Mr Alan Anderson v Kestrel Coal Pty Ltd
[2011] FWA 6862
•12 OCTOBER 2011
[2011] FWA 6862 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Alan Anderson
v
Kestrel Coal Pty Ltd
(U2011/9116)
COMMISSIONER SPENCER | BRISBANE, 12 OCTOBER 2011 |
Unfair dismissal application -Extension of time
Introduction
[1] Mr Alan Anderson (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), claiming he was unfairly dismissed from his employment with Kestrel Coal Pty Ltd (the Respondent), from the Kestrel Mine, near Emerald.
[2] In accordance with s.394 (2) of the Act, the application for relief must be made within 14 days after the dismissal took effect. This determination relates to the Respondent’s jurisdictional objection that the application was lodged out of time and whether an extension of time should be granted pursuant to s.394 (3) by Fair Work Australia (FWA) to allow the application to proceed.
[3] The parties agreed that the Applicant’s employment commenced on 10 November 2008 and was terminated on 12 May 2011. The application for unfair dismissal remedy was filed with FWA on 22 June 2011, 27 days after the 14 day statutory time limit lapsed on 26 May 2011.
[4] The parties agreed to have the jurisdictional matter determined on the basis of the written submissions, without a hearing. Directions were issued on 19 August 2011 for the filing of final materials in relation to the jurisdictional matter by 16 September 2011.
[5] Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.
Legislation
[6] FWA is required to consider whether an application is made within time, as well as whether the Applicant was protected from unfair dismissal by the legislation, prior to considering the merits of the application. Section 394 (3) of the Act authorises FWA to extend the time for making the application if it is satisfied that there are exceptional circumstances, taking into account specific matters.
[7] The relevant legislative provisions are set out below:-
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
…
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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
(c) any action taken by the person to dispute the dismissal; 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.
396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
…
Background
[8] The Applicant was employed by the Respondent as an Operator/Maintainer. The Respondent contended that termination of the Applicant’s employment was a result of a workplace incident which occurred on 26 April 2011. The incident involved the Applicant, and other employees in his work crew, allegedly breaching the Respondent’s safety procedures. The procedures required a “Job Hazard Analysis” (JHA) to be completed before undertaking their shift. The JHA is intended to identify any risks associated with the work, and document that employees have detailed a plan of action on how to proceed with the work. The employees, including the Applicant, did not complete the JHA prior to commencing the work, as required. The Applicant submitted that the employees did, however, have a discussion and made decisions about how the work was to be done, which was in line with the usual method of completing this type of work.
[9] During their shift an incident occurred which involved the Applicant removing a six inch clamp from the pressurised side of an isolated air line gate valve. The Applicant failed to comply with the company’s isolation procedure, when he removed the retaining clamp from the pressurised side of the isolated valve. This action resulted in an employee being knocked to the ground and exposed the employees to risk of injury.
[10] On 27 April 2011 the Applicant provided a statement about the incident, to Mr Barry Ormond, Superintendent. In the statement he did not dispute he had breached the safety procedures. The Applicant then falsely declared to Mr Ormond, that he had completed the JHA prior to commencing work. The Applicant provided evidence that he “falsely told him (Mr Ormond) I had completed the JHA before work on the pipe range extension started”. 1 As a result of the incident the Applicant was issued with a Final Written Warning for being “in breach of acceptable safe practice”.2 The Respondent became aware, on or about 3 May 2011, that the JHA had not been done prior to the employees commencing work when discrepancies between the employees’ statements became evident. The Applicant was stood down pending an investigation. The Applicant admitted he was dishonest about the timing of the completion of the JHA. The Applicant’s employment was subsequently terminated on 12 May 2011.
[11] The Applicant was issued with a letter, via which his employment was terminated for the reasons cited as:
“Falsifying a Safety Procedure document (JHA) by doing a JHA after an Incident and claiming it was done prior to the job.
Colluding, by acting together with another employee secretly to provide fraudulent information to an investigation for a deceitful purpose.
