Deborah Mincherton v Mount Gibson Mining Limited

[2015] FWC 3591

[2015] FWC 3591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Mincherton
v
Mount Gibson Mining Limited
(U2015/1701)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 MAY 2015

Application for relief from unfair dismissal.

[1] Mrs Deborah Mincherton alleged that the termination of her employment by Mount Gibson Mining Limited (Gibson Mining) on 22 December 2014 was unfair.

[2] Mrs Mincherton’s unfair dismissal application lodged on 14 April 2015 was not made within 21 days of the date of the dismissal.

[3] I granted both Mrs Mincherton and Gibson Mining permission to be represented by a lawyer and paid agent respectively as I accepted the submission that neither party would be able to represent themselves effectively.

[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[6] Mrs Mincherton gave evidence that prior to her dismissal her mother required her care. On or about the time of her dismissal, her mother was discharged from hospital and Mrs Mincherton cared for her over the Christmas break. She had asked Gibson Mining to review her grievance concerning events which took place on 17 December 2014 and hoped for a favourable result. In January 2015 Mrs Mincherton took a prebooked holiday in Busselton. She did, however, have to return home on several occasions to care for her mother, attend to paperwork and attend appointments with her.

[7] Mrs Mincherton received advice in early January 2015 that her mother could no longer live at home and she needed to find a residential facility for her. She was also required to provide significant information to them.

[8] In February 2015, Mrs Mincherton attended a two week course to maintain her qualifications. She also completed the post course assessment the next week as she needed the certificate to obtain another job.

[9] She spent her spare time with her mother and packing up her house and preparing it for sale. She said her priority from December was to look after her mother. As well she had been looking for other employment.

[10] She submitted that as she lives in a town 260 kilometers north east of Perth, she had difficulty accessing legal advice. She was only able to seek initial legal advice in mid March 2015. She submitted that she became very distressed at the initial meeting.

[11] She said she was unaware of the 21 day time limit to lodge her application because she had been told by a co-worker that she had six months to apply.

[12] She said that following her initial appointment, she prepared a detailed chronology of some 85 pages which took her some time. Her application was lodged soon after she completed this chronology.

[13] At the hearing, when I asked why Mrs Mincherton had taken a month to lodge her application after receiving legal advice in March 2015, it was suggested that her legal advisers were not able to advise her to lodge her application as she became distressed and needed time to prepare her chronology. It was further suggested that there had been some change of personnel at the legal firm she consulted. Mrs Mincherton did not give this evidence about a change of staff at the legal firm and I did not permit her to be recalled after her evidentiary case had been closed. One, because she would have heard the statement given by her representative and secondly, it was information that could have been included in either of her first or second witness statements. Further, there was no evidence filed by her legal representative of any representative error.

[14] It was submitted that given the complexity surrounding the events that led to Mrs Mincherton’s dismissal, it was necessary for her to give detailed instructions to her lawyers before they could make an assessment of her claim. It was submitted that it would be professional misconduct to not take proper instructions prior to lodging the application.

[15] I do not accept this submission. Mrs Mincherton’s unfair dismissal claim involved no particular complexity. She was dismissed for performance reasons. She denied not following the procedures or at least if she did not follow the procedures, she did so with the authority of her supervisor. This matter involved factual disputes about whether Mrs Mincherton did what was alleged. Further, the Fair Work Act 2009 (the Act) provides that an employee only has 21 days to file an application. Mrs Mincherton did not require a lawyer to file her application. If her lawyers did not feel able to advise her promptly, she could have completed the form herself.

[16] The reason Mrs Mincherton took no action to make inquiries about her dismissal was because she thought she had six months to lodge her application. It was submitted, for example, that she telephoned legal services but they required her to travel to Perth to receive advice. She did not do that because she thought she had six months to lodge her application. As a result, other matters were given priority including caring for her mother, her holiday, her course and looking for a new job.

[17] There was no evidence that Mrs Mincherton was so isolated that she was unable to access information. A simple Google search of “unfair dismissal Australia” has as its first non advertisement link the Fair Work Ombudsman and its second the Fair Work Commission. A cursory investigation would have told Mrs Mincherton that she had 21 days to lodge her application.

