Ian Bowman v Civil Mining Construction & Engineering Pty Ltd
[2023] FWC 1904
•7 AUGUST 2023
| [2023] FWC 1904 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ian Bowman
v
Civil Mining Construction & Engineering Pty Ltd
(C2023/2861)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 7 AUGUST 2023 |
Application to deal with contraventions involving dismissal – late lodgement – legal advice – latent description of alleged conduct as “serious and wilful misconduct” – no exceptional circumstances – application dismissed
On 18 May 2023 Ian Bowman (Mr Bowman or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with his dismissal.
Mr Bowman’s application is against his former employer Civil Mining Construction & Engineering Pty Ltd (Civil Mining, the respondent or the employer), which he alleges committed the contraventions.
The respondent opposes the application. It filed a response on 15 June 2023 raising a jurisdictional issue. It claims that the application is out of time and that time should not be extended.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the out of time issue if Mr Bowman’s application is to proceed.
I issued directions on 28 June 2023.
I heard the out of time issue on 1 August 2023.
Permission was granted under s 596 of the FW Act for both parties to be represented.
Evidence was received from Mr Bowman.[2] Civil Mining adduced evidence from three persons Ben Mesecke (Operations Manager),[3] Leanne Hull (Human Resources and Housing Officer)[4] and Alexander Kelman (Superintendent).[5]
The facts relevant to the extension of time issue are largely not in dispute.
Facts
Civil Mining conducts civil mining and construction operations including at Roxby Downs in South Australia.
Mr Bowman commenced employment as a casual operator on 19 July 2022.
He suffered a work injury on 3 August 2022.
Mr Bowman was placed on a return to work plan which involved performance of light or modified duties. At the time of dismissal Mr Bowman was not on sick leave but employed on light duties.
On 13 December 2022 Ms Hull delivered Christmas gifts to the company operated accommodation Mr Bowman was living at. Upon speaking to Mr Bowman she observed Mr Bowman speaking erratically and another employee on the premises with a ‘bong’ used for consuming marijuana.
Ms Hull reported her observations the next morning to Mr Mesecke.
Mr Mesecke spoke to Mr Kelman. They met with Mr Bowman. Mr Bowman was directed to undertake a drug and alcohol test. Mr Bowman declined as he was concerned there may be traces of cannabis in his system.[6]
Upon leaving the meeting Mr Bowman returned to his light duties. Mr Mesecke instructed Ms Hull to draft a termination letter. Ms Hull did so. Mr Mesecke approved the draft letter. It was signed by the General Manager.
Later that morning Mr Bowman met again with the company officers. He offered to resign. Mr Mesecke told him that he was terminated and gave him the termination letter dated 14 December 2022. Relevantly, it read:[7]
“On Wednesday 14 December 2022 you attended a closed door conversation with Superintendent Alex Kelman and Operations Manager Ben Mesecke. In the conversation they requested that you to attend a Drug and Alcohol Analysis appointment at the local doctors. You refused the appointment and you admitted to smoking Marijuana as a joint yesterday, and at times in the previous weeks.
Your refusal to undertake the Drug and Alcohol analysis, and due to your admission of breaching the Company Drug and Alcohol Policy, has resulted in the company terminating of your employment effective immediately.”
Mr Bowman’s final entitlements were paid on 15 December 2022.
Mr Bowman did not seek legal or industrial advice following the dismissal.
In May 2023 Mr Bowman sought legal advice from Paul Crawford Law on an unrelated matter.
Mr Crawford advised Mr Bowman that he did not have grounds to prosecute an unfair dismissal claim but had grounds to prosecute a general protections claim but that an extension of time would be required. Mr Bowman instructed that a general protections claim be commenced.
On 18 May 2023 Mr Crawford, on behalf of Mr Bowman, filed these proceedings (by application dated 17 May 2023).
On 22 June 2023 Mr Crawford in the course of corresponding with the respondent on the matter, received a letter from the respondent of that date. Relevantly it read:[8]
“Your client was terminated for serious and wilful misconduct on 14 December 2022, relating to consuming drugs prior to work at our accommodation and failing to submit to drug testing.
In the circumstances, it is not reasonably practicable for us to provide your client with suitable employment. We decline to do so.”