Coercing and attempting to influence a trainee operator to collude to act together to provide fraudulent information to an investigation for a deceitful purpose.” 3
[12] The letter also stated:
“Rio Tinto has a Fair Treatment Policy. If you feel that this process or decision has been unfair. I encourage you to access the Policy with 7 days. A copy of the policy is attached.” 4
Submissions of the Applicant
[13] The Applicant submitted that the reason for the delay in filing his application with FWA was due to a “combination of factors”. 5 The Applicant gave evidence in relation to his state of mind following the dismissal. The Applicant stated that:
“Following my dismissal, I was unsure what I should do. I was in two minds about whether I should challenge my dismissal. I knew I had given a false account about the completion of the JHA to the respondent which was wrong, but felt the description of my conduct as “fraudulent” and being of a “deceitful purpose” was exaggerated. I had many things running through my head. I was concerned about my future job prospects in the mining industry; my ability to meet ongoing financial commitments such as my home mortgage; and finding new accommodation as I had to move out of Kestrel Mine accommodation which I was then occupying - my own home had been damaged in the 2010-2011 Emerald floods. I decided to seek legal advice, and sometime during the week commencing 23rd May 2011 I contacted Solicitors, Anne Murray & Co for an appointment.” 6
[14] The Applicant submitted that the reason for the delay in filing his application was because he was unsure of whether he had “worthwhile grounds meriting the bringing of an application.” 7 The Applicant submitted that this caused the delay in seeking legal advice. The Applicant submitted he telephoned Anne Murray & Co Solicitors, “some time during the week beginning 23rd May 2011,” which was, on the most favourable count, 11 days after his dismissal from the Respondent, on 12 May 2011. The Applicant contended that he was also unaware of the time limit of 14 days for filing the application for unfair dismissal until he was able to attend the appointment he had made with a solicitor on 9 June 2011. The Applicant submitted that not knowing whether his case had merit, combined with the fact that he was unaware of the time limit of 14 days for filing the application, created a circumstance which was more than ignorance of the statutory time frame. The Applicant submitted:
“Whilst it is accepted that mere ignorance of the statutory time frame is not an exceptional circumstance (see NULTY’S case at paragraph [14]), it is submitted that more exists here. Not only was the applicant ignorant of the time limit for filing his application, he was ignorant, until receiving legal advice, of whether he had worthwhile grounds meriting the bringing of an application.” 8
[15] The Applicant submitted that he telephoned the Respondent “during the week commencing Monday, 30th May 2011” 9 and spoke with Ms Rachel Borger, Senior Adviser Human Resources at Kestrel Mine. The Applicant stated he informed Ms Borger he was seeing a solicitor “next week”.10 The Applicant submitted further that he asked Ms Borger for an “extension of time to appeal for accessing the Fair Treatment Policy adopted by the respondent”.11 The Applicant submitted that Ms Borger said “no worries”.12
[16] The Applicant claimed that he relied on the comments of Ms Borger, as granting an extension of time to challenge his dismissal under the dispute resolution procedure of the Kestrel Coal Workplace Agreement 2009 (the Agreement).
[17] Clause 18 of the Agreement provides:
“Dispute Resolution Procedure
Employees are responsible for attempting to resolve their own workplace issues as quickly as possible. Through building good working relationships, managers once removed should make themselves aware of any potential issues and should also seek to resolve them quickly.
If an issue is still unresolved the matter should be resolved using the Kestrel Dispute Resolution Policy.
If after using the Kestrel Dispute Resolution Policy, a dispute remains which arose out of the terms of this agreement it may be referred to the Australian Industrial Relations Commission for mediation or conciliation.
If the issue concerns Kestrel Policy, dismissal, discrimination or harassment and is unable to be resolved by the application of the policy, the employee may progress their issue to the Managing Director. Issues involving the General Manager may go directly to the Managing Director.
If the issue is about dismissal, discrimination or harassment, the employee may take the issue to the appropriate outside tribunal and the company, subject to prior approval from the Managing Director, will assist in finding legal representation and meet reasonable travel, accommodation and legal costs.”
[18] The letter of termination set out that the Applicant had 7 days in which to seek a review of the dismissal decision, via the internal procedures.
[19] The Applicant stated that he sought to engage the dispute resolution provisions of theAgreement, on this basis his solicitors, wrote to the Respondent on 15 June 2011. The Applicant stated the Respondent refused to engage in the dispute resolution process provided in the Agreement, on the grounds that the Applicant had not taken the opportunity to do so within 7 days of his termination.
[20] The Applicant argued further, that he understood that there was a requirement for him to use the dispute resolution procedure in the Agreement before seeking outside intervention. Therefore he initiated this internal process first and this caused one of the reasons for the delay in filing his application for unfair dismissal remedy with FWA.
