Matthew McCue v Downer EDI Mining Pty Ltd

[2015] FWC 906

[2015] FWC 906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Matthew McCue
v
Downer EDI Mining Pty Ltd
(U2015/108)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Mr Matthew McCue alleged that the termination of his employment by Downer EDI Mining Pty Ltd was unfair.

[2] Mr McCue’s employment with Downer EDI ended on 16 December 2014 and he did not lodge his application until 8 January 2015. The unfair dismissal application was therefore not made within 21 days of the date of the dismissal

[3] The application was listed for an extension of time hearing.

[4] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances, the Commission must have regard to the following criteria.

(a) the reason for the delay;

[5] Mr McCue gave evidence that he did not receive written confirmation of the termination of his employment until 19 December 2014. However, in his evidence he accepted that he was verbally told that his employment was to end on 16 December 2014. So much was confirmed in the letter of 19 December 2014. That letter merely confirmed the dismissal and did not change the date the termination took effect.

[6] Mr McCue gave evidence that he made an application to the Fair Work Ombudsman. Mr McCue said that he lodged documents with the Ombudsman on 6 January 2015 and on 8 January 2015 he received a voice mail message from the Ombudsman that the application needed to be submitted to the Fair Work Commission and the person was trying to transfer the file to the Commission. It is not clear how Mr McCue said he lodged his application with the Ombudsman. Mr McCue said he did this online.

[7] When you visit the Ombudsman’s website it has a section on ending employment. If you click on that, you can select “unfair dismissal.” It then provides the following information:

Unfair dismissal

Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.

The Fair Work Commission (the Commission) ( decides on cases of unfair dismissal.

Applying for unfair dismissal

Employees have to apply to the Commission within 21 days after their dismissal takes effect.

[8] The unfair dismissal application form is not available on the Ombudsman’s website. It can only be accessed from the Commission’s website. The Ombudsman’s website alerts the viewer to the 21 day time limit and directs viewers to the Commission website. Mr McCue did not provide any other evidence to support his claim that he had lodged his application with the Ombudsman on 6 January 2015. As there is no capacity to lodge the form electronically on the Ombudsman’s site, if he lodged by fax or email he would have evidence of doing so. If he lodged in person he would have been told on the day that the document should be lodged at the Commission. I also note that the application filed by him on 8 January 2015 is dated 8 January 2014.

[9] Mr McCue also gave evidence that he was suffering depression. He said he was in shock as a result of his dismissal and this exacerbated his illness. Despite being advised by the Commission correspondence that if he wished his medical condition to be taken into account, he needed to provide a medical certificate or a medical report, Mr McCue did not tender any medical evidence to support this submission.

[10] Mr McCue also made reference to the time of the year the dismissal occurred.

[11] Mr McCue also gave evidence that he did not know about his unfair dismissal rights.

[12] It is not unusual for employees to confuse the Ombudsman and the Commission. However the information of the Ombudsman’s website clearly directs employees to the Commission website. Mr McCue should have been aware on 6 January 2015 that he had 21 days to lodge his application and that he need to take action immediately.

[13] I accept that Mr McCue was a shocked at this dismissal but that is not unusual. I am unable to conclude that Mr McCue suffered such a change in his medical condition as a result of his dismissal that it contributed to the delay.

[14] It is not unusual for employees to be unaware of their unfair dismissal rights.

[15] Mr McCue’s explanation for the delay in lodging his unfair dismissal application does not weigh in favour of granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[16] Mr McCue was aware of the dismissal when it took effect. I do not accept that he was not aware of his dismissal and the reasons for the dismissal until he received the letter on 19 December 2014. Mr McCue had the full 21 days to lodge his application. This weighs against the granting of an extension of time.

(c) any action taken by the person to dispute the dismissal;

[17] Mr McCue asked for a letter explaining his dismissal. He was also expecting a call from his direct manager.

[18] I consider this criterion to be neutral.

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

[19] Downer EDI submitted that it would be prejudiced as it will now be required to expend time and resources to defend the claim and given the workforce work on a fly in fly out basis the loss of employee time may affect the production of the entire mine.

[20] I do not consider that the prejudice suffered by Downer EDI weighs against the granting of an extension of time. This criterion is neutral.

(e) the merits of the application;

[21] Mr Michael Reynolds for Downer EDI gave evidence about the reasons for the termination. It was said that Mr McCue was terminated for serious misconduct. Mr McCue denied that he engaged in misconduct. Given that the facts in this matter are disputed and the evidence was not tested I am not able to make any findings about the merits of this case or the strength of Mr McCue’s claim. As Mr McCue’s case is not unarguable this criterion weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[22] This criterion is neutral.

Conclusion

[23] I am not satisfied that there are exceptional circumstances warranting an extension of time. I am not satisfied that Mr McCue’s explanation for the delay establishes exceptional circumstances. This is not a case where the strength of Mr McCue’s case is sufficient to outweigh his lack of a reasonable explanation for the delay. As such, Mr McCue’s application for an extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

M. McCue on his own behalf.

J. Goos on behalf of the Respondent.

Hearing details:

2015.

Melbourne, Brisbane and Perth, by video link:

4 February.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR560810>