Jessica Mowle v Rio Tinto Limited T/A Pilbara Iron

[2015] FWC 1311

[2015] FWC 1311

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jessica Mowle
v
Rio Tinto Limited T/A Pilbara Iron
(C2014/7535)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 2 MARCH 2015

Application to deal with contraventions involving dismissal.

[1] On 29 October 2014 Ms Jessica Mowle (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that Rio Tinto Limited T/A Pilbara Iron (Rio - the Respondent) had contravened the general protections provisions of the Act by taking action which resulted in her dismissal by Ms Mowle’s employer, Downing Teal Pty Ltd T/A DT Workforce (DT Workforce), on 22 September 2014.

[2] As Ms Mowle’s application was lodged outside the 21 day statutory timeframe for lodgement specified in s.366(1) of the Act, the Fair Work Commission (the Commission) on 26 November 2014 wrote to both parties advising that a decision was required on whether or not there were exceptional circumstances warranting the Commission allowing a further period of time for the application to be made.

[3] Directions were issued requiring Ms Mowle and Rio to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Those directions invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with its directions. Neither party asked to be heard on the matter.

[4] In addition to both parties lodging outlines of submissions, Ms Mowle filed a witness statement, while Rio lodged a witness statement by Mr Joseph O’Connell, a Quality Measurement Supervisor at its Cape Lambert site and the person responsible for supervising Ms Mowle.

[5] The Commission unsuccessfully sought to convene a brief telephone hearing on 27 February 2015 to enable it to ask Ms Mowle a number of questions intended to clarify aspects of her written submission and witness statement. However, Ms Mowle contacted the Commission later that day which provided an opportunity for the Commission to put its foreshadowed questions to her.

[6] For the reasons set out below I have found that there are not exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application cannot proceed and the application is therefore dismissed.

Background

[7] Rio is the parent company of Pilbara Iron Company (Services) Pty Ltd (Pilbara). Pilbara supplements its workforce through a contractual arrangement with DT Workforce. Ms Mowle was employed as a casual by DT Workforce.

[8] On 28 July 2014, Ms Mowle commenced a three month placement with Pilbara as a Quality Management Operator at Cape Lambert reporting to Mr O’Connell.

[9] On 22 September 2014 (after Ms Mowle had returned from being rostered off), Mr O’Connell, convened a meeting with Ms Mowle and Mr Luke Mullins of DT Workforce. During the meeting Mr O’Connell advised Ms Mowle and Mr Mullins that Ms Mowle’s placement would be brought to an end. This followed a team meeting in mid-September 2014 during which Mr O’Connell developed concerns about Ms Mowle’s attitude to safety and her ability to take instructions. Earlier in September, Mr O’Connell had counselled Ms Mowle regarding her interaction with another employee. Mr O’Connell also informed Mr Mullins of this at the time.

[10] Mr Mullins sent an email to Ms Mowle later that day confirming her dismissal.

[11] On 24 September 2014, Ms Mowle lodged an application under s.365 of the Act with DT Workforce cited as the respondent. On 15 October 2014 that application was the subject of a conference convened by the Commission. As the dispute was not resolved, a certificate was issued on 22 October 2014. On 20 October 2014, i.e. after the previously mentioned conference, Ms Mowle sought advice on her application from Legal Aid. Ms Mowle met with Legal Aid on 24 October 2014 and on 29 October 2014 lodged a second general protections application. That application cited Rio as the respondent. Ms Mowle sought to have the second application joined to the first.

[12] Ms Mowle was advised by the Commission on 6 November that, as the second application was lodged 16 days outside the 21 day statutory timeframe for lodgement, a decision would need to be made on whether exceptional circumstances existed warranting the timeframe for lodgement of the application being extended.

The Relevant Legislation

[13] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Whether to allow a further period for the application to be made

[14] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[15] Ms Mowle submitted that she had made an error in the first application by only naming DT Workforce as the respondent as she was unaware that she could also cite Rio as a respondent. Ms Mowle further submitted that she questioned whether or not this was an error up until the conference convened by the Commission concerning her initial application. This included contacting the Commission on 13 October 2014 regarding this issue. Ms Mowle’s handwritten notes of that conversation which were attached to her witness statement state “can amend respondent after phone conf.”

[16] Ms Mowle attests that she sought advice from Legal Aid shortly after the conference and was advised to lodge another general protections application citing Rio as the respondent and request that her two applications be joined. In her witness statement, Ms Mowle also commented that the Commission’s General Protections Guide 2 is silent about third parties and agents.

[17] Rio noted that the application was lodged 16 days outside of the statutory timeframe for lodgement and contended that Ms Mowle did not make any attempt to clarify whether she had a right to make an application against Rio within the required time. Rio submitted that Ms Mowle failed to demonstrate that there was an acceptable reason for the entire delay, or an acceptable reason for the delay between being advised to make an application against the respondent and the filing of the application.

