Jamie Patterson v One Key Resources Pty Ltd

[2020] FWC 3938

[2020] FWC 3938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Patterson
v
One Key Resources Pty Ltd
(U2020/7018)

COMMISSIONER SIMPSON BRISBANE, 29 JULY 2020

Application for an unfair dismissal remedy - Jurisdictional objection - Whether application was filed out of time

[1] Mr Jamie Patterson (the Applicant) has lodged an application for an unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (“the Act”) against One Key Resources Pty Ltd (the Respondent).

[2] The Applicant submitted in his Form F2 Unfair Dismissal Application that the effective date of dismissal was 18 March 2020. The application was lodged by the Applicant on 21 May 2020. It therefore appears that the application was lodged 43 days outside of the 21-day statutory timeframe to lodge an unfair dismissal application under the Act.

[3] It was noted by the Applicant in his Form F2 that his application was made out of time and provided the following reason in part 1.5 of his application:

“Was given the run around about who to go too. Was told to wait until the Qld government mines inspector did an investigation. Waited till workplace complaints returned my call. Then when I did find out about your office due to the corona virus it made it impossible to speak to someone in your office with reduced hours and everyone losing their jobs. And it couldn’t get in contact with the Fair Work Ombudman for the same reasons it isn’t normal times atm.” [original text kept]

[4] On 4 June 2020, the Chambers of Vice President Catanzariti sent the Applicant an email noting that it appeared his application was made out of time and advised that the Commission may only extend the time period for lodging an unfair dismissal application if it is satisfied that there were exceptional circumstances for not lodging the application on time. The Applicant was requested to provide the Vice President’s Chambers an explanation for why he considered his circumstances were exceptional and any supporting evidence by 5:00pm on 9 June 2020.

[5] A response was provided to the Vice President’s Chambers by the Applicant on 5 June 2020:

“Hi i will tell you what to say.It was not.under normal conditions first thing i needed to get the mines inspector involved to get to the bottom of things before i could lodge a claim with anyone.His reply was do not lodge a claim with anyone until he did a full investagation and informed me of the outcome so i had to wait after first contacting him and then waiting for him to do his investagation and inform me of the outcome.Secondly i was given the wrong information about who to contact the runaround i contacted workplace conplants and waited till they returned my call and they suggested that i contact fairwork commision.Due to the corona virus and your offices reduced hours and staff as there was alot of people also loosing their jobs i tried to contact your office by phone without success for advice first which was impossible to do not normal circumstances.And due to the amount of paperwork to be sent i decided to send it by mail to your gpo box now if your co worker wasnt nice enough to track it down it would still be sitting in your gpo box as i was an aware that you had shut alot of offices due to corona virus so these weren’t normal circumstances.Also i was informed that the mines inspector because it was a mine job i needed to go through him first once again not normal circumstances and delays.So these were not normal circumstances it was also impossible to get with touch with the fairwork ombudsmen due to the corona virus so things were beyond my control and i stepped through this situation while being under a huge amount of stress the best i could to gather all the correct information and being misinformed which is the reason why it took the time it did which was beyond my control i did the best i could at the time as it was difficult as i had to wait till to the qld gov mines inspector did his investagation and waited to hear the outcome there was alot to put together and with your offices being reduced hours and staff and other offices being closed contributed to this delay which was beyond my control i was told before i could proceed with any other claim yes the mines inspector first then i had to wait for the outcome of his investagation which industrial action was taken for not following the correct procedures yes in a perfect world it would have been nice if everything had come together in that time frame but unfortunately this wasnt the case” [original text kept]

[6] The matter was subsequently allocated to my Chambers to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.

[7] The Respondent filed and served a Form F3 – Employer response to unfair dismissal application on 3 July 2020 and raised two jurisdictional objections: the application is out of time (i.e. lodged more than 21 days after the dismissal took effect) and the Applicant was not dismissed.

[8] The Respondent submitted in part 2.2 of its Form F3 in relation to its out of time jurisdictional objection:

“10. The Respondent argues the Applicant’s contentions of the circumstances leading to his late lodgement would not satisfy the ‘exceptional circumstances’ test in Section 394(3) of the Act.

11. The Applicant’s claim he was told not to lodge a claim by the Mine’s Inspector is unsubstantiated. The Applicant provides two e-mails dated 12 and 19 March 2020 to a Mr Graham Callinan of the Department of Natural Resources, Mines and Energy. No response from Mr Callinan to either e-mail has been provided, nor any other evidence that Mr Callinan issued such advice.

12. Further the Applicant’s Contract of Employment [Attachment A] clearly states the terms and conditions set out in the FES Coal Pty Ltd Greenfield Agreement 2018 form part of his Contract of Employment. Clause 25 (Dispute/Grievance Procedure) of the FES Coal Pty Ltd Greenfield Agreement 2018 plainly states either party may refer an unresolved matter to the FWC for conciliation or arbitration. A copy of the FES Coal Pty Ltd Greenfield Agreement 2018 is attached [Attachment D].

13. The Applicant contends he was unable to contact the Fair Work Commission by phone to obtain advice due to a variety of factors. Notwithstanding the Applicant has provided no evidence to substantiate this claim, the FWC provide all the relevant advice and information required to lodge an unfair dismissal claim on their website. This information is available 24 hours a day, seven (7) days a week.

14. The Applicant’s reasoning behind his decision to lodge his application by post, causing further delay to lodgement is irrelevant in this situation. The FWC accepts applications by e-mail and electronic online lodgement, both options are instantaneous and accept attachments of additional material.”

[9] Directions were issued requiring the formal filing of material in relation to the out of time jurisdictional objection and an extension of time hearing was listed for 27 July 2020.

