Ken Ormond v Pilbara Logistics WA Pty Ltd - [2014] FWC 1673

[2014] FWC 1673

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ken Ormond
v
Pilbara Logistics WA Pty Ltd
(U2013/16437)

COMMISSIONER WILSON

MELBOURNE, 11 MARCH 2014

Application for relief from unfair dismissal - jurisdictional objection - whether extension of time should be granted.

[1] Mr Ormond has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Ormond’s application relates to the termination of his employment by Pilbara Logistics WA Pty Ltd (PLWA) on or around Friday 8 November 2013, and was lodged in the Commission on Monday 2 December 2013.

[2] For the reasons set out below, it is necessary for the Commission to consider whether a further period should be allowed to Mr Ormond for the making of an unfair dismissal application.

[3] Since I am satisfied there are exceptional circumstances in the manner set out in s.394(3) of the Act, I allow Mr Ormond the further period he seeks.

Background

[4] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[5] The 21 days for lodgement does not include the date that the dismissal took effect 1. As a result, the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day2. Public holidays or weekends that fall during the 21 days will not extend the period of lodgement.

[6] Having been dismissed on Friday 8 November 2013, Mr Ormond’s application would need to have been made to the Commission no later than Friday 29 November 2013 in order for it to be within time. While Friday 8 November is the business day before the day on which Mr Ormond’s application was actually lodged, the proper construction of the available time limit means his application was three days out of time.

[7] A conciliation conference of the parties has not been held, since PLWA objects to the continuation of Mr Ormond’s application arguing it was made after the period allowed for in the Act. Mr Ormond has acknowledged this fact and seeks an extension of time pursuant to s.394 of the Act.

[8] The circumstances of PLWA terminating Mr Ormond’s employment include the following;

Mr Ormond’s Application indicates that he was first employed by PLWA on 7 January 2012.

While domiciled in Darwin, he worked from Port Hedland, WA as a fly-in, fly-out worker. He was employed to drive trucks in and around Port Hedland.

On the day he was dismissed he was called into a meeting with a PLWA manager Mr Allan Moultan. In that meeting he was told by Mr Moultan the company had some bad news, that it was downsizing and that Mr Ormond and would no longer be working for the company.

He was asked to leave the premises, pack and return to Darwin on a flight that had already been arranged for later that day.

In the meeting he was given the letter of termination which appears in his application, dated 8 November 2013.

The meeting was short and took place at about 11 AM.

Mr Ormond understands that from about 15 or so employees in total employed by PLWA in Port Hedland at the time, he was one of three people whose employment was terminated on or around the same day. The other two people included his son and a woman.

[9] At the time of dismissal, Mr Ormond was provided with a letter, dated 8 November 2013, and entitled “termination of employment”. The letter states the following;

“Dear Kenneth

RE: TERMINATION OF EMPLOYMENT

Due to the change in the PLWA Group (PLWA) operational requirements I regretfully inform you that your employment with PLWA will be terminated effective today the 8th of November 2013.

As your employment agreement PLWA agrees to pay you our (sic) two (2) weeks’ notice in lieu of termination and your current entitlements that have been accrued.

We appreciated your efforts and the work you have done within PLWA and wish you the best for your future endeavours.

Regards

Allan Moultan

Port Hedland Manager

PLWA Group” 3

[10] The termination letter refers to Mr Ormond’s dismissal being due to a change in the PLWA operational requirements.

[11] The material before me in relation to this matter is not extensive, and consists of the application made by Mr Ormond; the letter of termination to which I have referred, and which is included in his application together with a short summary of what happened and his grievance about those events; and some short emails provided by both parties to the Commission regarding the application for an extension of time. In addition, there is the evidence and submissions of Mr Ormond and the company’s representative, Mr Geoff Selfe, Human Resources Manager (who made submissions only and did not give evidence). Mr Ormond has also submitted for consideration correspondence to him from the Fair Work Ombudsman.

[12] I have had regard to all of this material.

[13] Mr Ormond’s witness statement and evidence refers to the following events and action after his dismissal;

He returned to Darwin the same day he was dismissed, which was Friday 8 November.

He says that he immediately started looking for work.

