James Gray v Macmahon Mining Services Pty Ltd

[2013] FWC 9118

[2013] FWC 9118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Gray
v
Macmahon Mining Services Pty Ltd
(U2013/12440)

COMMISSIONER WILLIAMS PERTH, 21 NOVEMBER 2013

Termination of employment - extension of time.

[1] This matter involves an application made by Mr James Gray (Mr Gray or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Macmahon Mining Services Pty Ltd (Macmahon or the respondent).

[2] Mr Gray’s application indicates that he was dismissed on 2 July 2013 and the dismissal took effect on this day. This application was made on 12 August 2013.

[3] The respondent objects to this application on the grounds that it was made more than 21 days after Mr Gray was dismissed.

[4] Section 394 of the Act specifies the time in which applications must be made. This is set out below:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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 similar position.”

[5] Section 394 also provides that the Commission may allow a further period for an application to be made where there are exceptional circumstances.

[6] Consequently I requested the parties provide written submissions and any supporting material they wished on the question of whether the Commission should extend the time for Mr Gray to make this application. Both parties have provided written submissions on this point.

Consideration

The reason for the delay

[7] The submission made on behalf of Mr Gray by his wife explains that:

“James was not physically or mentally capable of lodging or even comprehending the notion of taking any form of action. As soon as I, Sheena-Gray: wife, felt he was able to understand the matter I took the necessary steps on his behalf to lodge a complaint.

James is suffering from an acute form of post-traumatic stress disorder, panic and anxiety disorder. It is only recently he has started to show signs of improvement and responding to medication and treatments.

Find enclosed the many medical certificates stating his condition and the severity. I hope this helps in explaining why the time lapse occurred in complaint lodgement.”

[8] The various materials provided on behalf of Mr Gray include a number of medical certificates and other documentation from health professionals who have treated Mr Gray.

[9] In summary the medical certificates do satisfy me that from 19 January 2013 onwards Mr Gray has been unfit to work. The description and diagnosis of Mr Gray’s condition is variously described as “Bipolar disorder. Panic disorder.”, “Post traumatic stress disorder. Anxiety disorder.” and “Post traumatic disorder, anxiety. Social phobia.”

[10] The description of Mr Gray’s symptoms and/or progress is variously described as “Panic and depressed, needs ongoing psychological counselling and medication treatment.” and “Extremely agitated; and unable to keep calm. Avoids social contact and always indoor.”

[11] A letter dated 17 June 2013 to Mr Gray’s general practitioner at the Northern Hospital written by a consultant psychiatrist explains that having that day reviewed Mr Gray he was found to be suffering side effects from his medication such as dizziness, fainting, nausea and vomiting and his sleep of one to two hours had been broken. The psychiatrist recommended a change to Mr Gray’s medication but notes this may not necessarily improve his sleep and may in fact make it worse but may help with his anxiety. The psychiatrist noted that Mr Gray’s stuttering was quite marked and he was agitated and scratching himself in the process. The psychiatrist suggested that Mr Gray may need to see his private clinical psychologist more frequently than fortnightly.

[12] I note this information from the consultant psychiatrist was from a consultation with Mr Gray held two weeks before his dismissal.

[13] A document headed GP Mental Health Care Review, dated 15 July 2013 undertaken by Dr Yan Zhang records the diagnosis as explained above and that Mr Gray was undergoing cognitive behaviour therapy and psychologist counselling. The review stated that Mr Gray would require six further sessions which the document identifies as being the maximum further sessions that may be recorded.

[14] I note that this mental health care review was undertaken 13 days after Mr Gray had been dismissed.

[15] The respondent was provided with a copy of these materials and has not taken issue with their contents.

[16] Considering the above information I am satisfied that the applicant has for many months prior to his dismissal and for the period after his dismissal up to the time this application was made been suffering from a serious mental illness.

[17] The applicant has provided sufficient supporting medical information to satisfy me that I should accept the submission that between the date of dismissal and up to the time this application was made Mr Gray because of his mental illness was not able to take the necessary steps to make this application.

[18] I am satisfied that there is an acceptable reason for all of the delay in making this application.

Whether the person first became aware of the dismissal after it had taken effect

[19] The respondent wrote a letter to the applicant advising him of his dismissal at the time it occurred.

Action taken by the person to dispute the dismissal

[20] The applicant did not take any other action beyond the making of this application to dispute his dismissal.

Prejudice to the employer

[21] The application was made approximately 20 days after the statutory time limit required and in the circumstances this does not pose a significant prejudice to the employer.

The merits of the application

[22] Mr Gray’s application says the dismissal was unfair because:

“(1) The reason given was false. Did not need to fill his position because the company was terminating 80 positions.

(2) Believe he was not given the correct entitlements. Should have received same entitlements as the other terminations.”

[23] The applicant has not made any further submissions regarding the merit of his application.