[10] The Applicant’s submissions were initially filed and served on 10 July 2020. However, the Applicant’s submissions did not go to the extension of time issue but rather the merits of the application. I subsequently provided the parties with a brief extension to file and serve their extension of time submissions. The Applicant filed and served his submissions on 14 July 2020 and provided further materials in relation to the merits and the extension of time objection on 24 July 2020. The Respondent filed and served its materials on 22 July 2020.

[11] At the hearing on 27 July 2020, the Applicant was self-represented and the Respondent was represented by Ms Bianca Taylor, Country HR Manager for the Respondent company. Both parties were content to rely on their written submissions and those put forward during the hearing.

[12] The Applicant submitted that the reasons for the delay in submitting his application were due to the following reasons:

1. He suffered anxiety and depression as a result of being hindered to try and seek medical treatment for his work-related injury.

2. Technical issues and his inability to lodge his application online.

3. The Mines Inspector made indications that he should not lodge an application whilst an investigation was ongoing.

4. The COVID-19 pandemic creating unusual circumstances and consequently experienced difficulties in speaking to the Fair Work Commission due to reduced working hours.

[13] In further submissions in relation to receiving medical treatment and his clearance to return to work on 30 January 2020, the Applicant maintained that he was told by the Mining Superintendent not to see a doctor on 24 January 2020 but saw an onsite physiotherapist six days later.

[14] Further clarification was made by the Applicant in relation to his difficulties in speaking with the Fair Work Commission due to reduced working hours. The Applicant submitted that he wished to seek advice on the matter given that he had never been in this position before and encountered difficulties in obtaining the correct information on how to lodge a claim as it “was a maze”. The Applicant said that he contacted the Fair Work Ombudsman within the 21-day timeframe, but it took them approximately a week and a half to return his phone call.

[15] In response to the Respondent’s written submission that the Australia Post tracking of the mailed application form stated the application was received 40 days outside of the 21-day timeframe, the Applicant submitted that he went online to lodge his application but noted there were numerous documents to be filed and elected to mail the documents to the Commission’s GPO box instead. It was the Applicant’s further submission that he was unable to file his application using the Commission website because he had to “go through the maze” of how to lodge an application and wanted advice on how to do it first.

[16] The Respondent only added by way of oral submission during the proceeding that the Applicant’s arguments do not satisfy exceptional circumstances under the Act -- most people who find themselves in a similar situation as the Applicant have never been in the position that they needed to make an application with the Commission yet the majority are able to lodge an application on time.

Legislation

[17] Section 394 of the Act provides:

“(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 exertional 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;

(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.

[18] Section 386 of the Act sets out when a person has been dismissed from their employment and states:

“386 Meaning of dismissed

(1) 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.”

Consideration

Section 394(3)(a) – Reason for Delay

[19] I have considered each of the Applicant’s reasons given for the delay in filing his application outside the statutory time frame. None of those reasons are exceptional. His submission that his termination caused him to be stressed and depressed was general in nature and not supported by any medical evidence. His claim that he had technical issues and difficulty obtaining advice was also general in nature. As was submitted by the Respondent, all the information required to file an unfair dismissal claim is available on the Commission website. His submission that a Queensland Mines Inspector discouraged him from lodging an unfair dismissal application whilst a safety issue was being investigated was also not supported by any evidence. In the circumstances I am not inclined to accept the claim however in any event it was the Applicant’s responsibility to take sufficient interest in his own application to be cognisant of the timeframe for filing. I also do not accept the general claim that his application was delayed because he had difficulty speaking to Commission staff to get advice about his claim. The application was filed over forty days out of time.

[20] Contrary to the Applicant’s submission, the COVID-19 Pandemic has not interfered with the operations of the Commission to such an extent that he would have been unable to contact Commission staff for such an extended period. Further the Commission website provides relevant information in order to file a claim. The reasons given for such a lengthy delay in filing do not favour extending time.

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[21] A dispute was foreshadowed by the Respondent as to whether its correspondence of 18 March amounted to a dismissal. For the purpose of dealing with the matter efficiently, I decided it was not necessary to determine this question. If it were to be the case that the Respondent’s argument that the correspondence of 18 March did not amount to a dismissal was ultimately accepted, then the application would be out of jurisdiction in any event.

[22] However, for the purposes of the extension of time question, if the Applicant’s contention that the letter of 18 March terminated his employment was to be accepted, then the applicant became aware of his asserted dismissal on receipt of the letter. This tells against extending time.

Section 394(3)(c) – any action taken by the person to dispute the dismissal

[23] The Applicant entered into correspondence raising issues in relation the incident of 14 February before his dismissal. This could not be said to be action taken to dispute the dismissal. He also corresponded with the Mines Inspector on 19 March. There is no other clear evidence to support the Applicant contesting the dismissal in the relevant time period. This tells against extending time.

Section 394(3)(d) – Prejudice to the employer

[24] Whilst there would be some prejudice suffered by the Respondent given the length of delay in filing the application, the delay was not so lengthy to cause significant prejudice and I intend to treat this as a neutral consideration.

Section 394(3)(e) – The merits of the application

[25] Given there are matters of fact in dispute it would be inappropriate to give further consideration to the merits of the matter and I will treat it as a neutral matter.

Section 394(3)(f) – Fairness as between the person and other persons in a similar

Position

[26] There was no submission relevant to this consideration and I will treat it as a neutral matter.

Conclusion

[27] Having considered each of the relevant considerations in section 394(3) I am not satisfied that there are exceptional circumstances in this case warranting an extension of time. On that basis the application is dismissed.

COMMISSIONER

Appearances:

J. Patterson, on his own behalf.
B Taylor, Country HR Manager, for One Key Resources Pty Ltd.

Hearing details:

2020.
Brisbane (by telephone):
27 July.

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