Mr Bradley Van Moolenbroek v Hastings Deering (Australia) Limited

[2015] FWC 3102

[2015] FWC 3102

FAIR WORK COMMISSION

DECISION

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

Mr Bradley Van Moolenbroek
v
Hastings Deering (Australia) Limited
(U2014/15586)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 MAY 2015

Summary: decision on referral from Full Bench - extension of time - application some 267 days late - whether exceptional circumstances.

[1] Mr Bradley Van Moolenbrook made an application under s.394 of the Fair Work Act 2009 (“the Act”) on 2 December 2014, by which he sought an unfair dismissal in relation to his alleged dismissal from his position as plant operator with Hastings Deering Australia Pty Ltd (“the Company”).

[2] The application was subject to consideration by Deputy President Sams in relation to Mr Van Moolenbroek’s failure to lodge his application within 21 days after the dismissal took place, for purposes of s.394(2)(a) of the Act.

[3] Mr Van Moolenbroek’s application was lodged some 288 days after his dismissal took effect. The dismissal took effect on 17 February 2014 and the application under s.394 of the Act was made on 2 December 2014.

[4] Section 394(3)(b) of the Act empowers the Commission to exercise a conditioned discretion - on the terms set out in s.394(3) of the Act - to allow the application in a further period of time (other than that required under s.394(2)(a) of the Act).

[5] Section 394(3) of the Act provides as follows:

394 Application for unfair dismissal remedy
...
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[6] Deputy President Sams was not satisfied that there were exceptional circumstances affecting the application and did not allow for a further period within which the application could be made. As to Mr Van Moolenbroek’s reason for the delay, the Deputy President found that “he [Mr Van Moolenbroek] firmly believed he had been unfairly dismissed at the time of his dismissal, but chose to do nothing about it for many months.” The Deputy President also found that Mr Van Moolenbroek’s claim that legal advice was required to advance his application was not a sustainable position as legal advice or legal representation is not required to make an application, and his eventual application was made without such advice, in any event.

[7] The Deputy President also found that the “respondent would be exposed to considerable prejudice in the event that an extension of time was granted” and “this factor weighs against the extension of time being granted.”

[8] On review, a Full Bench of the Commission ([2015] FWCFB 1737) found error in the Deputy President’s decision (on the basis that he did not have sound evidence to make a positive finding that the Company was prejudiced by the delay in lodging the application for purposes of s.394(3)(d) of the Act). The Full Bench, on this basis, granted permission to appeal and quashed the Deputy President’s order.

[9] The Full Bench did not review the Deputy President’s finding in relation to the reasons for delay set out above.

[10] Despite this however, and where the application was lodged some 267 days outside the requirements of s.394(2)(a) of the Act, the Full Bench was not satisfied that “the Deputy President’s failure to be satisfied as to the existence of [...] exceptional circumstances would not have been different in the absence of his erroneous finding on the prejudice to Hastings.” 1

[11] The Full Bench did not proceed to re-hear the application itself.

[12] Instead, the Full Bench referred the application to me (under s.607(3)(c)(i) of the Act) for a further, additional hearing as to whether the application made by Mr Van Moolenbroek could be allowed in a further period than that required by s.394(2)(a) of the Act.

[13] It is to that task that I now turn (in the context of a consideration of the requirements of s.394(3) of the Act).

Reasons for the delay (s.394(3)(a) of the Act)

[14] Mr Van Moolenbroek was notified of the dismissal on 17 February 2014. The dismissal took effect that same day - following a show cause meeting (by virtue of the Company’s letter of termination dated that same day).

[15] The Company contended at the time that Mr Van Moolenbroek, because he had knowingly operated an elevated work platform (“EWP”) without authorisation, had failed “to follow BMA Lifesaving rules and Hastings Deering Health and Safety policies and procedures” (sic). This failure was said to amount to a serious breach of Mr Van Moolenbroek’s obligations as an employee and that dismissal was warranted in the circumstances.

