Leon McMillan v Hampton Transport Services Pty Ltd

[2015] FWC 7857

[2015] FWC 7857 [Note: An appeal pursuant to s.604 (C2015/7985) was lodged against this decision - refer to Full Bench decision dated 5 February 2016 [[2016] FWCFB 279] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Leon McMillan
v
Hampton Transport Services Pty Ltd
(C2015/6015)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 16 NOVEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 9 September 2015 Mr Leon McMillan (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Hampton Transport Services Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent in July 2008. He lives in King Ash Bay which is a remote fishing village on the Macarthur River in the Northern Territory approximately 1000 kilometres south east of Darwin. He was employed by the Respondent, which is a transport contractor, as a supervisor of drivers at the Macarthur River mine. He says that he was dismissed on 10 August and the dismissal took effect on that day.

Alleged Contravention

[3] The Applicant submits that he was not aware of the 21 day time limit for filing. His remote location means that there is very limited communication services and opportunity to get advice. Immediately after the dismissal he had to travel to Port Macquarie in New South Wales to visit his elderly father who was ill. Upon his return to Darwin his daughter had a legal contact. He briefed Minter Ellison on 8 September, who lodged the application, on a pro-bono basis, the next day. A breach of s.340 is alleged. The Applicant submitted that he exercised a workplace right by reporting safety breaches and raising safety incidents on or about the mine site. He was dismissed without formal explanation.

Respondent’s Submissions.

[4] The Respondent submits that the Applicant resigned on Friday 7 August by telling Mr Dave Jones and Mr Bart Jones (the Managing Directors of the Respondent) that he was leaving. He returned on Monday to pick up his belongings. There was no step taken by the Respondent to dismiss the Applicant or force his resignation.

Relevant Legislation

[5] 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.”

Approach of the Commission

[6] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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] On 2 October 2015, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 2 November 2015.

[8] The Applicant was represented by Kirby Lawler, solicitor of Minter Ellison Lawyers. The Respondent was represented by Rayn Wade, solicitor Ashurst Australia. Both were granted permission pursuant to s.596 of the Act.

Matters to be taken into account pursuant to s.366(2)

[9] 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

[10] If the Applicant was dismissed on 10 August he filed nine days late. He relies on a combination of factors to justify the lateness:

● He lives in a remote location which has limited communication with the outside world. There is no internet connection and unreliable telephone connection.

● He had been advised of his father’s illness in early August and this was preoccupying him.

● He and his wife left home on 12 August to travel to Darwin to catch their flight. This took two days because of a car break-down.

● He was then attending to his sick father and attending to family matters.

● He accessed legal advice upon his return to Darwin once he was aware that this was possible.

[11] As the quote from Nulty above demonstrates, “exceptional circumstances” may be comprised of a combination of factors which separately would not bring an applicant within s.366(2). This was affirmed by the Commission, also in Wayne Candy v Structural Cranes Pty Ltd[2012] FWA 5878. In my view this is such a case.

[12] I am satisfied that the combination of the factors listed above provide the basis for a finding that exceptional circumstances exist.

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

[13] After 10 August, there is no evidence of the Applicant disputing the dismissal. However, this is explained by the Applicant’s circumstances as outlined above.

[14] I consider that this factor is neutral.

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

[15] I do not consider that the Respondent would be unduly prejudiced in having to deal with the substance of the Applicant’s claim.

(d) The merits of the application

[16] The Applicant, in his witness statement set out in some detail the complaints he made to senior management based in Western Australia about the level of health and safety on site. The complaints centred on the performance of the Respondent’s safety officer who had been appointed in February 2015. Over several months, he reported a range of health and safety problems, in his role as supervisor. He felt that these complaints were not taken seriously.

[17] The Applicant concedes that he did threaten to resign on Friday 7 August but told Bart Jones that he would think about it over the weekend. He was orally dismissed by Darryl Sutton, another supervisor, when he returned to work on Monday, 10 August.

[18] The Respondent submits that the Applicant verbally resigned on 7 August but provided no sworn evidence from a representative of the Respondent to support this. No submissions or evidence has been put on by the Respondent to meet the substance of the s.340 claim in relation to health and safety.

[19] It appears to me that there is a real issue to be dealt with pursuant to s.340. I consider that the merits of the application give weight to the existence of exceptional circumstances.

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

[20] This factor was not addressed and has not been taken into account.

Conclusion

[21] Having considered all of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application for a further period for lodging of the application is granted. An Order (PR573979) in these terms will accompany this decision.

DEPUTY PRESIDENT

Appearances:

K. Lawler, solicitor with L. McMillan, Applicant.

R. Wade, solicitor with E. Chamizo for the Respondent.

Hearing details:

2015

Telephone Hearing:

November 2.

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<Price code A, PR573973>