Kiernan v Om Holdings Limited

[2016] FWC 1482

[2016] FWC 1482

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Travis Kiernan
v
OM Holdings Limited T/A OM (Manganese) Ltd
(U2015/16905)
COMMISSIONER WILSON	MELBOURNE, 10 MARCH 2016

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

[1]        This matter concerns an application made by Travis Kiernan alleging unfair dismissal

against his former employer, OM (Manganese) Ltd. Mr Kiernan’s application to the Fair

Work Commission was first received in the Fair Work Commission by email on 19 December

2015. Mr Kiernan’s application discloses that the date upon which his dismissal took effect

was 11 November 2015, although he did not learn about that decision until some time later.

The date of dismissal is corroborated by the Respondent in its Form F3 – Employer Response.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal

application to be made within 21 days after the dismissal took effect or within such further

period as the Commission allows under s.394(3). It is apparent from the dates referred to

above that the application is 17 days out of time.

[3]        In this decision, and in a hearing conducted on 25 February 2016, I have considered

whether an extension of time should be granted to Mr Kiernan for the making of his

application, and for the reasons set out below, I am satisfied that a further period should be

allowed to him for the making of his application.

[4]        In considering an application for an extension of time for the making of an unfair

dismissal application, the Act requires that I must be satisfied that there are exceptional

circumstances to extend the time limit for the making of the application taking into account

the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the

test for granting an extension of time involves both a broad discretion and a high hurdle of

exceptional circumstances, and the longer the delay in making the application the more

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difficult it will generally be to get over that hurdle. A decision as to whether to extend the

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time period under s.394(3) involves the exercise of a discretion.

[5]        Of note is that the Respondent, OM (Manganese), does not object to the application

continuing, with the Respondent being prepared to concede that, owing to his significant

illness, Mr Kiernan may well not have become aware of his dismissal until some time after it

had taken place.
[2016] FWC 1482

[6]        The evidence before me includes the limited documents filed by both parties in

preparation for the hearing of the matter, and the oral evidence of Mr Kiernan, the Applicant,

and Richard Abraham, an Authorised Representative of the Administrator of OM

(Manganese) Ltd.

[7]         The material before me discloses that Mr Kiernan was first employed by OM

(Manganese) on 15 August 2014 in a plant operator role at a mine site operated by the

employer. Mr Kiernan’s application for unfair dismissal remedy refers to him being an “All

Round Heavy Machinery Operator”.

[8]        Unfortunately, Mr Kiernan developed significant mental illness, with that first

becoming apparent to his employer some time in early 2015.

[9]        Material filed by Mr Kiernan in support of his application indicates he is suffering

from depression and anxiety. He has apparently been absent from the workplace since April

2015. The Respondent’s Form F3 reports that Mr Kiernan was on leave without pay from that

time until his dismissal.

[10]      The Respondent’s position is that Mr Kiernan abandoned his employment; that he was

deemed uncontactable following their attempts to correspond with him at the completion of

his most recent medical certificate declaring Mr Kiernan unfit for work until 7 September

2015, and, as a result, the Applicant was subsequently dismissed.

[11]      The material and evidence before me in relation to this matter is basic, consisting only

of the application form and employer response, together with some short documents filed on

Mr Kiernan’s behalf, and the evidence of Mr Kiernan and Mr Abraham. I have had regard to

all of that material.

[12]      The material on behalf of OM (Manganese) suggests that a letter of termination was

posted to Mr Kiernan’s last known address on 11 November 2015.

[13]      For the purposes of s.396 of the Act, Mr Kiernan is otherwise a person protected from

unfair dismissal and the Small Business Fair Dismissal Code has no application to his

circumstances.

EXTENSION OF TIME

[14]      The FW Act requires that, in deciding whether to grant an extension of time, the

Commission must be satisfied that there are exceptional circumstances taking into account six

criteria set out in s.394. Consideration of whether there are exceptional circumstances requires

consideration of all the circumstances, with it being well established that “[t]o be exceptional,

circumstances must be out of the ordinary course, or unusual, or special, or uncommon but

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need not be unique, or unprecedented, or very rare”.

[15]      In considering whether an extension of time should be granted to Mr Kiernan, I am

required to consider all of the criteria in s.394, which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[2016] FWC 1482

[16]      The prima facie position is that the time limit prescribed by the Act should be

complied with unless there is an acceptable explanation of the delay which makes it equitable

4

to so extend. An applicant needs to provide a credible reason for the whole of the period that

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the application was delayed. The delay required to be considered is the period beyond the

prescribed 21 day period for lodging an application. It does not include the period from the

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date of the dismissal to the end of the 21 day period.

