Frank Enkuzis v Luna Mines Services
[2022] FWC 1949
•22 JULY 2022
| [2022] FWC 1949 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Frank Enkuzis
v
Luna Mines Services
(U2022/3937)
| DEPUTY PRESIDENT LAKE | BRISBANE, 22 JULY 2022 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Mr Frank Enkuzis (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to a claimed forced resignation of his employment by Luna Mines Services (the Respondent).
The Applicant began his employment on 5 May 2016. It is uncontentious that he resigned from his role on 23 February 2022. His application was lodged with the Commission on 4 April 2022, 19 days out of time. The two questions are: if the resignation amounted to a constructive dismissal and if the application was filed out of time?
Representation
The Respondent sought to be represented at the hearing, which was not opposed by the Applicant. Still, I was required to consider whether to granting permission pursuant to s.596 of the Act.[1] The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3] Given the complexity of the matter and in the interests of dealing with it as effectively and efficiently as possible, I am satisfied that it was appropriate to grant the Respondent permission to be represented. Accordingly, Mr Paul McCrea from Engaging Management Pty Ltd represented the Respondent at the hearing. The Applicant was assisted by his sister, Ms Nadia Lodge.
Background
Mr Enkuzis was employed by the Respondent to provide labour hire services as an underground mineworker at the BHP Mitsubishi Alliance (BMA) Broadmeadow Mine in Central Queensland. On 7 October 2021, BHP announced a new condition for entry to Queensland coal mines and related sites operated by, or related to, the BHP Group of Companies. This condition applied to the Broadmeadow Mine.
The condition was that by 31 January 2022, to enter a BHP related work site, employees must have:
· been fully vaccinated against COVID-19; and
· provided evidence of their vaccination status, including the type of vaccination and the date received (the Site Access Requirement).
The Site Access Requirement was the subject of proceedings in the Commission and ultimately the Site Access Requirement was determined to be a lawful and reasonable direction.
The Applicant returned from approved annual leave on 17 February 2022. However, he was not vaccinated. The Respondent offered an alternative role at a mine without the requirements for vaccination to which the Applicant rejected. With no other alternative role available, the Applicant freely chose to resign as he could not work at his original role due to the vaccination requirements. The Applicant resigned on 23 February 2022 and made an application for Unfair Dismissal on 4 April 2022, this was 19 days late.
There are two matters to determine, whether the Applicant was dismissed and whether to grant an extension for his application.
Was the application lodged within time?
Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.
The Applicant lodged his application on 4 April 2022. The Applicant contends that his application was not made some 19 outside of the 21 days required under s.394(2) of the Act. The Applicant asserts that the dismissal occurred on 29 March 2022.
The Respondent opposes the Applicant’s assertion and the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.
The Applicant’s submissions
The Applicant asserts that the date dismissal took effect was 29 March 2022 as this was the date the Applicant was made aware that he was not going back to work in his previous role.
He believed that despite tendering his resignation, he was guaranteed a job after becoming fully vaccinated. Mr Austin informed the Applicant that he was “on the manning list” and his “position is still available in ventilation.” The Applicant continued to communicate with the Respondent until 14 March 2022. The Applicant states that miscommunication resulted in the lateness of his application.
The Respondent’s submissions
The Respondent asserts that the Applicant resigned on 23 February 2022 and this is the date that should be taken.
The Respondent does not contend that Mr Austin communicated with the Applicant after the date of resignation regarding work in the future. However, the Respondent contends that there was never a guarantee of work for the Applicant to return to. Mr Austin during cross-examination confirmed that he advised the Applicant that he could reapply for work once the Applicant was vaccinated as all onboarding requires approval of BHP and he was not in a position to guarantee work.
Consideration of whether a further period should be granted
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[4] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[5] the Full Bench of Fair Work Australia stated that:
“[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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 394(3) of the Act.
