Mr Colin Pulver v Sandvik Mining and Construction Australia Pty Ltd
[2010] FWA 3895
•8 JUNE 2010
[2010] FWA 3895 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Colin Pulver
v
Sandvik Mining & Construction Australia Pty Ltd
(U2010/5839)
COMMISSIONER MACDONALD | NEWCASTLE, 8 JUNE 2010 |
Termination of employment – extension of time.
[1] On 1 February 2010, Mr Colin Pulver (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging that his termination of employment on 18 December 2009 by Sandvik Mining and Construction Australia Pty Ltd (the respondent) was unfair.
[2] On or around 26 February 2010, the respondent filed an employer’s response to the unfair dismissal application and raised a jurisdictional objection to the application. The objection is that the application was filed out of time.
[3] The applicant’s application was lodged 31 days outside of the prescribed time limit of 14 days required by s.394(2)(a) of the Act.
[4] Conciliation of the application was undertaken on 2 March 2010 but was unsuccessful. The application was programmed for an arbitration of the out of time jurisdictional issue.
[5] The arbitration took place in Newcastle on 11 May 2010.
[6] The applicant filed a witness statement and was represented at the arbitration by Mr Adam Walkeden, union official, of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU), which filed and outline of submissions. The applicant gave oral testimony, as well.
[7] The respondent did not file any witness statement and was represented at the arbitration by Mr Daniel Murray, of the Australian Industry Group, which filed an outline of submissions.
BACKGROUND
[8] The dismissal letter is dated 10 December 2009 and took effect on Friday, 18 December 2009. The 14 day limitation period in which to file the unfair dismissal application, expired on Friday, 1 January 2010.
[9] The dismissal letter gave the reason for dismissal as fitness for duty, arising out of an injury that was disputed as to whether it has happened at work 1. (The applicant had already engaged the services of a solicitor, Clancy Allen, of Turner Freeman Layers, in respect of his worker’s compensation claim).2
[10] The 18th of December was a Friday. The applicant said he received the dismissal letter in the mail on or around that date. He had not been at work since September because of his injury. He was off on full pay by the respondent.
[11] He telephoned Ted Scobie, Site Manager – Redhead about his termination, on or around 18 December – but prior to Christmas Day. The name Ted Scobie and his title appears at the bottom of the letter but another person has signed on his behalf.
[12] The applicant, prior to Christmas Day, telephoned the office of Turner Freeman to arrange an appointment with his solicitor, Clancy Allen, who was on leave until 11 January 2010. He arranged a meeting for 18 January but due to a mix up, this did not take place until 21 January.
[13] He deposed he was advised by Allen on 21 January that “We don’t deal with cases of unfair dismissal. In any event, there is a 14 day time limit of filing an application.” 3
[14] The applicant contacted the office of Fair Work Australia (FWA), on 21 January, for advice on filing an unfair dismissal application.
[15] The applicant said he rarely used a computer and was not confident of accessing the specific unfair dismissal application. It was beyond him, he deposed.
[16] On that same day, 21 January, he contacted the office of the AMWU about filing his unfair dismissal application.
[17] A day or so later, the AMWU contacted the applicant to advise he should file his application and come into the office to do so.
[18] A day or so later, the applicant met with an AMWU industrial officer.
[19] The AMWU prepared the unfair dismissal application and filed it on 1 February 2010.
[20] The application was filed 31 days out of time.
FINAL SUBMISSIONS
[21] The AMWU filed written submissions on behalf of the applicant’s request to extend the filing date for the filing of his unfair dismissal application. The AMWU relied upon the applicant’s evidence and spoke to the written submissions.
[22] Mr Murray cross-examined the applicant and relied upon the applicant’s evidence and the written submissions, in opposing the extension of time application.
CONSIDERATION
[23] The applicant filed his unfair dismissal application 31 days out of time and seeks the remedy of an extension of time from Fair Work Australia for lodging that application.
