Miss Holly Baker v Rio Tinto Bell Bay Aluminium
[2021] FWC 1298
•12 MARCH 2021
| [2021] FWC 1298 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Holly Baker
v
Rio Tinto Bell Bay Aluminium
(U2021/1196)
DEPUTY PRESIDENT MASSON | MELBOURNE, 12 MARCH 2021 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application by Miss Holly Baker (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).
[2] The Applicant asserts in her Form F2 application that her employment as a Process Operator with Rio Tinto Bell Bay Aluminium (the Respondent) was terminated with effect from 1 June 2020. The unfair dismissal application was lodged on 15 February 2021.
[3] Section 394(2) of the Act states 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 Fair Work Commission (the Commission) allows pursuant to s 394(2). The period of 21 days ended at midnight on 23 June 2020. The application was therefore filed 237 days outside the 21 day period expired. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.
[4] A hearing to deal with the extension of time application was set down for 11 March 2021. At the hearing the Applicant appeared and gave evidence on her own behalf. Mr Tom Klaasen (Employee Relations Specialist, Rio Tinto) appeared for the Respondent.
[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may 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 can be considered exceptional.2
[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Background and Evidence
[9] The Applicant commenced employment with the Respondent on 1 January 2019 as a Process Operator and was initially engaged on a continuous shift roster consisting of 12-hour day and nights shifts in the Potroom at the Respondent’s Bell Bay Smelter. She was employed under the terms of the Bell Bay Smelter Safety Net Agreement 2014 3.
[10] On 6 February 2019 the Applicant suffered a medical episode while on shift following which she was taken to the site security centre and then via ambulance to the local medical centre. On 1 March 2019 the Applicant commenced restricted duties in the Potroom, which consisted of working half-days, as she was still suffering continued medical symptoms. On 25 April 2019, the Applicant collapsed while working in the Potroom following which she took an extended period off work between 1 May – 29 July 2019. 4
[11] Between 30 July 2019 and 1 June 2020, the Applicant was provided with temporary office based duties on reduced hours. In the same period the Applicant accessed paid and unpaid leave entitlements and was also extended discretionary paid leave by the Respondent to cover various absences. 5
[12] A number of medical reports were sought and/or provided in relation to the Applicant’s medical condition over the period between her initial medical episode in February 2019 and the termination of her employment. Those reports were as follows;
• 14 June 2019 – Dr T Mooney (Neurologist). 6
• 10 September 2019 – Dr T Mooney in a further medical report stated that the Applicant was not medically fit for her unrestricted pre-incident role of Process Operator due to a neurological condition. 7
• 29 October 2019 – Dr Tim Mooney in a further report confirmed his advice provided in his earlier 10 September 2019 report that the Applicant was unable to return to the Potroom. 8
• 7 January 2020 – Dr Lauren Giles (Neurologist) opined that she thought it would be unsuitable for the Applicant to return to her previous role for the foreseeable future due to a neurological condition. 9
• 21 April 2020 – Dr Lauren Giles confirmed in an email to the Respondent that the Applicant’s medical condition remained unchanged as did Ms Giles’ recommendation regarding the Applicant’s work capability. 10
[13] On 11 May 2020 the Respondent wrote to the Applicant stating that based on the medical information available, it had formed the view that she was unable to safely perform the inherent requirements of the role for which she was employed. Further, that the Respondent was unable to offer any alternative roles and that as a consequence was considering the termination of the Applicant’s employment. The Applicant was invited to respond to the matters raised in the 11 May 2020 correspondence and attend a further meeting. 11 The Applicant responded on 20 May 2020 following which a meeting was held on 25 May 2020.