Submissions of the Respondent
[21] The Respondent submitted that the reasons provided by the Applicant, that he was unaware of whether his case was meritorious, and his ignorance of the 14 day time limit for filing his application with FWA, could not be characterised as ‘exceptional circumstances’. The Respondent submitted that those matters are typical of the nature of concerns, which are likely to occupy the mind of any person who had been recently dismissed. 13
[22] The Respondent submitted that when the Applicant telephoned Ms Borger, Senior Adviser Human Resources, it was between the dates of 31 May and 2June 2011 and therefore, it was already between 19 and 21 days after the termination of his employment, and between 5 and 7 days outside the statutory time frame to make an application for unfair dismissal. The Respondent argued that the reliance on Ms Borger’s response should not, therefore, be considered as a contributing factor explaining the reason for the delay in meeting the 14 day lodgement requirement.
[23] The Respondent, provided evidence in relation to the telephone call between the Applicant and Ms Borger. Mr Borger in relation to this call stated that:
“Sometime between Tuesday 31st May and Thursday 2nd June 2011 Mr Anderson phoned me. I remember this as I was facilitating some training that I had to remove myself from to take the call.
Mr Anderson said words to the effect that: “I’m thinking I should see a solicitor, what do you think? I responded by saying, words to the effect that: “That’s up to you, you’re are able to seek what ever support and advice you want to, what’s made you come to this”. Mr Anderson then said words to the effect “Everyone is telling me I should, I don’t know, what do you think, the only thing is, I can’t get an appointment until the 9th June, is that ok” I replied by saying words to the effect of “no worries”.
I was unaware that Mr Anderson was taking my response as approval for a time extension. In my mind I was reassuring him that he did have a right to seek legal advice and if he wanted to do so he should do so.” 14
[24] The Respondent submitted that at no time did their conduct, delay or prevent the Applicant from complying with the 14 day lodgement requirement under the Act. Further it was not until after the 14 day period had already lapsed, that the Applicant took any steps to advise, any personnel of the Respondent, that he intended to appeal the decision, to dismiss his employment.
[25] The Applicant had been made aware in the termination letter that he had a period of 7 days to review the dismissal decision, via the internal mechanisms.
Consideration
[26] The following assessment of each of the provisions in s.394 (3) of the Act, is provided; to examine whether exceptional circumstances exist to allow for an extension of time. The onus rests with an applicant to demonstrate exceptional circumstances to justify FWA to exercise the discretion to extend time.
s.394 (3) (a) the reason for the delay
[27] The Applicant submitted that the reason for the delay in filing his application was due to the fact that he did not know whether his case had merit, combined with the fact that he was unaware of the time limit of 14 days for filing the application. The Applicant also submitted, that his understanding was that the dispute resolution procedure in clause 18 of the Agreement was to be exhausted, before seeking the assistance of FWA.
[28] The Respondent submitted that the reasons provided by the Applicant, that he was unaware of whether his application had merit, or that there was a 14 day time limit for filing his application with FWA, could not be characterised as ‘exceptional circumstances’. The Respondent submitted further that the Applicant’s attempt to invoke the dispute resolution provisions under the Agreement, was made after the statutory time frame to file an application had already lapsed, and should, therefore, not be considered as a contributing factor explaining the reason for the delay.
[29] The Applicant’s submissions do not adequately explain the delay, in relation to the initial critical 14 day period. At best he contacted his solicitor on the eleventh day after the dismissal. However, no specific information was provided by the Applicant’s solicitor on the timing of the contract or meeting with the solicitor.
s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[30] The Applicant became aware of the dismissal on the date it took effect on 12 May 2011, as per the letter of termination. The reasons for the delay are not commensurate with the lapse of time. The Applicant ignored the 7 day timeframe for the internal review, and then it was only after the 14 day timeframe that he took action.
s.394(3)(c) any action taken by the person to dispute the dismissal
[31] The first tangible step the Applicant took to dispute the decision was in the week commencing 23 May 2011. The Applicant could not recall and did not provide a specific date on which he sought the legal advice. However, as set out, at the earliest, this was 11 days after his dismissal from the Respondent, and on the least favourable count, 15 days later.
[32] The Applicant submitted he sought to invoke the dispute resolution procedure of the Agreement, and sought an “extension” of the time frame to do so, on 31 May 2011, in his telephone conversation with Ms Borger on this date. This, on his submission, was between 19 and 21 days after the termination of his employment and between 5 and 7 days after the 14 day time limit to lodge an application with FWA had lapsed.