[24] Section 394(2) of the Fair Work Act 2009 provides:
“(2) [Standard time limit] 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).”
[25] Subsection 394(3) provides:
“(3) [Extended time limit] 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.”
[26] I now turn to a consideration of the aforementioned (a) to (f) factors, in assessing whether the applicant had satisfied the onus placed on him, to demonstrate that the “exceptional circumstances” exist, to grant his request to extend the time limit by which he can file his unfair dismissal application.
[27] The parties provided extracts from decisions on the meaning of “exceptional circumstances.” One of those decisions is that of Lawler VP of Fair Work Australia: Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery. 4 In that case, Lawler VP adopted the analysis of the term “exceptional circumstances” by Whelan C in Parker v Department of Human Resources.5
[28] Thus, per that analysis, the word “exceptional” is to be construed as “…an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance…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.”
[29] Again from that analysis, the question then before Fair Work Australia, is whether the circumstances of the case for consideration, are “sufficient to render it just and equitable to grant relief.”
[30] I adopt the approach of Lawler VP.
Section 394(3)(a): The reason for the delay
[31] The reason for the delay put forward by the applicant is the unavailability of his solicitor, the ignorance of the 14 day time limit until after the expiry of that time limit; and that it was beyond him to successfully make an online application after becoming aware of the time limit.
[32] The applicant was advised of his termination by mail, on or around 18 December 2009 (I will deal with this finding under the next factor (b)). The 14 day period in which to file his application, expired on 1 January 2010.
[33] The applicant deposed that he telephoned the typed author of that termination letter (Ted Scobie, Site Manager – Redhead), in the few days that followed 18 December. This telephone call would have been in the following week. The applicant deposed he referred to the termination letter and said: “I am not very happy about it. Couldn’t the company have considered alternative work.” Elsewhere, he deposed he said: “I am not very happy about this and I will get the lawyers involved.”
[34] Mr Murray submitted that the reference to lawyers becoming involved, went to the applicant pursuing a claim to get his Christmas bonus if it was not paid to him. He put this submission based on the conversation as put by the applicant, who denied this under cross-examination. He said the lawyers reference went to his termination.
[35] I accept this view of the conversation as put by the applicant. The issue of a Christmas bonus did not arise again in the chronology of events. Further and significantly, the applicant’s conduct after this phone call was directed towards challenging his termination.
[36] Mr Murray submitted that the applicant had not done enough to challenge his termination. Thus, in the reported conversation, the applicant deposed that Ted Scobie had said the applicant should take up his termination with the human resources department. In my view, that was not necessary. It was not some person (in the human resources department) who had dismissed the applicant. The letter of termination bears a signature on behalf of Ted Scobie, Site Manager – Redhead. In other words, it was prima facie Ted Scobie’s decision to dismiss the applicant. Thus, the applicant was, in my finding, challenging the termination with the prima facie decision maker.
[37] As to pursuing that termination, the applicant deposed he telephoned the office of Turner Freeman to speak to his solicitor, Clancy Allen. He made this call after speaking to Ted Scobie – on or around 18 December – but prior to Christmas day.
[38] The applicant deposed he spoke to the receptionist at that law firm and advised of his receipt of a letter from Clancy Allen asking him to make an appointment to see him. The letter also stated that Allen was on annual leave and returning to the office on 11 January 2010. The subject matter of the appointment was to discuss the applicant’s work injury. 6 He also deposed that in that conversation, he said to the receptionist that he received a termination letter and wanted to discuss that with Allen.
[39] Obviously, the respondent was not in a position to rebut this evidence. However, Mr Murray did cross-examine as to why the applicant did not seek to speak with another solicitor about his termination, given that Allen was not back from leave until 11 January. Implicit in this question is that the applicant was delaying in pursuing his concern about his termination. Certainly there is a lapse of time before his solicitor is to act upon his termination but this was the solicitor dealing with his work injury claim against the same employer that had dismissed him. It is understandable then that he would take a legal enquiry about his termination to that solicitor only. As well, as to that lapse of time, the Commission accepts that at this point in time of his phone call (pre Christmas Day and the expiry of the 14 day limit), the applicant was unaware of the 14 day time limit and hence he was not under pressure to see another solicitor.