[18] I accept that until mid March 2015 Mrs Mincherton had a reasonable explanation for some of the delay. I accept that the illness of one parent so soon after losing another parent is distressing and I understand that she needed to give priority to her mother. However, given she took holidays and was able to complete a two week course it is clear that these factors do not explain the whole of the delay.

[19] However, in mid March Mrs Mincherton sought legal advice but did not lodge her application until 14 April 2015.

[20] I have given consideration to whether representative error has contributed to the subsequent delay, however, in light of the absence of any evidence from either Mrs Mincherton or her lawyers about representative error and in the absence of any submissions that representative error caused a further delay, I will not make any findings to that effect.

[21] By the time Mrs Mincherton sought legal advice she was already well outside the time limit set by the Act. She then took more than 21 days to lodge her application. It is this additional delay that causes me to conclude that Mrs Mincherton has not provided a reasonable explanation for the whole of the delay and this weighs against extending time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[22] Mrs Mincherton was aware of the dismissal when it took effect. She had the full 21 days to lodge her unfair dismissal application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[23] Mrs Mincherton submitted that she disputed the dismissal after it took effect. This is not accurate. Before her dismissal, she lodged a grievance about her treatment by her supervisor on 17 December 2014. At this time she had not been dismissed. After her dismissal she made no contact with Gibson Mining. This weighs against extending time.

(d) prejudice to the employer (including prejudice caused by the delay);

[24] Gibson Mining submitted that there had been significant changes and redundancies since Mrs Mincherton’s dismissal. It was also submitted that a number of human resources personnel who had been involved in the disciplinary and grievance matters involving Mrs Mincherton had left its employ. It accepted that there was significant documentation.

[25] In cross examination, Ms Reilly from Gibson Mining accepted that the decision maker and Mrs Mincherton’s supervisor were still employed. Evidence was given that Ms Burke, the general manager of human resources, was currently travelling overseas.

[26] I accept the evidence that there have been changes since Mrs Mincherton’s employment was terminated which may impact on any remedy the Commission might give if it finds that Mrs Mincherton was unfairly dismissed. There was no evidence that Gibson Mining would not be able to present evidence of the events that led it to decide to terminate Mrs Mincherton’s employment. The prejudice to Gibson Mining is not sufficient to weigh against an extension of time.

(e) the merits of the application;

[27] Mrs Mincherton was terminated for not following the Organisation's Fitness for Work Procedure. Mrs Mincherton had two earlier warnings. She accepted in cross examination that she had lodged a grievance about the second warning and after an investigation by the Chief Operating Officer, she was told that the warning would stand. She accepted that she was given an opportunity to respond to the allegations made about the events of 17 December 2014. Mrs Mincherton denied that she did not follow the Fitness for Work Procedure. It was her evidence that if she departed from the procedure it was done with the knowledge and authorisation of her supervisor.

[28] Mrs Mincherton gave detailed evidence of why she said her dismissal was unfair. This evidence was not challenged. Gibson Mining did not call any evidence on merits. While an extension of time conference is not an opportunity to determine the merits of the case, if a respondent puts on no evidence that at least on a prima facie basis that the dismissal was fair, the only possible conclusion is that the applicant’s case on a prima facie basis is strong.

[29] I therefore accept that Mrs Mincherton has an arguable case that her dismissal was unfair and this weighs in favour of extending time.

(f) fairness as between the person and other persons in a similar position.

[30] There were no submissions on this criterion.

Conclusion

[31] It was submitted that the combination of events faced by Mrs Mincherton were out of the ordinary. I accept that submission in relation to the reasons for the delay until mid March 2015. However, from the time she sought legal advice it was incumbent on Mrs Mincherton to act promptly. She did not have the luxury of taking another month to lodge her application. This case if finely balanced, however, I am unable to find that the strength of Mrs Mincherton’s case outweighs her lack of a reasonable explanation for the delay after she received legal advice. An extension of time will not be granted and the matter must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

D Bedenham for the Applicant

B Honey and S Spivey for the Respondent

Hearing details:

2015.

Hearing via telephone:

22 May.

 1   [2011] FWAFB 975.

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