[17]      In relation to Mr Kiernan, the evidence indicates that he suffered significant mental

illness during 2015, from about February or March, and that he was absent from work for the

whole period from April 2015. The extent of his illness meant that he required hospitalisation,

as well as being unfit for work, both for reason of his ability to attend work, as well as his

ability to safely perform his duties as a plant operator. Mr Kiernan’s evidence is that he

provided the Respondent with medical certificates for the entire period, and that the manager

with whom he communicated, Mr Chambers, was very understanding and supportive of him.

The severity of his medical condition was such that he returned to live with his parents, who

also had authority to open his mail during the periods he was unable to attend to his affairs.

[18]      Mr Kiernan’s evidence is that in early December 2015 he was cleared by his doctors to

return to work. He provided that information to the Respondent and endeavoured to negotiate

a return to work. When he did not hear from the people with whom he had been endeavouring

to contact, he sent a further email to them on 18 December 2015, which is set out below;

“Good Morning

I have been trying to make contact with Carl and John regarding my clear to return to

work but my emails have gone without reply. Could you please pass a message onto

both that I have been cleared to return to normal duties. Please find attached an up to

date doc cert and return to work document any other documents you need just flick me

an email and I’ll get it sorted.

Kind Regards

Travis Kiernan”

[19]      After sending that email, he received this response from the company, which advised

that he had been dismissed, and that such had occurred some time earlier;

“Travis

th

Your employment was terminated on the 11 of November 2015. As stated in the

th

letter posted to your last known address on the 11 of November 2015. Carl and

myself tried emailing and phoning you numerous times without any response as you

were rostered to return to work in early September 2015. Previous medical certificate

only covered the period ending 7 September 2015. This is the first correspondence we

nd

have received from you since the 2	of September 2015.
Regards,
Andre”

[2016] FWC 1482

[20]      Mr Kiernan’s clear evidence is that he had not previously known about this situation.

He had received no communication from the Respondent on the subject, and none had been

received by his parents at his residential address. Considering his dismissal to be unfair, he

then commenced an unfair dismissal action, which was filed in the Fair Work Commission on

Saturday, 19 December 2015.

[21]      Mr Abraham, for the Administrator of OM (Manganese) Ltd, does not dispute that Mr

Kiernan first became aware of his dismissal on Friday, 18 December 2015, as put forward by

the Applicant, but maintains, on the instructions available to him, that there had been an

earlier communication to Mr Kiernan of his dismissal, and that the letter of termination had

been sent to him on 11 November 2015. While making the concession indicated, Mr Abraham

reserves the right, in a merits hearing, and for the purposes of rebutting the contentions of

unfairness that may be made therein, to bring forward such material as may be available to

prove the Respondent communicated Mr Kiernan’s termination to him during November.

[22]      In the circumstances, I accept that Mr Kiernan’s dismissal took effect on 11 November

2015. 

[23]      The “delay” to be considered in this case is the period it took after the 21 day

prescribed period for Mr Kiernan to lodge his application. In all, that period was a total of 17

days. He filed his unfair dismissal application within a day of learning that he had been

dismissed.

[24]      I find that Mr Kiernan’s explanation that he was not aware of his dismissal until 18

December 2015 as his explanation for his delay in making an application to the Commission.

[25]      As a result of these circumstances, I consider there to be an acceptable reason for the

delay in Mr Kiernan in making an unfair dismissal application. Accordingly, this criterion

resolves in his favour in my consideration of whether an extension of time for filing should be

granted.

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

[26]      On the basis of the evidence before me, I am satisfied that Mr Kiernan first became

aware of the termination of employment on 18 December 2015. This becomes a factor in Mr

Kiernan’s favour in my consideration.

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

[27]      The only relevant action taken by Mr Kiernan to dispute his dismissal is a short email

in response to the one in which he learned he had been dismissed, and to lodge an unfair

dismissal application.

[28]      This is a neutral factor in my consideration.

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

[2016] FWC 1482

[29]      The delay in the filing of the application is 17 days. The respondent does not claim

that the delay in lodging the application caused it prejudice, other than the additional time and

expense objecting to the extension of time.