[33] The Respondent submitted that it was made clear to the Applicant in the correspondence, that he could seek to have his dismissal decision reviewed internally provided that he took up this offer within seven days. The dismissal letter dated 12 May 2011, provided to the Applicant, stated that “if you feel that this process or decision has been unfair, I encourage you to access the Policy (Fair Treatment Policy) within 7 Days”. 15 The Applicant was therefore on notice of this time frame.
[34] The Respondent submitted that following his conversation with Ms Borger whereby he states he sought an extension to the 7 day timeframe for internal review, it then took the Applicant an additional 13 to 15 days to make a formal written request to have the termination decision reviewed by the Respondent. The Respondent submitted that it was not until 15 June 2011 that a formal request to review the termination was received, which was 34 days after the dismissal decision and 20 days after the 14 day time period had lapsed.
[35] The Applicant’s solicitor had written to the Respondent on 15 June 2011, seeking the internal review of the decision. The Respondent wrote back to the Applicant on 20 June 2011 stating:
“We acknowledge receipt of your correspondence dated 15 June 2011.
Your client, our erstwhile employee Mr Anderson, was provided with an opportunity to dispute the termination of his employment within 7 days of that decision. This avenue for resolution of any concerns surrounding the fairness of the dismissal was provided for in writing on Friday 12 May 2011 in his termination letter. Mr Anderson did not seek to avail himself of this opportunity within the timeframe provided. Your correspondence does not outline any sufficient mitigating event or circumstances that would have prevented Mr Anderson from doing so within the said timeframe.
Given the opportunity to seek resolution via Internal processes has expired we no longer consider Mr Anderson an employee for the purposes of applying the provisions of the Kestrel Coal Workplace Agreement 2009. As such we reject any requests to apply company policy regarding dispute resolution and support for legal representation.” 16
[36] The Applicant’s application to FWA was filed 2 days later; 27 days after the 14 day time period had lapsed.
s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)
[37] The Applicant submitted that he did not envisage any prejudice to the Respondent would arise if the extension was to be granted. It was submitted that the incident was recent and the subject of a full investigation by the Respondent
[38] The Respondent stated that the Applicant had not demonstrated that ‘exceptional circumstances’ existed, and therefore, the Respondent submitted that it was not necessary to determine whether it had or would suffer any prejudice. The Respondent submitted that, in the alternative, the cost and inconvenience of defending the Application lodged out of time, would cause financial prejudice. The Respondent cited Brodie Hanns v MTV Publishing Ltd 17 and quoted Marshall J; ‘[the Respondent] should not be put to the cost and inconvenience of defending an application lodged out of time unless the interests of justice so dictate’.18This matter has been considered together with the reasons for the delay and the merits of the matter, as to whether such justify an extension that should progress the matter to a hearing. The Respondent was not formally aware of the Applicant seeking to review the matter until receipt of the solicitors correspondence on 15 June 2011.
s.394(3)(e) the merits of the application
[39] The Applicant’s employment was terminated for being in “breach of acceptable safe practice” 19 in relation to the incident that occurred on 26 April 2011, and for falsely declaring to the Respondent that he completed the JHA prior to commencing the work. The Applicant admitted that he breached the Respondent’s acceptable safe work practice and could not provide a reason as to why he did. The Applicant also admitted that he was dishonest about the timing of when he completed the JHA, when he told his supervisor it was completed before the work was commenced, when the Applicant had completed it after the breach of acceptable safe practice. Given the concessions made by the Applicant regarding the preparation of the JHA after the fact and the reversal of his evidence regarding timing of this, I consider his case was limited merit.20
s.394(3)(f) fairness as between the person and other persons in a similar position
[40] The Applicant submitted this factor was not a relevant consideration in this case.
[41] The Respondent argued that granting an extension of time for the Applicant’s application would encourage other applicants to ignore the time limits imposed by the Act, in circumstances where exceptional circumstances have not been demonstrated. The Respondent also argued further that a delay of 27 days is a longer period of time, than other cases which have been before FWA, where an extension of time has not been granted. Parties should be able to place certainty on time limits.
Conclusion
[42] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 21 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)22 as set out below:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
[Mann v Minister for Immigration and Citizenship [2009] FCAFC 150]”
[43] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 23
[44] The criteria in s 394 (3) have been considered in relation to this matter. The steps taken by the Applicant to dispute the dismissal are recognised. However the steps do not equate to the period of the delay. There is a lack of explanation of the delay, relating to at least the first 11 days of the 14 days and for periods thereafter prior to filing the application.
