Frank Enkuzis v Luna Mines Services - [2022] FWC 1949

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 1949
Decision Date: 22 JULY 2022

CaseChat Overview and Summary

Frank Enkuzis filed an application with the Fair Work Commission (FWC) for an unfair dismissal remedy under the Fair Work Act 2009, claiming that his resignation was forced by Luna Mines Services (the employer). The employer argued that the application was made outside of the statutory timeframe and that the resignation was voluntary. The court had to determine whether the application was filed within the required time and whether the applicant was dismissed.

The FWC considered the reasons for the delay, whether the applicant was aware of the dismissal, the actions taken to dispute the dismissal, any prejudice to the employer, the merits of the application, and fairness as between the applicant and other persons in a similar position. The FWC found that the applicant did not provide exceptional circumstances to warrant an extension of time and dismissed the application. Furthermore, the court found that the applicant was not dismissed, as he voluntarily resigned due to the employer's vaccination requirement and the refusal of an alternative role.

In conclusion, the FWC dismissed the application for unfair dismissal as it was filed outside of the statutory timeframe and found that the applicant was not dismissed by the employer. The court ruled that the applicant voluntarily resigned due to the employer's vaccination requirement and the refusal of an alternative role.

Orders