[14] On 1 June 2020 the Respondent issued the Applicant with a letter terminating her employment on the basis that she was unable to safely perform the inherent requirements of her role of Process Operator. 12
[15] On 9 June 2020 the Applicant undertook a further brain MRI. No abnormalities were noted in the report. 13
[16] On 17 June 2020 the Applicant’s representative filed a Form F2 Unfair Dismissal Application 14 (the First Application) on her behalf following which the matter was listed for an initial telephone conciliation conference on 9 July 2020 before a Fair Work Commission conciliator15. The Respondent filed its Form F3 response on 30 June 2020.16
[17] On 8 July 2020 the Applicant’s representative filed a Form F50 Notice of discontinuance in respect of the First Application. 17
[18] Between the filing of the Notice of discontinuance on 8 July 2020 and the end of August 2020 the Applicant pursued a total and permanent disablement (TPD) claim with her superannuation fund. She did so by obtaining legal advice, then obtaining, completing and submitting relevant TPD claim forms with her superannuation fund. While unable to specify the exact timetable, Ms Baker confirmed that by the end of August 2020 she had been advised by her superannuation fund that she was ineligible for TPD as she had capacity to perform some work.
[19] On 20 November 2020 the Applicant obtained a medical clearance from Dr Mooney to undertake work, including the operation of machinery including forklifts, at Timberlink. 18 The Applicant commenced employment with Timberlink on 23 November 2020.
[20] On 15 February 2020 the Applicant filed a further Form F2 Unfair Dismissal Application 19 (the Second Application).
Reason for the delay
[21] The Act does not specify what reason for delay might tell in favour of granting an extension of time however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.20
[22] The Applicant’s explanation for the delay in lodging her application can be summarised as follows;
• The First Application was filed within the statutory 21 day period but was subsequently discontinued on advice of her legal representative who she states had advised that a better path for her would be to pursue a TPD insurance claim with her superannuation fund.
• Following the Notice of discontinuance filed in respect of the First Application on 17 June 2020, the Applicant then spent several weeks pursuing, ultimately without success, a TPD claim with her superannuation fund. This process was exhausted by the end of August 2020.
• From September 2020 until 23 November 2020 the Applicant was focussed on obtaining alternate employment which she was successful in, commencing employment with Timberlink on 23 November 2020.
• Between 23 November 2020 and the filing of the Second Application on 15 February 2021 the Applicant states that she was dealing with mental health issues arising from the loss of her employment with the Respondent and the uncertainties of her medical conditions that emerged in 2019.
[23] It is clearly apparent that the Applicant understood she was required to file an unfair dismissal application within the 21 day period following her dismissal. This is evident from the First Application which was filed within time. The Applicant’s reasons for the discontinuance of the First Application lay in her claimed acceptance of advice from her legal representative that a TPD insurance claim path was a better option for her. While her former representative was not called to give evidence, there is no suggestion by the Applicant of representative error on the part of the Applicant’s former lawyer notwithstanding the TPD claim was ultimately unsuccessful. Advice as to the most appropriate path to pursue was apparently proffered and accepted by the Applicant resulting in her decision to discontinue the First Application. That is unremarkable in the circumstances and not telling of representative error.
[24] I am not persuaded that the Applicant’s decision to discontinue the First Application and pursue a TPD claim provides a reasonable explanation for that part of the delay in the filing of the Second Application in the period up till the end of August 2020. It is also necessary however for me to consider the further period of the delay between 31 August 2020 and 15 February 2021 when the Applicant filed the Second Application.
[25] Beyond the above-referred delay related to pursuit of the TPD claim, which process was exhausted by end of August 2020, the explanation offered by the Applicant attributed the further delay up to 15 February 2021 to a combination of her attempts to secure alternate employment and the mental health consequences of dealing with both her dismissal by the Respondent and her undiagnosed medical condition. I find these reasons unconvincing for the reasons that follow.
[26] While the Applicant spoke of mental health issues she was dealing with in the aftermath of her dismissal, there was no medical evidence that indicated she was debilitated to the point of being unable to prepare and file an application for unfair dismissal. Nor were those mental health issues apparently so severe as to prevent her filing the First Application or pursuing her unsuccessful TPD claim. Furthermore, she was capable of and focussed on obtaining alternate employment, which to her credit she was successful in securing in November 2021. The Applicant’s actions in the wake of her dismissal by the Respondent speak to an ability to engage in activities that required a degree of cognitive capacity. I am not satisfied the reasons advanced by the Applicant provide a reasonable explanation for the delay between the end of August 2020 and the filing of the Second Application on 15 February 2021.