I specifically asked each party to address each of the factors set out in s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[6] or a reasonable explanation.[7] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[8] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[9]
On the facts, I find that the date taken for dismissal or resignation is 23 February 2022. The Applicant was aware of the effect of tendering his resignation. He resigned for benefit, having his personal leave paid out and to keep his work history free of any dismissals. Further, it is not exceptional in the labour hire industry that individuals would have a subjective view that they will be hired back at a future date. No promises were made to him regarding a return to his role. However, he departed on good terms which left the path open in the future if he were vaccinated or wished to return that the Respondent would certainly consider his application positively.
The Applicant did not offer any matters or circumstances that I would consider as exceptional. He claimed he was promised a job on his return and did not file the application until he discovered that the role did not eventuate. I find this to be a false assertion. The Respondent did advise that he could reapply for work again but made no representations regarding a guarantee of work.[10]
I do not find that any of the reasons put forward by the Applicant qualify as “exceptional” and therefore I weight this factor against an extension.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant resigned on 23 February 2022 and was unaware that he was not to continue working until 29 March 2022. This consideration therefore does not weigh in favour of an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not contest the dismissal generally with the Respondent.
This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[11] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[12] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission “should not embark on a detailed consideration of the substantive case.”[13]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[14]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Was the Applicant dismissed?
Section 386(1) of the Act relevantly provides that a person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s employment to be terminated at the initiative of the employer.[15] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[16] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[17] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[18] Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?[19]
It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.[20] All the circumstances – including the conduct of both the employer and employee – must be examined.[21] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”[22]
The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred.[23] Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”[24]
The Applicant resigned on 23 February 2022 in an email to Mr Austin, the Applicant’s manager at Broadmeadow Mine. The email indicated he resigned on this date. The Applicant claims that Mr Austin and others at the mine site informed the Applicant that if he resigned then he would have his accrued personal leave paid (this was not the case if he were dismissed) and keep his employment record “clean”.
The Respondent had tried to find an alternative role to assist the Applicant as he was not vaccinated, as this offer was refused then the employer had no opportunity to continue the Applicant’s employment. The Respondent advised the Applicant of his statutory entitlements and that in the case of resignation he would have an added benefit by having his personal leave paid out. The Applicant freely chose to resign as he would personally benefit, and he had a strong desire to have an employment record that did not have a dismissal recorded on it. The industry the Applicant works in, underground coal mining, is relatively small and highly networked and thus a clean employment record is of value, particularly as a labour hire worker.
There is no evidence that the Applicant was forced or pushed out by the Respondent, he freely chose not to be vaccinated in time for the implementation at Broadmeadow Mine, (a BHP site) and put his employment in peril. The Respondent offered another location which the Applicant refused. The Applicant then elected to resign to access his personal leave which is not paid out in a dismissal. He thought he had a good chance of re-employment later as he had a good reputation and strong connections with his employer.
I find that the Applicant resigned on 23 February 2022 and it was not a result of conduct of the Respondent. He was not dismissed as he chose to resign.
Conclusion
Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter and I do not exercise my discretion to allow for this application to be made out of time. Furthermore, the Applicant was not dismissed. I am satisfied that he elected to resign, and the Respondent did not follow a course of conduct to force or cause the Applicant to tender his resignation.
I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19], (3).
[3] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268, [48].
[4] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901, [14].
[5] [2019] FWC 25.
[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[7] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[8] [2018] FWCFB 901.
[9] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]–[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[10] Luna Mine Services, ‘Statement of Antony Austin’, Submission in Frank Enkuzis v Luna Mine Services, U2022/3937, 1 June 2022, [8].
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[12] (1997) 140 IR 1 per Ross VP, Watson SDP and Gay C.
[13] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[14] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
[15] [2017] FWCFB 3941.
[16] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.
[17] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496; Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[18] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].
[19] O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 [23].
[20] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[21] Whirisky v DivaT Home Care [2021] FWC 650 at [77].
[22] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941, [28].
[23] Australian Hearing v Peary [2009] AIRCFB 680 [30]; Cottaghe v South Pacific Restaurant Unit Trust T/A House of Brews[2019] FWC 1539 [109].
[24] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
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