[40] He made an appointment, during this pre-Christmas phone call, to see Allen on 18 January.
[41] Prior to that meeting, the applicant sent a handwritten note, on or around 8 January, to Allen. This letter advised, inter alia, of his termination and that the accompanying termination letter was a matter for discussion at their meeting set up for 18 January. 7 This is evidence of the applicant challenging his termination through his lawyer, as he deposed he said he would do to Ted Scobie.
[42] The applicant attended the office of Turner Freeman on 18 January for his meeting with Allen but was told by the receptionist that there had been a mistake about the meeting time, and it was rescheduled for 21 January.
[43] At the meeting on 21 January, he was told by his solicitor, Allen that “we don’t deal with cases of unfair dismissal. In any event, there is a 14 day time limit of filing an application.” 8
[44] From the foregoing evidence, it can be seen that the applicant became aware of the 14 day time limit on 21 January. 9
[45] On that same day, the applicant contacted the Department of Industrial Relations about his dismissal and was referred to Fair Work Australia. The latter organisation advised he could still file an unfair dismissal claim – via accessing a form on its website.
[46] The applicant deposed that he unsuccessfully sought accessing that form. He then asked his wife for assistance. She was successful in accessing the form but he was not confident about completing that form.
[47] On or around that same day (21 January), he sought the assistance of the AMWU about filing an unfair dismissal claim. The AMWU took carriage of the matter and the application was filed by the AMWU on 1 February.
[48] Based on the foregoing chronology of events, I am satisfied that the applicant took pro-active steps to challenge his termination before the 14 day time limit expired. This was evidenced by his phone conversation with Ted Scobie (Site Manager and prima facie decision maker of the termination) and his contacting the law firm to make an appointment about his termination. His appointment was with the solicitor dealing with his other work related matter (work injury).
[49] The applicant was unaware of the 14 day time period until 21 January, when so advised by his solicitor. One possible source for advising of this time limit, was his workplace – for example, fellow employees. But that possibility does not apply here because he was not working due to his alleged work related injury. He had not been on the worksite since sometime in September 2009, when the respondent sent him home on full pay because of the alleged work related injury. 10
[50] When the applicant did become aware of the time limit, he immediately took steps to enquire of, ultimately, Fair Work Australia as to the filing of an unfair dismissal application. He sought to do so through an online application but the process was beyond him. There was no evidence to say otherwise about his electronic skills. He did not delay in contacting the AMWU which took over the processing of the application.
[51] I am satisfied that the applicant took immediate steps to challenge his termination and set in motion a legal process for dealing with that termination before the expiry of the 14 day period. When he became aware of the 14 day period limit, he did not delay in seeking to pursue the filing of his unfair dismissal application.
Section 394(3)(b): Whether the applicant first became aware of the dismissal after it had taken effect
[52] The applicant said he first became aware of his termination when he received his ternmination letter in the mail on or around 18 December. The letter of termination is dated 10 December.
[53] It was put to him in cross-examination, that he was aware of his termination prior to 18 December. He denied this. I accept this denial. The evidence showed that the applicant had not been at the worksite since sometime in September. He was not on the worksite in order to be told of his termination, in person. He first became aware of his termination when he received it in the mail.
Section 394(3)(c): Any action taken by the applicant to dispute the dismissal
[54] As already canvassed above, the applicant immediately telephoned Ted Scobie (Site Manager and the prima facie decision maker of the termination), upon receiving his termination letter. I accept the applicant’s version of the conversation that he put Ted Scobie on notice that he would be referring his termination to his lawyer – and he did so by telephoning the office of Turner Freeman to make an appointment to see his solicitor about his termination and the alleged work related injury.
