Joel Wicks v Ulan Coal Mines Limited T/A Glencore

[2018] FWC 7080

[2018] FWC 7080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Joel Wicks
v
Ulan Coal Mines Limited T/A Glencore
(C2018/3561)

COMMISSIONER CIRKOVIC MELBOURNE, 19 NOVEMBER 2018

Application to deal with contraventions involving dismissal.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 16 November 2018. Mr Joel Wicks has made an application pursuant to section 365 of the Fair Work Act 2009 (“the Act”) for the Fair Work Commission to deal with the dispute involving contraventions relating to his dismissal. It is a dismissal of the Applicant said to have occurred due to an inability to perform the inherent requirements of his role, and taken effect from 28 May 2018. The Applicant disputes this and states that his dismissal was effective from 6 June 2018. Mr Wicks lodged his application on 28 June 2018 with the result that the application was outside of the time prescribed in section 366(1)(a) of the Act, in both the event that he was dismissed on 28 May 2018 or 6 June 2018.

[2] The first issue for me to resolve is the effective date of dismissal. The Respondent submits that Mr Wicks’ dismissal was effectively communicated to him via both email on 28 May 2018, and via post on 30 May 2018. Mr Wicks denies having received the email on 28 May 2018, and the registered mail delivered on 30 May 2018. Having considered the material before me, on balance I consider it more likely that the termination of employment was communicated to Mr Wicks on 28 May 2018. In coming to my conclusion I have been persuaded by the evidence of Ms Barber, in particular the uncontested evidence that Mr Wicks requested that email correspondence be sent to his private email address, that the letter of termination was sent to his email address provided to the Respondent and that no bounce back was received by Ms Barber.

[3] Consequently I find the dismissal was effectively communicated to Mr Wicks on 28 May 2018 and therefore his application was lodged ten days out of time. Section 366(2) allows for the Commission to allow a further period within which such an application is to be made if the Commission is satisfied there are exceptional circumstances, taking into account the reason for the delay, any action taken by Mr Wicks to dispute his dismissal, any prejudice including prejudice caused by the delay which might be suffered by the employer, the merits of this application and the fairness as between Mr Wicks and other persons in a like position.

[4] Beyond Mr Wicks’ explanation that his dismissal was not communicated to him until 6 June 2018, Mr Wicks’ other explanations for the delay were medical reasons and that he was seeking legal advice to review his application. Directions were issued on 6 August 2018 requiring parties to submit any evidence they sought to rely on by 17 August 2018. Mr Wicks did not submit any medical evidence by this date. At the hearing on 29 August 2018 Mr Wicks’ representative stated that medical evidence existed that showed he was suffering from medical conditions that incapacitated him from 28 May 2018 such that he could not lodge his application on time.

[5] I granted the Applicant another opportunity following the adjournment of the hearing on 29 August 2018 to provide medical evidence in order to establish a reason for the delay. The Applicant’s representative acknowledged at the hearing her understanding of what evidence would be required and I quote her statement, “I understand that a generic medical certificate just stating dates that he is medically unfit is not sufficient. You’ll need something that’s a bit more cohesive and that will state that he was unable to prepare, for example, prepare his documentation and lodge it within a certain timeframe that’s applicable.”

[6] On 11 September 2018 the Applicant provided medical evidence that simply stated he was unfit to perform work duties from 28 May 2018 to 29 June 2018.

[7] Whilst I sympathise with the Applicant and any employee who suffers from distress at losing their employment involuntarily, the medical evidence supplied does not support a finding that the Applicant was incapacitated such that he was unable to file his application on time. In coming to this conclusion I have taken into account the written material provided by the Applicant and the ample opportunity provided by me to enable the Applicant to present the necessary evidentiary material to support his assertions. On the material before me the medical evidence supplied does not in my view support a finding that the Applicant’s medical condition prevented him from lodging his application on time.

[8] The third ground relied on by the Applicant to explain the delay was that he was seeking legal advice to review his application. On the basis of the limited evidence before me as to Mr Wicks’ attempts to obtain legal advice and given the extensive material on the Commission’s website advising parties of the 21 day time limit, I do not accept that pursuing legal advice in circumstances such as those present in this case constitutes a reasonable reason for the delay.

[9] Given my findings I am not satisfied that the explanation given by Mr Wicks for the delay is an acceptable explanation. This is a factor that weighs against the granting of an extension of time.

[10] Turning then to the question of the action taken by the Applicant to dispute his dismissal, Mr Wicks states that he made inquiries with various free legal services to determine his rights and obligations. That is a factor that weighs in favour of granting of an extension of time.

[11] With respect to the question of prejudice the Applicant has argued that the Respondent will not be prejudiced because it has access to far greater resources. The employer has argued that it will not suffer any disadvantage unless the Applicant’s claim relates to matters between 2011 and 2015, as the manager of the Applicant during this time is no longer employed. While I have considered this submission I do not consider that it of itself equates to prejudice. I find this criterion neutral in this matter.

[12] As to the merits of the application both parties have filed materials in their respective applications and responses. I note that the allegations as to the contravention of general protections provisions are disputed by the Respondent. In applications of this kind, being interlocutory in nature, it is inappropriate to express a concluded view about the merits of an application. I have not done so. I find this criterion neutral in this matter.

[13] As to fairness between the Applicant and persons in a similar position the Applicant contended that his situation is less fair because the Respondent has greater access to resources. The Respondent argued that the Applicant’s position is fair as he was treated in accordance with clause 9.5 of his contract, a clause that is standard in the contracts of the Respondent’s staff. Ultimately I find this consideration to be neutral in this matter.

[14] It is clear from the structure of section 366(2) that in assessing whether there are exceptional circumstances account needs to be taken of all the matters, individual matters may not when viewed in isolation be particularly significant and so it is necessary to look at matters collectively and to ask whether collectively the circumstances are out of the ordinary, unusual, special or uncommon, even though when viewed individually the circumstances might not so be described.

[15] Having considered all of the factors set out in section 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 section 366(2). Accordingly the application is dismissed. An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Ms C Tamburni on behalf of the Applicant.

Mr C Bell of Corrs Chambers Westgarthon behalf of the Respondent.

Hearing details:

Melbourne:

2018

29 August, 16 November (via telephone).

Final written submissions:

Applicant’s Outline of argument: Extension of time (filed: 17 August 2018)

Respondent’s outline of argument (filed: 17 August 2018)

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