Shortly after returning to Darwin, Mr Ormond’s partner’s sister passed away in Arnhem Land and he and his partner had to attend the funeral. His evidence is that he became aware of the funeral around 15 November and that he recalls he and his partner leaving Darwin to travel to Maningrida on or around 18 November. He said about these circumstances;

“... this death was in Maningrida Northern Territory which is a community in (remote) Arnhem Land. As is custom within the Aboriginal people there is a sorry period which can last up to four weeks. This is done in the community outstations. I attended this as a support for my partner therefore was unable to lodge my application by the due date.” 4

Mr Ormond went to see the Fair Work Ombudsman (FWO) in Darwin in the week of 15 November. He recalls discussing with the FWO his grievance that he had not been paid properly upon termination. As result of the conversation with the Darwin staff member he lodged an underpayment complaint with the FWO. Subsequent correspondence from the FWO indicates this lodgement was on or around 14 November 2013 5;

Mr Ormond did not speak with anyone else about his termination or his rights other than his son and a mate.

Mr Ormond says that he returned from Arnhem Land late on 29 November 2014.

He did not give evidence that he was aware of a time limit for the making of an unfair dismissal before he made the application.

[14] On 28 November 2013, the FWO wrote to Mr Ormond and advised the following;

“Withdrawal of complaint

Dear Mr Ormond,

I refer to your complaint lodged with the Fair Work Ombudsman (FWO) on 14 November 2013 against Pilbara Logistics (WA) Pty Ltd. Your complaint concerned allegations relating to non-payment of redundancy.

As discussed with you on 28 November 2013, based on the information available to me at this stage, it would appear that in accordance with the National Employment Standards (NES) contained in the Fair Work Act 2009, there is a redundancy entitlement outstanding to you. I note however, your former employer is unwilling to voluntarily resolve the matter.

In our aforementioned discussion, you agreed to withdraw your complaint and you advised me that you would pursue the matter in a small claims jurisdiction. Please contact the Industrial Magistrates Court of Western Australia on 08 9420 4467 for further information about taking small claims action. Alternatively, you may wish to visit their website at

Please be advised that the FWO will take no further action in relation to this matter and your complaint will be closed.” 6

[15] PLWA opposes the granting of an extension of time on the basis that no exceptional circumstances exist.

Legislative scheme

[16] Relevant to the Commission’s consideration of this question are the provisions in s.394 of the Act:

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

(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.

[17] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”. 7

Consideration

[18] In considering whether I am satisfied there are exceptional circumstances which might lead to allowing a further period for the application to be lodged, I turn to consider each of the criteria set out in subsection 394(3) of the Act.

1. The reason for the delay

[19] Mr Ormond’s reasons for the delay in lodging an application for unfair dismissal remedy are the death which occurred within his family, connected with his lack of knowledge about his rights and entitlements.

[20] Mr Ormond argues in respect of the death within his family that aboriginal custom requires personal attendance at the funeral and connected events which take place in the family homeland over several days. The circumstances of the Northern Territory of course are that often such areas are remote from Darwin and travel to them requires considerable time which both mean the person attending the funeral and related events might be away from contemporary forms of communication.

[21] Mr Selfe for PLWA contended first of all that Mr Ormond had not attended a funeral and that he had changed his statement about who had died.

[22] In the course of preparation for this hearing, Mr Selfe asked for the issuance of an Order by the Commission for the production of the death certificate of the person who had died. I declined the request on the grounds that I was not satisfied that Mr Ormond had, or could reasonably be expected to have, the death certificate of a relative who was not his child, parent or spouse.

[23] In the course of giving of evidence by Mr Ormond, Mr Selfe questioned Mr Ormond about why he now said the death was of his partner’s sister when at an earlier time Mr Selfe recollected Mr Ormond saying that the death was of another relative of his partner. Mr Ormond maintained his evidence that the person who had died was his partner’s sister. Other than putting to Mr Ormond that this was a change in his story about the person who had died, there was not any cross-examination of Mr Ormond to the effect that he had not attended the funeral, either at all or for the length of time or in the remote localities about which he gave evidence.

[24] After considering Mr Ormond’s evidence as a whole, I am prepared to accept what he says about the attendance at a funeral and its duration. I note that his evidence discloses he attended a family funeral some distance away from Darwin which required his attendance over a period of several days and that he did not return to Darwin until on our around 29 November.