[16] Mr Van Moolenbroek claimed that he had completed the necessary training assessment but that the Company had lost his paperwork, and as a consequence he was not issued his necessary authorisation by the Site Senior Executive to operate the EWP. Mr Van Moolenbroek operated the EWP to give effect to a job requirement, but did so without formal authorisation (though he had completed the requisite training). Mr Van Moolenbroek put it this way in his written show cause response to the Company:

“I had completed the training assessment for the EWP but the Training Department lost the paperwork before it was signed off by the SSE. I asked [the Company] supervisors and BMA training staff over twenty times to get my pass-out organised but this never happened. I operated the EWP as I wanted to get the job completed quickly. I was unaware of the consequences to both myself and the contract of operating the equipment without being authorised.
[...]
This incident has provided me with some valuable lessons and I make a commitment to firstly, make myself aware of all the safety requirements in my workplace and secondly to take five before undertaking any work tasks that may vary from my normal routine.”

[17] Mr Van Moolenbroek gave evidence at the hearing. At that time he was dismissed he claimed that he was “very concerned” by the Company’s decision, given its economic impact on him. Mr Van Moolenbroek also believed the dismissal to be “unfair” and “inappropriate” (because he had never been warned about any performance or conduct issues previously and he believed he was legally able operate the EWP under supervision once he had acquired all his accreditation).

[18] Notwithstanding having been “very concerned” by the Company’s conduct in dismissing him, Mr Van Moolenbroek also maintained that he believed he did not have a case against the Company because the Company had maintained that he had been wrong in respect of his claims.

[19] Despite having challenged the Company’s conduct in respect of his training (in his show cause letter) and having been “very concerned” by the Company’s apparent “inappropriate” behaviour towards him (particularly given his unblemished work record) Mr Van Moolenbroek did not make an application at the time of his dismissal, when it was open for him to do so. There was no constraint of any exceptional nature of him seeking out as employees frequently do the necessary public information to make an application. Mr Van Moolenbroek was also still a member of the AMWU at the time of his dismissal, and could have obtained advice at that stage from his union. But he did not do so.

[20] As is evident from my earlier comments, Mr Van Moolenbroek did not make his unfair dismissal application until some 288 days after his dismissal took effect. He did not do so for reason, it appears, that he did not obtain evidence that he had completed the necessary training until October 2014.

[21] That is, Mr Van Moolenbroek claims that his unfair dismissal case only became viable, as it were, upon the emergence in October 2014 of proof of the training he had carried out in relation to EWP operations:

“In early October 2014 one of my work tasks took me to Peak Downs Mine where I had a chance meeting with a BMA staff member.

I discussed my termination [...] with this person and he was able to provide me with my BMA Tracks Training Book which confirms I was certified competent to operate an EWP.”

[22] From this point, Mr Van Moolenbroek believed he had “secured indisputable evidence that [he] was indeed certified to operate an EWP at the time of [his] termination [...]” (though no proof appears to have existed of his pass-out or authorisation notwithstanding).

[23] Yet, despite Mr Van Moolenbroek believing he had secured indisputable evidence to support his application, he did not make his application under s.394 of the Act until 2 December 2014. In respect of this period of delay, Mr Van Moolenbroek contended that:

“It has me a few weeks to determine what rights I have in relation to the termination. This has involved a consultation with a solicitor, but due to the period of unemployment, I am not in a financial position to retain a solicitor.”

[24] Mr Van Moolenbroek’s general evidence at the hearing was that he was unable to make the application earlier as he found accessing the relevant information and forms very difficult and the internet was of little assistance. He had also seen a solicitor, approached his former union and contacted the Fair Work Commission, and asked “a lot of people”. But none of these avenues were of any assistance either.

[25] In the end, Mr Van Moolenbroek’s mother was said to have accessed the required forms and Mr Van Moolenbroek completed these and the application was lodged to the Commission - on 2 December 2014. That is, ultimately Mr Van Moolenbroek did not require any expert or legal assistance to make his application.

When the person first became aware of the dismissal after it had taken effect (s.394(3)(b) of the Act)

[26] Mr Van Moolenbroek makes no claim that he did not become aware of his dismissal until after it had taken effect. Consequently, this particular matter is of neutral significance for the purposes of my overall findings.

