Mr Christopher Wingate v Monadelphous Engineering Associates Pty Ltd

[2014] FWC 3127

[2014] FWC 3127 [Note: An appeal pursuant to s.604 (C2014/4801) was lodged against this decision - refer to Full Bench decision dated 4 September 2014 [[2014] FWCFB 5913] for result of appeal.]

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Christopher Wingate
v
Monadelphous Engineering Associates Pty Ltd
(U2013/17128)

COMMISSIONER CLOGHAN PERTH, 15 MAY 2014

Unfair dismissal.

[1] On 6 December 2013, Mr Christopher Wingate (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Monadelphous Engineering Associates Pty Ltd (Employer).

[2] Mr Wingate alleges that he was dismissed by Monadelphous Engineering Associates Pty Ltd on 13 November 2013. The Employer alleges that he was dismissed on 12 November 2013.

[3] The application was made pursuant to s.394 of the Fair Work Act (FW Act).

[4] The application was not resolved at conciliation and was referred to me for arbitration on 13 February 2014.

[5] A conference was held on 5 March 2014 to consider the Employer’s jurisdictional objection that the application was lodged beyond the statutory timeline of 21 days.

[6] For the Commission to have jurisdiction to hear and determine the substantive application, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[7] Mr Wingate has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made, that is, 6 December 2013, if it is satisfied that there are exceptional circumstances, as set out in s.394 of the FW Act.

[8] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[9] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 6 December 2013, I issued procedural directions to the parties on 12 March 2014 advising that the matter would be determined by written submissions.

[10] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the Applicant to file the application on 6 December 2013.

RELEVANT BACKGROUND

[11] The Applicant commenced employment on 13 April 2013.

[12] As I have already indicated, the Applicant states in his application that he was dismissed on 13 November 2013. The Employer asserts that the Applicant was dismissed on 12 November 2013. I shall return to this issue later in this Decision.

[13] Mr Wingate submits that on 13 November 2013 he attended the Fair Work Ombudsman (FWO) office in Bunbury. Mr Wingate submits that he told the FWO office that he “was flown out the day before without any details clarifying if I was terminated between projects with or without pay, or if my position was being made redundant.” According to Mr Wingate, the FWO “suggested that I write to Monadelphous to clarify” his situation.

[14] Between 14 November and 15 November 2013, Mr Wingate sent five (5) emails to various representatives of the Employer essentially asking the same question, “was I fired or demobilised?”

[15] On 21 November 2013, Mr Truman, General Manager, Human Resources responded to Mr Wingate’s enquiry relevantly as follows:

“In answer to the question you have raised. I can confirm your employment was terminated as a result of abusive and threatening behaviour towards a fellow employee, and that you are no longer employed by Monadelphous.

I believe that this misconduct had been discussed with you prior to reaching the decision to terminate your employment.”

[16] On 5 December 2013, Mr Wingate responded to Mr Truman. The relevant parts of the email are as follows:

“Your reply comes as a surprise to me. Could I have a copy of the details of the alleged complaint. No discussion was had outlining termination as you describe in your letter.

I was not abusive towards any member of staff. In fact it was the opposite. If you send me your mobile number I will send you a digital recording of what your transport/mechanical manager actually said to me.”

[17] On 6 December 2013, Mr Wingate filed his application with the Commission.

[18] I now turn to the relevant legislative provisions which relate to Mr Wingate’s application.

CONSIDERATION

[19] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[20] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[21] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[22] The burden lies with Mr Wingate to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I shall now consider those circumstances set out by the Applicant within the legislative provisions.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[23] As I apprehend Mr Wingate’s submission, he submits that the reasons for the delay in filing his application are that he was unaware of his employment status until 21 November 2013 and made application to the Commission 15 days after becoming aware of his dismissal on 21 November 2013.

[24] By his own submission, Mr Wingate’s employment ceased on 12 November 2013 and I find accordingly.

[25] On 12 November 2013, Mr Wingate recorded the following opening words on his iPhone:

“[Superintendent] Fenton - ‘how are you mate. I’m going to finish you up buddy...hmm you’ll be flying out at 3:45...”

[26] This conversation followed a series of onsite events. Mr Wingate left the site on the same day - 12 November 2013.

[27] The Applicant has not provided the entire transcript of the recorded conversation with Mr Fenton but to the extent of the transcript provided, the Employer does not disagree with what Mr Fenton has said.

[28] The Employer submits that the remainder of the conversation relates to the background and reasons for Mr Wingate’s dismissal.

[29] Mr Wingate claims that during the conversation with Superintendent Fenton, there was another person present who he described as an “unnamed girl wearing Sudexco clothing in (camp uniform).” The Employer states that the “unnamed girl” was Ms Margaret McDougall, the Employer’s Health, Safety and Environment/Injury Management Coordinator who was present as a witness to Mr Wingate’s termination of employment. The Applicant does not rebut the Employer’s assertion and I am satisfied that Ms McDougall was present at the time Mr Wingate was dismissed.

[30] The word “finish” has the ordinary meaning of something coming to an end. The Australian Concise English Dictionary defines “finish” and “finish up” as “bring to an end, come to an end of”, “reach an end, cease” and “end in something or by doing”.