Mr Bowman’s application under s 365 of the FW Act (general protections application involving dismissal) alleges that adverse action (dismissal) was unlawfully taken against him for having exercised workplace rights, being a right to sick leave and a right to not be discriminated on the ground of physical disability.
Submissions
Mr Bowman
Mr Bowman submits that an extension of time should be granted because:
The true reason or the true seriousness of the reason why Mr Bowman was dismissed was not revealed by the employer until 22 June 2023 when it advised by correspondence that he had been dismissed “for serious and wilful misconduct”. This was nearly six months after dismissal and caused delay in the obtaining of advice and filing of the application;
Mr Bowman was taking prescription medication following the workplace injury and this impacted his cognitive capacity;
Mr Bowman has an arguable case on merit and unless time is extended he will be precluded from having his ‘day in court’; and
There is no prejudice to the employer should an extension be granted.
Civil Mining
Civil Mining submit that the application is out of time and that time should not be extended because the circumstances are not exceptional.
Civil Mining submit that Mr Bowman was notified of the dismissal and notified of the reason for dismissal at the time of dismissal. As such he was armed with the necessary information on which he could have taken advice. He failed to do so. The descriptor “serious and wilful misconduct” used in the letter of 22 June 2023 was simply a re-statement of the reasons given at the time of dismissal. Breach of the employer’s drug and alcohol policy is self-evidently serious as it applies a zero tolerance policy, and Mr Bowman was dismissed without notice despite offering to resign.
The employer submits that it neither knew of any cognitive impairment nor is there any evidence of a medical condition relevantly impairing cognitive capacity that explains the delay.
Mr Bowman’s case on merit is weak.
Prejudice to the employer arises from the fact that Mr Bowman is seeking, amongst other remedies, reinstatement, in circumstances where the employer has filled Mr Bowman’s position with a replacement employee.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a)a person has been dismissed; and
(b)the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 366 provides a time limit for the filing applications:
“366 Time for application
(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).
(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.”
Mr Bowman’s application is out of time. As Mr Bowman’s dismissal took immediate effect on 14 December 2022, the application is one hundred and thirty-three days out of time. The delay period is the period between 5 January 2023 and 18 May 2023 (inclusive). The application can only proceed if Mr Bowman establishes “exceptional circumstances” within the meaning of s 366(2).
I now consider whether an extension of time should be granted for the late lodgement.
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[9]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[10] A decision whether to extend time under s 366(2) involves the exercise of a discretion.[11]
I apply s 366(2) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[12]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[13]
I now consider each of the factors in s 366(2).
Reason for delay (s 366(2)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[14] The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.[15]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[16] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[17]
The primary reason advanced by Mr Bowman for the delay is that the true reason or the true seriousness of the reason why Mr Bowman was dismissed was not revealed by the employer until 22 June 2023 when it advised by correspondence to his solicitor that he had been dismissed “for serious and wilful misconduct”.
It is correct to observe that the employer did not in the dismissal letter of 14 December 2022 or in the meetings on 14 December 2022 use the specific phrase “serious and wilful misconduct”, and that this phrase was not known to Mr Bowman until the letter of 22 June 2023.
However, for two reasons this does not reasonably explain the delay.
Firstly, Mr Bowman was notified of the dismissal and notified of the reason for dismissal at the time of dismissal. The dismissal letter expressly referred to a refusal to take a Drug and Alcohol Analysis as directed, and to admitting to smoking Marijuana. It stated that this conduct “breached the Company Drug and Alcohol Policy”. It notified that dismissal was “effective immediately”.
Given this, Mr Bowman was on clear notice at the time of dismissal as to why he had been dismissed. Objectively considered, including the fact that he was dismissed without notice and not permitted to resign once he declined the drug test, Mr Bowman was on notice that the company considered his conduct to be misconduct and that it was serious. There is no sense in which the fact that the descriptor “serious and wilful misconduct” being first used by the employer on 22 June 2023 can reasonably be said to have precluded Mr Bowman from taking advice on his dismissal or being advised on his prospects in the five months from December 2022 to May 2023.