Any action taken by the person to dispute the dismissal (s.394(3)(c) of the Act)

[27] Other than by making the application on 2 December 2014, there is no evidence presented by Mr Van Moolenbroek that he took any other steps to challenge his dismissal. That said, the issue was clearly on his mind. This is evident in so far as in early October 2014 – a period of some eight months after the dismissal took effect – Mr Van Moolenbroek was still making enquiries into the issue and was concerned about his treatment by his former employer. But despite this, Mr Van Moolenbroek took no steps to dispute his dismissal in October 2014, but left his application until December 2014.

Prejudice to the employer (s.394(3)(d) of the Act)

[28] The Company contended that it:

“[...] is no longer engaged to provide services at the Peaks Down Mine site in which the Applicant’s position was previously required. The contract for services ceased on 31 January 2015. Accordingly, there are witnesses to this matter who are no longer engaged by [the Company]. Further, the passage of time would have an actual effect on the ability of any witness to recall details of conversations or other circumstances. Materials such as diary notes, notebooks or meeting notes may have been misplaced or inadvertently disposed of during this period.”

[29] The Company’s claims are assertions. There was no direct evidence to support the claims. I do not know whether it has or has not in actuality misplaced important or relevant materials. The Company maintains that it “may have”, but puts it no higher than that.

[30] The Company has not given evidence regarding which of the relevant persons with knowledge of the circumstances of Mr Van Moolenbroek’s dismissal are no longer in its employment and are unable to be accessed. There appears to have been no investigation in this regard.

[31] I observe that it is often the case in unfair dismissal proceedings that persons who are no longer employees of a particular employee provide evidence notwithstanding.

[32] Despite the relatively lengthy period of the delay in lodging application, no evidence of substance has been led that would indicate that the delay in making the application has exposed the employer to demonstrable prejudice.

[33] That said, an absence of prejudice to the Company does not provide a sufficient basis to exercise the discretion under s.394(2)(b) of the Act in Mr Van Moolenbroek’s favour.

The merits of the application (s.394(3)(e) of the Act)

[34] I have not had an opportunity to investigate this matter, and the claims made, at the level at which I would in arbitral proceedings. Further, there are often wider circumstances of the case revealed in the hearing thereof that are not evident in the summary merits considerations (to which I been exposed in the materials as they are).

[35] That said, Mr Van Moolenbroek appears to be arguing that he was “legally able” to operate the EWP under supervision and he was supervised on that day (or otherwise directed to the carry out the work on the EWP by another employee who was ticketed). But in his show cause letter, Mr Van Moolenbroek appears to concede that he was not authorised to use the EWP and did so to get a job done and without regard to the consequences (“of operating the equipment without being authorised”).

[36] Mr Van Moolenbroek accepted that as the Company’s employee on a BMA site he was bound by the BMA Life Saving Rules. The BMA Safety Rules includes a rule that appears to state:

“Only operate equipment for which you are trained, assessed and authorised.” [My emphasis]

[37] I am not in a position to inquire into Mr Van Moolenbroek’s claims in the manner an arbitral hearing might. In my view, because of this, the most I can conclude is that the merits of the application should bear on in neutral terms on the overall judgement that I must make.

Fairness as between the applicant and other persons in a similar position (s.394(3)(f) of the Act)

[38] There was not a great deal of material put on in relation to this particular criterion. The case appears to turn on a singular set of circumstances that arise from the Company’s perception of the presumed conduct of Mr Van Moolenbroek. No comparative circumstances were agitated. I am of the view, consequently, that this criterion bears in neutral terms upon my ultimate judgment in respect of the conditional discretion vested in me.

Conclusion

[39] Reflecting on the circumstances arising from each of the considerations in s.394(3)(a)-(f) of the Act, I cannot characterise any of those circumstances, or those circumstances taken as a whole, as constituting “exceptional circumstances” for the Act’s purposes. Mr Van Moolenbroek’s reasons for delay do not give rise to any exceptional circumstances, and nor do any of the wider considerations support a finding to that effect.

[40] As such, my discretion under s.394(3) is not enlivened and I must dismiss the application under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr B. Van Moolenbroek, Applicant

Ms S. Mackenzie, of the Respondent

Hearing details:

Brisbane (and Mackay by video)

2015

4 May

 1   [2015] FWCFB 1737 at PN16.

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