[25] I am also prepared to accept that Mr Ormond does not have anything more than a basic understanding of his rights and entitlements; how he can have those rights enforced; or the time periods he had in which to make an application

[26] I therefore accept that Mr Ormond’s absence from Darwin in order to attend a family funeral together with his lack of knowledge about his rights and entitlements are the reasons for his delay in making an application to the Commission for an unfair dismissal remedy.

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

[27] Mr Ormond was informed of his dismissal on the day it occurred and had his dismissal and the purported reason for the dismissal provided to him on the same day. As a result, this criterion is not a factor in my decision making.

3. Any action taken by the person to dispute the dismissal

[28] As previously referred to, Mr Ormond contacted the FWO and made a complaint to them which was the subject of inquiry by a Fair Work Inspector. After consideration of Mr Ormond’s evidence as a whole, I am satisfied his lack of knowledge of his rights and entitlements and how they might be exercised may well have influenced how he sought advice from, and how he pursued his complaint with, the FWO.

[29] In evidence, Mr Ormond appeared to be mainly motivated by a desire to recover what he saw as redundancy entitlements and appears to be confused as to the appropriate jurisdiction in which to obtain what he sees as his entitlement.

[30] The correspondence from the Fair Work Inspector properly referred Mr Ormond to the small claims jurisdiction of the industrial Magistrate’s Court of Western Australia. I am satisfied that, faced with the sort of commentary to which Mr Ormond referred in his evidence, the advice of the Fair Work Inspector was the proper advice, although that is not to discount that Mr Ormond may have had the basis of an unfair dismissal application separate to a complaint he might make for the recovery of entitlements.

[31] In considering the action taken by Mr Ormond after his dismissal, I am satisfied that he did, in fact take steps to dispute his dismissal.

4. Prejudice to the employer (including prejudice caused by the delay)

[32] Although PLWA does not directly submit there will be prejudice if an extension of time is granted, it is noted there will be prejudice in dealing with the late application in circumstances where the need to do so has expired, and where the statutory framework of the Act is designed to create certainty for all concerned.

[33] In the event that an extension of time is granted to Mr Ormond, the prejudice to PLWA will be principally the prejudice of the elapsed time between the date on which the termination of employment took effect and the date on which the application was made. There is no material before me that would show the nature of this, or that it would unduly disadvantage PLWA.

5. The merits of the application

[34] Mr Ormond’s application raises several issues for consideration by the Commission should the matter proceed to a hearing on the merits. These include;

An allegation that he was told at the time of termination that other employees would also be made redundant, when apparently they were not;

Being told that he would receive upon termination all monetary entitlements owed to him, when he alleges not all have been paid;

An allegation that even though he was told he was terminated for reason of redundancy, when he walked out of the office where he was informed he was dismissed, “there was another driver in the truck to go and do my job”. 8

[35] Mr Ormond believes that he has been unfairly dismissed for these reasons and that, upon dismissal, his termination benefits were not the same as received by other dismissed employees 9.

[36] PLWA have not filed any submissions with the Commission to date about the merits of Mr Ormond’s claim.

[37] Although Mr Ormond pursues his application, in summary, on the basis that he has been unfairly treated in connection with other similar employees and that he believes he was dismissed for reason of redundancy, PLWA submit that Mr Ormond was not dismissed for redundancy but was instead dismissed for “operational reasons” associated with a downturn in business.

[38] I put directly to Mr Selfe in the hearing whether that meant PLWA did not assert that Mr Ormond was dismissed for reasons of genuine redundancy, and Mr Selfe agreed this was the case. While PLWA are yet to file a detailed response in relation to the application made by Mr Ormond it appears from the matters which Mr Selfe referred to in the hearing that the company relies upon a restructuring of the business which caused it to choose Mr Ormond and others for termination, on the basis of their perceived poor performance.

[39] This position of PLWA is somewhat at odds with Mr Ormond’s understanding about the reasons for his termination and potentially with the reasons set out in the termination letter he received 8 November 2013.