Secondly, the relevant chronology of events does not support the contention. Mr Bowman was provided legal advice in May 2023. Mr Bowman instructed the filing of his application on or about 16 May 2023. Mr Bowman’s general protections application was filed on 18 May 2023. Each of these events occurred more than a month before Mr Bowman (through his solicitors) was aware of the “serious and wilful misconduct” descriptor used in the employer’s letter of 22 June 2023. There is no basis on which knowledge of that descriptor, no matter how belatedly expressed by the employer, caused a delay in making the application. It simply did not do so.
Mr Bowman in his evidence and written submissions also explains the delay on account of taking prescription medication following the workplace injury and the impact this had on his cognitive capacity.
It is well established that an applicant for an extension of time relying on a health or medical condition to explain the delay has an obligation to adduce evidence establishing the nature of the health condition and that it materially impacted their capacity to make an in-time application.
No medical or pharmacological evidence was called by Mr Bowman on the nature of any cognitive impairment let alone an impairment that relevantly precluded the taking of advice or the making of an in-time application or making the application at an earlier date than when it was made.
That being so, it is not open to make the findings sought by Mr Bowman as to relevant cognitive impairment.
Considered overall, the explanations for the delay do not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute dismissal (s 366(2)(b))
Mr Bowman took no action to obtain legal or industrial advice until five months after dismissal, and then it was advice sought on an unrelated matter. Only as a consequence of Mr Crawford’s diligence to his interests was he advised on his dismissal rights.
The lack of timely action taken by Mr Bowman does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s 366(2)(c))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[18]
If time is extended, a claim would have to be further responded to by the employer, involving time and cost. However, that prejudice, whilst real, is not unique.
Whilst I take into account that the employer has filled Mr Bowman’s former role with another casual employee, this contention by the employer is, at its highest, relevant only to remedy (and not liability) and in any event reinstatement is only one of alternate remedies sought by Mr Bowman. Hence this contention adds little in the way of relevant prejudice.
This notwithstanding, the absence of prejudice would not of itself be a reason to grant an extension.[19]
This is a neutral consideration.
Merits of the application (s 366(2)(d))
A hearing would concern whether the employer dismissed Mr Bowman for an unlawful reason.
Noting the reverse onus of proof in the FW Act, it is premature to express a firm view on that question. However, my provisional view is that Mr Bowman’s case on merit is not strong. On the evidence before me, the employer has some reasonable prospects of establishing that it did not dismiss for an unlawful reason notwithstanding the reverse onus of proof.
This notwithstanding, the issues have not been fully tested and, as Mr Crawford noted at the hearing, further evidence of a documentary and oral nature would need to be adduced.
That being so, this is a neutral consideration.
Fairness between persons in similar position (s 366(2)(e))
In this matter, this is not a relevant factor.
Conclusion
The period of delay being one hundred and thirty-three days, in the context of a statutory twenty-one day time frame, is significant.
The explanations for the delay do not weigh in favour of a finding of exceptional circumstances. The inaction by Mr Bowman over a five month period also weighs against such a finding. The lengthy delay is not reasonably explained. Despite Mr Crawford’s best endeavours, the descriptor used by the employer in June 2023 of “serious and wilful misconduct” did not alter the dynamic or “true position”[20] of the dismissal and is not an exceptional circumstance. No exceptional circumstances exist.
There being no exceptional circumstances, the time for late lodgement cannot be extended.
As time for late lodgement has not been extended, application C2023/2861 is unable to proceed. It must be dismissed.
An order giving effect to this decision will be issued in conjunction with its publication.[21]
DEPUTY PRESIDENT
Appearances:
Mr P Crawford with permission on behalf of Mr Bowman
Mr N Marciono with permission on behalf of Civil Mining Construction & Engineering Pty Ltd with Ms P Mahecha and Mr C Oldfield of Civil Mining Construction & Engineering Pty Ltd
Hearing details:
Adelaide (by video)
August 1
[1] [2020] FCAFC 152
[2] A1
[3] R2
[4] R3
[5] R1
[6] A1 paragraph 26
[7] A1 IB1
[8] A1 IB2
[9] Smith v Canning Division of General Practice[2009] AIRC 959
[10] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[11] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[12] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[13] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[14] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[16] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[17] 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; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[18] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[20] A phrase used by Mr Crawford in his closing submission
[21] PR764809
Printed by authority of the Commonwealth Government Printer
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