[45] The reasons provided, regarding, the delay in lodgement, being questioning the merits of his application, the ability to meet with lawyers and his ignorance of the 14 day time frame, do not justify all of the period of the delay. In addition the events that occurred; in relation to the lodgement, occurred after the statutory time frame had lapsed. The 14 day time limit is brought into focus when the Applicant was aware that he needed to review the decision within 7 days with the Respondent.
[46] Whilst I have not attributed significant weight to the element of prejudice to the Respondent it is considered that to progress the case after the delay without legitimate reasons for the entire period of the delay would cause unnecessary prejudice to the Respondent.
[47] In addition, a consideration of the element of the merits of the case (on the material as presented in these submissions), particularly the Applicant’s reversal of his evidence, weighs against the Applicant.
[48] The Applicant was alerted in the dismissal letter, that he had 7 days in which to have the termination decision internally reviewed. This should have put him on notice to attend to the matter. The first step the Applicant took was when he sought legal representation, which was either after or at the end of the 14 day time limit. The legal representatives of the Applicant did not provide the specific date of the meeting. The request for an extension of time to have an internal review of the termination, occurred after the Respondent’s 7 day time frame had lapsed and after the 14 day statutory time frame. Whilst the Applicant may have considered a representative of the Respondent had confirmed the extension of the internal review time frame, he did not make the formal request to the Respondent for the review of the decision for another 12 to 15 days after this telephone call to the Respondent’s representative. This was 20 days after the 14 day time period had lapsed. No adequate reasoning for these delays was provided.
[49] It is acknowledged that a delay of 5 days was incurred whilst the Applicant awaited the Respondent’s response to his written request for an internal review. The potential for legal representative error, as a reason for the delay has been considered; however it is emphasised that the solicitors providing the submissions on behalf of the Applicant have not advanced such. 24 In any event, even if such a reason was taken into account, at the time the correspondence was written on the Applicant’s behalf to the Respondent (in lieu of filing the application), the 14 day period had already lapsed by 20 days. It is expected that when he consulted with his solicitors they should have made him aware of the 14 day time frame, even if he had conveyed that he had an extension to the allowed period for the internal review.
[50] However, on the material presented, this case is not analogous to the facts in M N Robinson v Interstate Transport Pty Ltd 25, where the Full Bench concluded that the significance of the representative error was diminished. In addition it cannot be determined as found in D Clark v Ringwood Private Hospital (Clark’s Case)26 that the Applicant was blameless in the delay in filing. The Applicant in the current case was intent on securing the internal review of the dismissal rather than on filing an application with FWA.
[51] On a consideration of all the material, exceptional circumstances have not been established to justify the failure to file the application, during the statutory time limit, the application is therefore dismissed pursuant to s394 (3). I Order accordingly.
COMMISSIONER
1 Affidavit of the Applicant, [16].
2 “First and Final Warning Letter” to the Applicant, dated 29 April 2011.
3 “Termination of Employment Letter” to the Applicant, dated 12 May 2011.
4 Ibid.
5 Submissions of the Applicant, [5.1].
6 Affidavit of the Applicant, [20].
7 Submissions of the Applicant, [5.1.2].
8 Submissions of the Applicant, [5.1.2].
9 Affidavit of the Applicant, [21].
10 Affidavit of the Applicant, [20].
11 Affidavit of the Applicant, [20].
12 Affidavit of the Applicant, [20].
13 Submissions of the Respondent, [5.2].
14 Affidavit of Ms Rachel Borger, [2] and [3].
15 “Termination of Employment Letter” to the Applicant, dated 12 May 2011.
16 Affidavit of the Applicant, Annexure “E”.
17 (1995) 67 IR 298, [300].
18 Ibid.
19 “First and Final Warning Letter” to the Applicant, dated 29 April 2011.
20 Kornicki v Telstra - Network Technology Group, Print 3168.
21 Wheelan C, [2009] FWA 1638, [30] and [31].
22 Lawler VP, [2009] FWA 1394.
23 Acton SDP, Cartwright SDP and Thatcher C, [2010] FWA 7251, at [5].
24 Metwally v University of Wollongong (1985) 60 ALR 68.
25 [2011] FWAFB 2728.
26 (1997) 74 IR 413.
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