[31] I am satisfied that the words of Superintendent Fenton, as recorded by Mr Wingate, that “I’m going to finish you up...” are clear and unambiguous. Simply put, Mr Wingate’s employment ended on 12 November 2013.

[32] Notwithstanding my finding that Mr Wingate’s employment ended clearly and unambiguously on 12 November 2013, the Applicant asserts that he “had no understanding of my employment status and so over the next week I attempted to find out”.

[33] In the first of the five emails to Employer representatives on 14 and 15 November 2013, Mr Wingate enquires:

“Hi Mick - Chris Wingate - I’m trying to work out was I fired or demobilised. Either way what was the reason. Feedback by others was their supervisor said I was fired for not coming to work Tuesday” (12 November 2013).

[34] Similar emails were sent to two other Employer representatives over the course of 14 November 2013. A further two emails were sent to the Employer’s recruitment and human resources representatives.

[35] In the first three emails to Employer onsite representatives, Mr Wingate clearly acknowledges that he had been informed by his work mates that he had been “fired”.

[36] It is difficult to conceive that Mr Wingate had uncertainty about his employment status when he had been told by Superintendent Fenton that he was to “finish up” and fly home. Further, by his own communication to the Employer, he was aware through his former work mates, that he had been “fired”. These emails commenced at 8:31 am on 14 November 2013, or within 48 hours of being dismissed.

[37] For the reasons outlined above, I reject Mr Wingate’s assertion that “notice of termination was not provided to me until 21 November as outlined in an email from Monadelphous human resources manager Phillip Truman”. Mr Wingate was unequivocally dismissed by Superintendent Fenton on 12 November 2013.

[38] As I have made a finding that Mr Wingate was unambiguously dismissed by the Employer on 12 November 2013 and he could not have had any uncertainty about his employment status, it follows that he does not have a valid reason for the delay in lodging his application.

[39] In addition, it appears from the Applicant’s submission that he made an assumption or now makes an assertion that his employment status was only made known to him on 21 November 2013, and consequently his application was within the 21 days as provided for in the FW Act.

[40] This assumption was erroneous and cannot be relied upon. Being wrong is not exceptional - unfortunately, it is all too common. Secondly, paragraph 365(i)(a) provides that application must be made within “21 days after the dismissal took effect”. Mr Wingate’s dismissal took effect on 12 November 2013. In conclusion, I am satisfied that there are no exceptional circumstances taking into account the submitted reasons for the delay.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[41] From the submission, the Applicant states that he attended the FWO office in Bunbury on 13 November 2013. Mr Wingate does not say for what purpose. Mr Wingate states that he outlined to the FWO office “my concerns”. Those concerns appear to be that, “I was flown out the day before without any details clarifying if I was terminated, was between projects with or without pay, or if my position was being made redundant’. In summary, Mr Wingate’s submission indicates that the visit to the FWO office was for the purpose of seeking advice relating to his employment status.

[42] Similarly, the email communications to the Employer representatives on 14 and 15 November 2013 also relate to his employment status. However, the correspondence goes one step further by enquiring that, if he was dismissed, the reasons for the dismissal and who made the decision.

[43] It could be argued that the Applicant was seeking the information from the Employer in which to dispute his dismissal. Alternatively, it could be argued that there is no statement from the Applicant that he was seeking this information to dispute his dismissal. In short, it would be mere speculation on my part as to why he attended the FWO office and emailed the Employer representatives.

[44] It is fact that Mr Wingate responded to Mr Truman’s correspondence of 21 November 2013 on 5 December 2013. However, the content of the email seeks details of the “alleged complaint” and his view of the discussion which took place leading up to his dismissal but he had already recorded these conversations on his iPhone.

[45] Mr Wingate, in his response to Mr Truman, invited him to receive a digital recording of the discussion which he had made. I have taken into account this criterion in relation to whether there are exceptional circumstances to allow the application to be filed beyond the statutory timeline.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[46] The Applicant does not make any reference in his submission to this criterion. The Employer does not content to any particular prejudice. I note that the absence of prejudice is insufficient to make out a case for extension to allow the application to be lodged beyond the statutory timeline.

Paragraph 394(3)(e) - the merits of the application

[47] The Applicant contends:

“I never did anything wrong therefore why would I think I was fired”.

[48] Our knowledge of things spring from our ability to receive external “stuff” and translate it into meaning.

[49] I am unable to agree with the Applicant that because he thought he did nothing wrong, why would he think he was fired. The plain facts are that Superintendent Fenton told him he was fired and his own enquiries with his work mates confirmed their understanding that he had been fired.

[50] However, the merits of Mr Wingate’s application can only be determined after a hearing in which evidence is tested. There are a number of matters of factual contest between the parties. While I have taken this criterion into consideration, I have adopted a neutral position as to its “weight” on whether time should be extended to file the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[51] It would appear that this ctiterion is not a relevant consideration. To the extent that it is relevant, I have adopted a neutral position with respect to this criterion.

CONCLUSION

[52] Mr Wingate’s submission refers to a number of digital recordings made on his iPhone. Mr Wingate submits his understanding of the “evidence act and the surveillance act”. I am not required nor do I form a view of the correctness or otherwise of his understanding of the legislation that he has referred to.

[53] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Mr Wingate filing his application. Accordingly, the application must be dismissed. An order to this effect will be issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 24 March and 16 April 2014.

Respondent: 11 April 2014.

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