[27] Having regard to the above, I do not accept the explanation provided by the Applicant as having prevented her from lodging the application on time or at a time earlier than the date on which this application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[28] The Applicant confirmed in her evidence that she was notified of her dismissal on the 1 June 2020 by way of the letter of termination. Consequently, she had the full 21 days within which to file her application. In the circumstances, I regard this as a neutral consideration.
Action taken to dispute the dismissal
[29] The Applicant acknowledged that the only action taken by her in disputing the dismissal prior to her filing the Second Application was that of her filing the discontinued First Application. To the extent the Applicant challenged her dismissal by way of the First Application I accord it limited weight in circumstances where that application was subsequently discontinued.
Prejudice to the employer
[30] The Respondent contends that it will suffer some prejudice should the application for an extension of time be granted. In making this submission they point to; the length of the delay, that they have now had to expend resources in responding to two unfair dismissal applications by the Applicant and that the First Application was discontinued after the Respondent went to the trouble of preparing a response by way of its Form F3. The Applicant made no submissions on the question of prejudice.
[31] I accept that in circumstances where the Respondent has now confronted two unfair dismissal applications, it will suffer some limited prejudice in terms of preparing and responding to the Second Application after the First Application was discontinued. This weighs against a conclusion that there are exceptional circumstances.
Merits of the application
[32] The Act requires me to take into account the merits of the application in considering whether to extend time.
[33] The Applicant contends that she was dismissed on medical grounds without a fitness for work assessment having been completed prior to her dismissal, thus rendering the dismissal unfair. She further states that while she became unwell in 2019 and may have had early stage MS symptoms, she has still not been diagnosed at this point in time, has been cleared to perform manual work and machinery operation, has not heard from her specialist in 8 months and remains 100 percent healthy. The Applicant also refers to the medical clearance obtained on 20 November 2021 which indicates no medical condition that would have justified her dismissal by the Respondent
[34] The Respondent says in reply that it had a valid reason to dismiss the Applicant based on contemporaneous medical advice as to her capacity to perform her normal role at the time of the dismissal, that she was afforded procedural fairness through the process and that no other factors tell in favour of unfairness.
[35] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[36] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
[37] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
[38] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ms H. Baker on her own behalf
Mr T. Klaassen for the Respondent
Hearing details:
2021
Melbourne
March 11
Printed by authority of the Commonwealth Government Printer
<PR727653>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
2 Ibid.
3 AE408060
4 Form F3 dated 23 February 2021, Court Book at pg. 38
5 Ibid
6 Medical Report of Dr T Mooney, dated 14 June 2019, at Court Book pg. 1
7 Medical Report of Dr T Mooney, dated 10 September 2019, Court Book at pg. 3
8 Medical Report of Dr T Mooney, dated 29 October 2019, Court Book at pg. 7
9 Medical Report of Dr Lauren Giles, dated 7 January 2020, Court Book at pg. 9
10 Email from Dr Giles to Ms. Dianne Duggan dated 21 April 2020, Court Book at pg. 11
11 Letter from Respondent to the Applicant dated 11 May 2020 titled ‘Your employment with Rio Tinto Aluminium (Bell Bay) Limited, Court Book at 51
12 Letter of Termination dated 1 June 2020, Court Book at pg. 47
13 Diagnostic Imaging Report dated 9 June 2020, Court Book at pg. 81
14 Form F2 dated 17 June 2020, Court Book at pg. 13
15 Notice of Listing, Court Book at pg. 21
16 Form F3 dated 30 June 2020, Court Book at pg. 22
17 Form F50 dated 8 July 2020, Court Book at pg.30
18 Medical Certificate issued by Dr T Mooney dated 20 November 2020, Court Book at pg. 80
19 Form F2 dated 15 February 2020, Court Book at pg. 32
20 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters[2018] FWCFB 901 at [39]
0
1
0