[30]      I note, however, that the Respondent’s circumstances of this matter are unusual

inasmuch as the company has been placed into Administration and all but 3 employees, of the

more than 130 employed at the time Mr Kiernan’s dismissal took effect, have also been

dismissed, for reason of redundancy. The Respondent is unfortunately suffering a major

downturn in its commodity pricing and so is now not operating. While it has employed a

further 3 employees since the Administrator was appointed, those people and the remaining 3

are performing site maintenance duties, rather than mining operations.

[31]      While I take that factor into account in weighing the prejudice that may accrue to the

employer, as potentially reducing its ability to have available to it people who may be able to

give evidence about the circumstances of Mr Kiernan’s dismissal, it is to be noted that the

Respondent does not argue this as a point of prejudice.

[32]      As a result, I am satisfied that there is no evidence before the Commission that there

would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[33]      The merits of the application to which I must have regard are whether or not the

limited evidence I have seen to date discloses a likely unfair dismissal.

[34]      The Respondent relies upon the material disclosed in the email referred to above as

being a valid reason for Mr Kiernan’s dismissal. When it did not hear from him for an

extended period, it presumed he had abandoned his employment.

[35]      Mr Kiernan’s evidence is that, to the contrary, he kept the company fully informed,

providing them with a continuous supply of medical certificates. When his health improved,

he made contact with the company to seek a return to work, and it was only at that point that

things went wrong. At first he could not make contact with anyone from the company and

when he did in December, he was told he had been dismissed during November 2015. He then

learned that others around him had also been dismissed, but for reasons of redundancy. He

now maintains that the proposition he had actually been dismissed during November 2015 is

not much more than a ruse put forward in order to deny him redundancy benefits.

[36]      The circumstances of the Respondent are such that, in the event an unfair dismissal

was found, the prospect of reinstatement is unlikely. However the Respondent does not put

forward at this time an inability to pay compensation if that was ordered.

[37]      In relation to the Commission’s consideration of the merits of an application when

undertaking an analysis of whether an extension of time for the filing of an unfair dismissal

application should be granted, the Commission does not require detailed evidence and usually

does not make findings of fact as to the evidence which is brought forward on the merits of

the application. Instead the Commission’s consideration of this question is to ascertain

whether there is an arguable case on behalf of the applicant; or alternatively whether it

appears that such case either has very strong or very weak merits on its face. It has been said
[2016] FWC 1482

in previous matters that a highly meritorious claim may persuade a decision-maker to accept

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an explanation for delay that would otherwise have been insufficient.

[38]      In considering Mr Kiernan’s application, I am satisfied that there is at least an

arguable case on his behalf, while noting that the case is as yet untested and that the former

employer opposes the construction of circumstances that Mr Kiernan would put forward.

[39]      Notwithstanding the submissions on behalf of the former employer, it is my view that

consideration of this criterion resolves in Mr Kiernan’s favour.

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

[40]      In considering whether I should grant an extension of time, I need to have regard to

whether it is fair to other unfair dismissal applicants whose applications are either currently

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before the Commission, or have been decided in the past.

[41]      I consider there would be no unfairness to other persons in a similar position were an

extension of time to be granted to Mr Kiernan. His are unusual circumstances; extended and

debilitating illness prevented him from attending work for many months. While it is to the

Respondent’s credit that they accommodated his absences until November 2015, the evidence

is that Mr Kiernan did not know about his dismissal until 18 December 2015, the day before

he filed his unfair dismissal application in the Fair Work Commission.

[42] Taking into account all relevant factors, I am satisfied there are exceptional

circumstances that would warrant allowing a further period for Mr Kiernan for the making of

an application for unfair dismissal remedy. In forming this view I have given consideration

not only to the particular circumstances of Mr Kiernan’s case but also to the criteria set out

within s.394(3) of the Act.

[43]      An order is issued in conjunction with this decision that the time for Mr Kiernan to file

his unfair dismissal application made pursuant to s.394 of the Act be extended until 19

December 2015.

COMMISSIONER

Appearances:

Mr T Kiernan on his own behalf

Mr R Abraham (appointed administrator) for the Respondent

[2016] FWC 1482

Hearing details:

2016.

Darwin (by telephone):

25 February

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1

Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace

Relations [2014] FWCFB 2288, [21].

2

Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [9].

3

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v

Australian Postal Corporation [2007] AIRC 848.

4

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

5

Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

6

Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

7

Haining v Deputy President Drake (1998) 87 FCR 248, 250.

8

Wilson v Woolworths [2010] FWA 2480, [24]‒[29].