[18] Ms Mowle argues that her application was lodged late because she was unaware that she could cite Rio as a respondent. In her witness statement, Ms Mowle attests that she discussed this issue with the Commission on 13 October 2014, which is the twenty first day after her dismissal took effect. However, she did not seek legal advice on the issue until 20 October 2014 when she contacted Legal Aid. As to the reason for this delay, on 27 February 2015 Ms Mowle advised the Commission that it stemmed from her lack of knowledge of the whole process. As to the reason for five day delay from when Ms Mowle met with Legal Aid on 24 October 2014 until she lodged the application on 29 October 2014, Ms Mowle informed the Commission on 27 February 2014 that while she prioritised the finalisation of her application she was not aware that taking her time to do so would mean that her application would be lodged outside the 21 day statutory timeframe.

[19] The reasons given by Ms Mowle for the delay do not point to the existence of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[20] Ms Mowle stated that she disputed her dismissal with Mr Mullins at the time of her dismissal and then with Rio Superintendant, Mr Glenn Marci, by email when she requested work on other Rio sites.

[21] Rio conceded that Ms Mowle took steps to dispute her dismissal by lodging a general protections application against DT Workforce on 29 September, though it noted that no claim was made against Rio or its subsidiaries until 29 October.

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

[22] Rio submitted that it would suffer prejudice if time were extended as it would be required to expend significant time and expense defending an application that is lacking in merit and has no reasonable prospect of success.

[23] Ms Mowle did not make any submissions on this aspect.

(e) The merits of the application

[24] In her application Ms Mowle contends that Rio contravened s.340 (which relates to exercising or not exercising workplace rights), s.343 (which relates to coercion to exercise or not exercise workplace rights) and s.345 of the Act (which relates to misrepresentations in respect of workplace rights). As to the workplace right Ms Mowle had exercised, she described this in her application as reporting bruising her leg when climbing down a three step ladder. In her submission and witness statement Ms Mowle did not provide any further details on these alleged contraventions. However, she did contend that her dismissal was also as a result of discrimination by Mr O’Connell. Specifically, Ms Mowle attested that Mr O’Connell had indicated that her placement was being terminated because he was concerned that she might die on shift but that in response to a question from Ms Mowle indicated that he could not be sure that no one else would not die on his shift. Beyond that Ms Mowle’s contentions largely went to issues of fairness, with Ms Mowle describing herself as a safe and competent worker.

[25] In her outline of submissions, Ms Mowle also identified Rio as having breached sections 348, 351 and 355 of the Act.

[26] Rio contended that Ms Mowle had not identified or particularised any basis for the general protections contraventions being alleged. Rio further submitted that on the basis of the information provided by Ms Mowle, her application was lacking in merit and had no reasonable prospect of success.

[27] An analysis of the material before the Commission supports a finding that the merits of the application are not compelling. For instance, the discrimination alleged by Ms Mowle does not align with the forms of discrimination outlined in s.351 of the Act.

(f) Fairness as between the person and other persons in a like position

[28] Ms Mowle submitted that persons in her position with little knowledge of this area of law and living remotely, with financial stresses and the burden of seeking another job could be reasonably seen to have a lack of opportunity to receive legal representation. Granting an extension of time would, in Ms Mowle’s submission, go some way to redressing this relative disadvantage.

[29] Rio submitted that granting an extension of time would encourage late applications in circumstances where the person had the opportunity to ascertain their rights prior to deciding to lodge an application.

[30] Many of the factors cited by Ms Mowle are not uncommon when someone has lost their job. Accordingly, I do not consider Ms Mowle to be in a significantly different position to many others in her situation.

Conclusion

[31] With regard to the relevant statutory considerations, the question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.

[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...” [Underlining added]

[32] Drawing on Nulty, Ms Mowle’s ignorance of the ability to cite Rio as a respondent in her initial application and her self-confessed lack of knowledge of the whole process do not constitute an exceptional circumstance.

[33] In her submission, Ms Mowle relied upon Lane v Kangaroo Island Dive & Adventures Pty Ltd 2 (Lane) as an example of where an extension of time had been granted in circumstances where the applicant as unaware of an initial error regarding his general protections application until the phone conference. However, the circumstances in that case differ from Ms Mowle’s situation in that the applicant in Lane had made an application under s.773 of the Act as opposed to s.365 based on advice from a community legal centre. Further, the application was made within the relevant statutory timeframe. An application under s.773 was not open to the applicant in Lane as he was employed by a national system employer.

[34] Together, these factors weigh against a finding that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365.

[35] My assessment of the merits of Ms Mowle’s application as not being compelling further weighs against the granting of a further period for the making of an application under s.365.

[36] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365.

[37] Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect [PR561367] will be separately issued.

 1   [2011] FWAFB 975

 2   [2010] FWA 3939

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