[24] The respondent’s submissions state that Mr Gray had worked for the respondent from 2012 until 21 January 2013. By 27 February 2013 Mr Gray had exhausted his sick leave and annual leave accruals and then was absent on approved leave without pay.

[25] The respondent’s representatives spoke to Mr Gray’s wife on 2 July 2013 as they had not received any update on his condition or when he would be able to return to work. Mrs Gray advised that Mr Gray was unable to talk to the respondent due to his condition and as a result all verbal communication was with Mrs Gray.

[26] The respondent informed Mrs Gray that it had been nearly six months since Mr Gray last attended work. She was unable to provide the respondent with an approximate return to work date. It was communicated to Mrs Gray that it was the respondent’s intention to terminate Mr Gray’s employment due to frustration of contract. Mrs Gray understood what the respondent said and did not raise any issues with the respondent about progressing with the termination.

[27] The termination letter dated 2 July 2013 explains the above situation and says as follows:

“As per the previous phone conversations with yourself and your wife, you have been unable to confirm a definite day to return to work or when you will be cleared by your treating medical practitioner. It has now been over five months since you last attended work and we have no other options but to terminate your employment due to business requirements, as well as your inability to fulfil inherent requirements of your role as a bogger operator at Argyle Underground project.

It is with regret we inform you that your contract of employment has been frustrated, effective from the 2 July 2013. As per the termination provisions of your contract of employment, you will receive two weeks payment in lieu of notice, plus any accrued and unused annual leave entitlements.”

[28] The respondent has interpreted the reference in the application to the applicant not receiving the same entitlements as other terminations as a reference to the fact that the applicant made a significant number of positions redundant in mid July 2013 and the applicant apparently believes he should also have received payment similar to these redundant employees.

[29] The respondent’s submission is that at the time of Mr Gray’s termination, 2 July 2013, the respondent was not aware that redundancies were going to take place at the Argyle mine.

[30] The respondent submits that on 11 July 2013 Macmahon’s client Rio Tinto instructed them to reduce their workforce resulting in approximately 70 redundancies effective on 19 July 2013. The respondent has attached correspondence from Rio Tinto to this effect which is dated 19 July 2013. This letter refers to discussions and email correspondence regarding these developments between Rio Tinto and Macmahon that occurred between 11 and 15 July 2013 and with some reference to a revised responsibility matrix dated 5 July 2013.

[31] Absent evidence to the contrary these facts are a complete answer to this application.

[32] It is submitted by the respondent that Mr Gray was not made redundant and not entitled to any consequential severance payments simply because his dismissal occurred before the respondent took any decision to reduce its workforce at the Argyle mine.

[33] Considering then the merits of this application there obviously was good reason for the respondent to dismiss Mr Gray because unfortunately he had not been able to attend for work for many months due to his ill-health. At the time of dismissal he was not able to tell the respondent when he was likely to be well enough to resume work and there was no reason to believe that this was likely to be in the foreseeable future. The applicant’s submissions demonstrate that his health problems persisted well past his dismissal date.

[34] The applicant apparently believes he should have been made redundant, as other employees were some time after he was dismissed. The onus is on the applicant to satisfy the Commission that an extension of time to make an application should be granted and no evidence or submission supporting the applicant’s substantive application was provided. An argument that he should have received similar entitlements to employees who were later made redundant will not succeed without evidence the respondent knew redundancies were to be required at the time Mr Gray was dismissed and that his dismissal was really acted on then to avoid later making him redundant and paying severance payments. There is nothing to suggest the applicant has evidence this was the case.

[35] Whilst the Commission can appreciate Mr Gray was in a very difficult situation because of his ill-health the fact that shortly after he was dismissed other employees were made redundant does not entitle Mr Gray to the same benefits that those redundant employees received. Mr Gray was not made redundant he was dismissed because he was not able to return to work to do his job.

[36] In my view there is little merit in Mr Gray’s unfair dismissal application.

Fairness as between the person and other persons in a similar position

[37] This is not a relevant consideration in this matter.

Conclusion

[38] Whilst as I have found in this case there was an acceptable reason for Mr Gray making this application after the statutory time limit had passed there is in my view little merit in the substantive unfair dismissal application. The applicant has not provided anything of substance to demonstrate the substantive application has merit whilst the respondent has put material to the Commission that demonstrates the substantive application has no basis. There are no other factors that weigh in favour of concluding there are exceptional circumstances in this matter. In the absence of exceptional circumstances the Commission is not able to grant an extension of time. Granting an extension of time and so allowing this application to proceed further would on the materials before me be futile for Mr Gray.

[39] The applicant has not discharged the onus to demonstrate that there are exceptional circumstances that warrant an extension of time. This application has not been made within time and so I will issue an order in conjunction with this decision dismissing the application.

COMMISSIONER

Final written submissions:

Applicant, 24 September 2013

Respondent, 9 October 2013

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