[40] Mr Ormond’s application and his subsequent evidence is that at the time of dismissal he was told the company was downsizing. His application remarks on being told that he would get all of his entitlements which were not subsequently received and having walked out of the office on the day of termination to find that there was another driver already in his truck to go and do his job. His evidence in respect to his expected entitlements clearly shows that he thought he was entitled to redundancy benefits which were not subsequently paid. The letter of termination from the company’s manager clearly refers to “the change in the PLWA Group (PLWA operational requirements)” 10 as being the ground for termination of employment.

[41] On the basis of the material before me, Mr Ormond’s Application is at least arguable in the event that the company continues to rely upon the reason for termination being something other than genuine redundancy. This opinion may be different if the company asserted the dismissal was a genuine redundancy, which would have placed its understanding as consistent with Mr Ormond’s.

[42] This is because the reason given by PLWA, that this is not a dismissal for reason of genuine redundancy is inconsistent with the Applicant’s understanding of the reason for his termination. It is also because there is, as yet, no alternative proposition before the Commission about the reason for termination and whether it is a valid reason, other than a short reference by Mr Selfe to there having been performance warnings issued to Mr Ormond in the year prior to his dismissal.

[43] The warnings to which Mr Selfe refers do not appear to be especially proximate to the date of his termination, and appear not to have been notified to Mr Ormond as being the reason for the termination of his employment at the time that he was dismissed 11.

[44] In addition, in the event that the company relies on factors other than genuine redundancy as being the reason for termination, there is no evidence before me to indicate the other elements of s.387 of the Act have been followed. That is not to say that such evidence is not available to be produced in a merits hearing, merely that it is not before me in this matter.

6. Fairness as between the person and other persons in a like position

[45] The Commission’s consideration in respect of this criterion is a consideration of Mr Ormond’s situation in comparison to other persons who may have been dismissed and who seek to make an application for an unfair dismissal remedy.

[46] In this regard, I am satisfied a question of fairness of treatment to Mr Ormond arises firstly because of his general lack of sophisticated knowledge about the means by which he can exercise his rights; and secondly because of what PLWA put forward as the reasons for Mr Ormond’s termination of employment.

[47] I am satisfied there is perhaps a greater likelihood of a discretion to be exercised in respect of a person like Mr Ormond, with a relatively low appreciation of the Fair Work system. I am satisfied also there is perhaps a greater likelihood of a discretion to be exercised in respect of a person who has one understanding of the reasons for their termination which is at odds with the understanding put forward by their former employer at a time well after the date of termination.

Decision

[48] Having considered all of the circumstances relating to Mr Ormond’s application to the Commission, I am of the view a further period should be allowed in order for him to make his application for unfair dismissal. I have formed this view for the reason;

firstly because Mr Ormond endeavoured as diligently as he could to dispute his dismissal or aspects related to it, which is evidenced through his complaint to the Fair Work Ombudsman;

secondly that he was in a remote locality associated with his family’s funeral commitments; and

finally that his application has some arguable element in the event PLWA does not rely upon genuine redundancy as the reason for his dismissal.

[49] In relation to the second of these reasons, Mr Ormond’s absence from Darwin, I note that I do not rely upon that as the considerable or overwhelming reason for the granting of an extension of time. Were that to be the only factor, or were the third factor not evident, the discretion would not be exercised by me.

[50] For these reasons, I am satisfied there are exceptional circumstances in the manner envisaged by s.394(2) of the Act for the grant of a further period to Mr Ormond for the making of an application for an unfair dismissal remedy.

[51] An order extending the period of time in which Mr Ormond may make his application is issued at the same time as this decision.

COMMISSIONER

1 Acts Interpretation Act 1901 (Cth), s.36(1)

2 Ibid., s.36(2); see Hemi v BMD Constructions Pty Ltd[2013] FWC 3593

3 Form F2, Application for Unfair Dismissal Remedy, item 2

4 Email from Applicant, 24 February 2014

5 Letter to Mr Ormond from Fair Work Ombudsman, 28 November 2013

6 Ibid.

7 Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

8 Form F2, Application for Unfair Dismissal Remedy, item 3, Statement of Ken Ormond

9 Ibid.

10 Letter of Termination, 8 November 2013

11 Fair Work Act 2009, s.387 (b)

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