[55] There is then a delay of a few weeks until the rescheduled meeting of 18 January. The expiry date for filing within time fell on 1 January 2010. But the applicant was unaware of any time limit in which to file and had already, in any event, evinced a clear intention to challenge his termination.
Section 394(3)(a): prejudice to the employer
[56] The respondent submits that there is prejudice to the employer in that the key witnesses are not available: the company’s industrial relations adviser has since died and the National Workers Compensation Co-ordinator was no longer working for the company and cannot be contacted. Further, those two were responsible for the management of the applicant’s case and for the decision to terminate his employment.
[57] The passing away of one employee and the non contactability of the other is unfortunate but Ted Scobie (Site Manager) is the name appearing on the termination letter as the prima facie decision maker about that termination. When he was contacted by the applicant, he did not respond (per the applicant’s witness statement) that he had no knowledge of the applicant’s termination.
[58] In any event, the reason for termination is clearly set out in the letter of termination. That reason surrounds fitness for duty which can be tested despite the passing away of one person and the unavailability of another.
[59] The respondent also submitted that the company was entitled to consider the matter at a close when the time for filing an unfair dismissal application has elapsed and the company had not been put on notice. I reject this submission, given my earlier finding that the applicant had put Ted Scobie on notice that he was not happy with his termination and would be seeing his lawyers.
[60] Accordingly, there is no prejudice to the respondent apart form the usual prejudice arising from granting an extension of time to file.
Section 394(3)(e): Merits of the application
[61] The respondent submitted that the merits of the case take in the applicant’s fitness for duty.
[62] I am not in a position to adjudicate on the applicant’s fitness for duty. This case does not, on its facts, go to the usual scenarios of say, termination on the ground of performance, or excessive work absences, or repeated lateness for work etc. As such, I was not provided with information about those usual scenarios where I might be able to form a view as to whether the applicant has some prospects of success. I am not in a position to express a view on the merits of the application.
Section 394(3)(f): Fairness as between the applicant and other persons
[63] Both advocates submitted that this factor did not arise for my consideration.
CONCLUSION
[64] Having considered the evidence and other material before me and having taken into account the factors contained in paragraphs (a) to (f) of section 394(3) of the Act, I am satisfied that the “exceptional circumstances” exist, in favour of the exercise of my discretion, to extend the period of time for the applicant’s unfair dismissal application.
[65] The reasons for exercising that discretion are set out above.
[66] In summary of those reasons, I am satisfied that the applicant took pro-active steps to challenge his termination before the expiry of the limit (1 January 2010). A delay then took place before his scheduled meeting with his already engaged solicitor, but once told of the time limit, the applicant acted immediately. The several days it took for the AMWU to file his application is not a delay to be visited upon by the applicant, who demonstrated at the relevant times, an intent and conduct to challenge his dismissal.
[67] I am satisfied that the applicant became aware of his termination on or around 18 December when the termination took effect.
[68] I have found that the applicant evinced an intention to challenge his termination and his immediate conduct, in that regard, was to contact Ted Scobie. The applicant also referred the matter to his already engaged solicitor and then the AMWU (after contacting Fair Work Australia).
[69] I have rejected the argument advanced by the respondent as to prejudice.
[70] Accordingly, it is just and equitable for me to exercise my discretion to extend time.
[71] An order reflecting this decision will be issued.
COMMISSIONER
Appearances:
Mr Adam Walkeden of the AMWU for the applicant.
Mr Daniel Murray of the Australian Industry Group for the respondent.
Hearing details:
2010
Newcastle
11 May
1 Annexure CP1 from statement of applicant (Ex 1)
2 Annexure CP2 from statement of the applicant
3 [2010] FWA 1394
4 [2010] FWA 1394
5 Ibid at PN 4 to 5
6 Annexure CP2
7 Annexure CP3 from statement of applicant
8 Exhibit 1, para 10
9 Ibid, paras 25 and 26
10 [2010] FWA 1394 at para 20
Printed by authority of the Commonwealth Government Printer
<Price code C, PR997359>
1
1
0