Denis Medancic v CB&I Constructors Pty Ltd

[2015] FWC 2053

[2015] FWC 2053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Denis Medancic
v
CB&I Constructors Pty Ltd
(C2014/7114)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 26 MARCH 2015

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

[1] Mr Denis Medancic (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 15 November 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that his dismissal by CB&I Constructors Pty Ltd (CBI - the Respondent) on 24 October 2014 was in contravention of the general protections provisions of the Act. As the application had been lodged one day outside the statutory timeframe for lodgement specified as s.366(2) of the Act, the Commission wrote to Mr Medancic and CBI on 27 November 2014 advising that a decision would need to be made as to whether further time for lodgement of the application would be allowed.

[2] Directions were issued requiring the parties to file their submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Those directions invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with its directions. While both parties filed submissions, neither party asked to be heard on the matter.

[3] For the reasons set out below I have found that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366 of the Act. The application will now be further allocated for the purposes of listing a s.368 conference in due course.

Background

[4] Mr Medancic commenced a Traineeship in Rigging with CBI in late 2013. The training contract had an expected completion date of 3 October 2015.

[5] In late May 2014 work was winding down at CBI’s Henderson and surrounding facilities for the Gorgon Mechanical, Electrical and Instrumentation stage where Mr Medancic was working. As a result, redundancies have occurred on a regular basis since that time.

[6] In late July Mr Medancic was emailed, at his request, a voluntary redundancy form by Ms Olga Clarke, Senior Employee Relations Advisor with CBI 1. On 6 October 2014 Mr Medancic submitted a completed Voluntary Redundancy Nomination Form (the Form) by email to Ms Clarke. His covering email included the following:

“Hi Olga, as discussed earlier last month regarding voluntary redundancy I’ve signed and attached a copy of my voluntary redundancy form ...” 2

[7] The Form makes it clear that nominating for a voluntary redundancy does not guarantee that it will be granted and that only certain classifications may be considered for a voluntary redundancy at a particular time. This latter point was also reiterated in Ms Clarke’s email to Mr Medancic acknowledging receipt of the Form.

[8] In subsequent developments, on 15 October 2014 Mr Medancic completed a Hazard Reporting and Intervention card raising a concern about him being instructed to return to work without a medical clearance. The issue was discussed with the health and safety area on 16 October 2014. However, on 20 October 2014 Mr Medancic wrote to Mr Kimball Powell of the CBI-Kentz Joint Venture requesting an immediate response to his concerns. Mr Powell responded later that day advising that should Mr Medancic wish to raise a formal health and safety concern then he should do so via his site representative, Mr Joel Forrest. It is not clear from the material before the Commission as to whether or not Mr Medancic further pursued the issue.

[9] On 24 October 2014 Mr Medancic was advised by Ms Clarke by email that his voluntary redundancy nomination had been successful and that his redundancy was effective that day. Prior to sending that email, Ms Clarke had unsuccessfully tried to call Mr Medancic. Mr Medancic was off work on sick leave at the time of his dismissal. Mr Medancic was one of eighteen employees made redundant on 24 October 2014.

[10] Mr Medancic lodged his general protections application at 2.54.07am (Australian Western Standard Time - AWST) on 15 November 2014 - almost three hours outside the statutory timeframe. In his application he alleged that CBI had contravened a number of the general protections provisions of the Act, including s.352 which deals with temporary absences due to illness or injury. Among other things, Mr Medancic broadly contends that he was dismissed because he reported a work, health and safety issue.

The Relevant Legislation

[11] 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.”

Whether to allow a further period for the application to be made

[12] 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

[13] Mr Medancic stated that he was unaware of the 21 day timeframe for lodgement of the application, and that his personal statement required a lot of time and resulted in stress which contributed to the delay. Mr Medancic indicated and that he had tried multiple times to lodge the application prior to midnight on 14 November 2014 but due to technical difficulties in uploading the documentation he was unable to do so.

[14] CBI made no submission on this factor.

[15] An examination of the Commission’s e-filing log indicates that Mr Medancic logged in at 2.13.37am (Australian Eastern Daylight Time - AEDT) on 15 November 2014, which is 11.13.37pm (AWST) on 14 November 2014. Further, ‘submit’ events were logged at 11.55.55pm (AWST) and about a minute later. The next attempt to submit an application was just over 20 minutes later, with an application being successfully lodged just after 2.54am (AWST) on 15 November 2014 - about three hours after the 21 day statutory time frame had expired.

[16] On that basis, I am satisfied that Mr Medancic made efforts to lodge his application within the statutory timeframe but was unable to do so due to issues uploading the relevant files to the Commission’s e-filing facility. Further, given the time of day, there would have been no technical support available to Mr Medancic to assist him nor would it have been possible for him to lodge his application by telephone.

[17] These considerations weigh in favour of an extension of time being granted.

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

[18] Mr Medancic indicated that he was not in a position to dispute his dismissal as his redundancy took effect the same day he was notified of the redundancy. At the time he was absent from work on sick leave (with a medical certificate). In the material filed by Mr Medancic he outlined the steps that he had taken in relation to a WorkCover WA claim that he had made during his employment with CBI.

[19] CBI made no submission on this factor.

[20] Based on the material before the Commission, it does not appear that Mr Medancic took any action to dispute his dismissal prior to lodging his general protections application. This weighs against granting an extension of time.

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

[21] Neither party made submissions in relation to this factor. Accordingly, I consider it to be a neutral consideration.

(e) The merits of the application

[22] In his application Mr Medancic stated that by not providing a period of notice CBI had breached the enterprise agreement under which he was employed. Further, Mr Medancic contended that the evidence attached to his application supported a finding that the employer had breached the agreement causing the redundancy to become null and void.

[23] According to CBI, Mr Medancic was made redundant at a time when legitimate redundancies were being carried out. In this context, CBI noted that Mr Medancic had submitted a non-compulsory voluntary redundancy form prior to his position being made redundant.

[24] The material provided to Mr Medancic on 24 October 2014 advising him of his redundancy includes an estimation of his termination pay. That estimation includes an amount in lieu of notice. Further, the material before the Commission indicates that it was Mr Medancic who expressed an interest in a voluntary redundancy. Taken together, and in the absence of material to support the contention that his dismissal was as a result of him raising a workplace health and safety concern, the merits of Mr Medancic’s application do not appear to be compelling. This weighs against the granting of an extension of time.

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

[25] Mr Medancic indicated that he was not in a position to comment on this as he perceived himself to be in the same position as any other individual in these circumstances. CBI did not make any submissions in this regard. I consider this factor to be a neutral consideration.

Conclusion

[26] Had Mr Medancic not encountered technical difficulties in electronically lodging his application, the prospect was that his application would have been lodged within the 21 day statutory timeframe - even though it would have literally been lodged at about five minutes to midnight. While no clear reason was provided as to why Mr Medancic left his run so late in seeking to lodge his application, the reality is that he did attempt to lodge his application within the statutory timeframe and most likely would have succeeded but for encountering factors beyond his control.

[27] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 3(Nulty) in the following way:

“[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.”

[28] In Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery 4 (Joy) Vice President Lawler granted an extension of time in circumstances where the applicant in that matter had encountered difficulties in submitting his application on-line, albeit the applicant in that case sought to do so a number of days before the statutory timeframe expired.

[29] Having considered all of the factors set out in s.366(2) and drawing on Nulty and Joy, I am on balance satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[30] The application will now be listed for conference in an attempt to settle the dispute.

 1   Attachment to Form F8A

 2   Ibid

 3 (2011) 203 IR 1

 4   [2010] FWA 1394

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