicant was awaiting and hoping that the employer would reconsider the decision to dismiss. Secondly, the Applicant appears to have had some difficulty getting advice regarding his options. I do not regard these explanations as good grounds to support a finding of exceptional circumstances.

[7] The Applicant became aware of the dismissal when it took effect.

[8] The only actions by the Applicant appear to have been contacting the Respondent and making some enquiries as to his options. These are not reasons weighing in favour of a finding of exceptional circumstances.

[9] It does not appear to me that the employer will be prejudiced.

[10] The Respondent stated in the Employer Response that the Applicant was dismissed for the following reasons:

“1. The Applicant displayed a poor attitude towards safety procedures and process, especially in relation to maximum loading weights of road trains.

2. The Applicant was warned by letter on 8 October 2013 of the need to adhere to maximum weights, and that he was in breach of the Respondent’s safety policies, standards and procedures ...

3. The Applicant acknowledged this warning. The Applicant was aware that further breaches may result in termination as set out in the 8 October 2013 letter.”

[11] The Applicant submitted that (i) there had been issues (difficulties or malfunctions) with the equipment concerned on previous occasions which he had not been warned (alerted) of; (ii) he could not see the stop sign; (iii) there were difficulties and previous incidents involving load weights; and (iv) other employees had experienced the same difficulties with the equipment (the hose) but had not been dismissed. In essence it seems the Applicant was asserting that there were reasonable mitigating factors regarding the incidents and that the dismissal was a disproportionate response to the conduct involved.

[12] I do not consider that there is sufficient merit in the Application to weigh in favour of an extension of time.

[13] It would be unfair to other persons who may be in a similar position if this Application were to be allowed.

Conclusion and Decision

[14] I find that exceptional circumstances do not exist. The Application will not be allowed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 11 April 2014

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