Jane Yates v Dampier Salt Ltd T/A Rio Tinto Dampier Salt Ltd

[2015] FWC 1501

[2015] FWC 1501

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jane Yates
v
Dampier Salt Ltd T/A Rio Tinto Dampier Salt Ltd
(U2015/410)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Jane Yates alleged that the termination of her employment by Dampier Salt Ltd on 25 November 2014 was unfair.

[2] Her unfair dismissal application lodged on 31 January 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Are there exceptional circumstances?

(a) the reason for the delay;

[4] Ms Yates submitted that she did not make her application within 21 days as she was not aware that her redundancy was not genuine until 24 January 2015, when she found out that untrained employees were doing work that she had previously done. Whilst Ms Yates had been employed as an operator, she submitted that her job was to operate haul trucks. She submitted that Dampier Salt were offering four times the number of extra shifts to operators and that she could have performed these shifts.

[5] Ms Yates submitted that Dampier Salt could have abandoned its hot seating roster as a way of maintaining more jobs.

[6] Apart from her own evidence, Ms Yates called no evidence to support these assertions.

[7] Mr Peter Cook, the HR Manager, gave evidence that there had been a reduction in the amount of salt produced at the Dampier site. He gave evidence that in addition to lower production levels, salt was being sold at a lower price.

[8] It was his evidence that Dampier Salt went through a cost reduction process and that as a result, 45 roles were removed from the business, including 12 production positions at Dampier.

[9] Mr Cook gave evidence that the number of additional shifts performed in December 2014 was only three more than the same time the previous year.

[10] Mr Cook accepted that two non production employees had operated trucks since Ms Yates was dismissed. One had done three extra shifts and the other two extra shifts as they were covering for people on leave.

[11] Mr Cook explained that Dampier Salt could not have abandoned its hot seating roster as this would have increased unit labour costs and reduced productivity.

[12] At the hearing, Ms Yates also called into question whether Dampier Salt had complied with its obligations to consult and submitted that she could have been redeployed.

[13] If Ms Yates did consider that Dampier Salt had not complied with its obligation to consult or redeploy, then those are matters which were known to her at the time of her dismissal. They were not matters which Ms Yates only found out about on 24 January 2015. To the extent she relies on these matters, she has no reasonable explanation for the delay.

[14] Ms Yates did not at the time challenge the reasons given by Dampier Salt for the need to reduce the number of employees. At the hearing Ms Yates suggested that the reduction in the quantity of salt did not warrant the reduction in head count. There is no evidence that the explanation for the need to reduce head count has changed since the redundancies. Again, to the extent that Ms Yates relies upon her contention that work could have been reorganised to avoid redundancies, that is not something Ms Yates only found out about on 24 January 2015. To the extent that she relies on these matters, she has no reasonable explanation for the delay.

[15] Ms Yates submits that she only found out that her job was still being done in January 2015. There is no evidence that Dampier Salt has employed any new employees to do Ms Yates’s job. While there may have been some reorganisation of the work such that some persons who previously had not driven trucks now do so on occasion, that does not mean that Ms Yates’s job has been filled by another. Ms Yates’s explanation for the delay is tied up with the merits of her claim. As such, it was incumbent on her to bring evidence to the Commission to support that she has an arguable case, that it only became apparent on 24 January 2015 that her job was not redundant. I will further consider this when I consider the merits of the case.

(b) whether the person first became aware of the dismissal after it had taken effect;

[16] Ms Yates knew of the dismissal when it took effect and therefore had the full 21 days to lodge her claim. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[17] Apart from lodging this application, Ms Yates did not challenge her dismissal. This weighs against extending time.

(d) prejudice to the employer (including prejudice caused by the delay);

[18] It was submitted that Dampier Salt will now be put to the time and expense of defending the claim. There was no evidence that the relevant persons would not be available to give evidence or that the passing of time would have impacted on people’s memories. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[19] While it is unusual in these cases for merits to be considered in detail, in a case where an applicant contends that the reason for the delay was that the redundancy was not genuine because there were no operational reason for making the position redundant, the party seeking to make that case must do more than make assertions.

[20] Sworn evidence was given about the reduction in production levels as well as the reduction in head count across the business. Even if some other employees are now doing some of the work previously done by Ms Yates, that does not mean that there were not operational reasons for the decision to make her position redundant.

[21] It was not clear if Dampier Salt had an obligation to consult under the Dampier Salt Employee Agreement 2009. 1There is no consultation clause in the Agreement and there was no argument before me that clause 2.7 extended to consultation.

[22] The termination letter advised Ms Yates that there may be limited redeployment opportunities. It is not clear if they were discussed with Ms Yates.

[23] As these matters were not tested before me, I am unable to make an assessment of the merits of Ms Yates’s claim. I am unable to conclude that her case at least in relation to consultation and redeployment is unarguable and that weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[24] No submissions were made on this criterion.

Conclusion

[25] I am not satisfied that there are exceptional circumstances warranting the granting of an extension of time. Ms Yates has not provided sufficient evidence for me to conclude that in January 2015 her job was being done by others. Her explanation for the delay would have been reasonable if she had established an arguable case that Dampier Salt did not have operational reasons for making her position redundant. Her lack of a sufficient explanation for the delay outweighs the criteria I have found weigh in favour of granting an extension of time. Her application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

J. Yates on her own behalf.

P. Swingler for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link.

27 February.

 1 AC324928.

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