Mr Ian Birchley v Downer EDI Mining Pty Ltd
[2019] FWC 512
•31 JANUARY 2019
| [2019] FWC 512 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ian Birchley
v
Downer EDI Mining Pty Ltd
(U2018/10780)
DEPUTY PRESIDENT ASBURY | BRISBANE, 31 JANUARY 2019 |
Application for an unfair dismissal remedy – Extension of time – Whether exceptional circumstances present – Representative Error – Whether Applicant blameless in delay – Exceptional circumstances present – Extension of time granted.
BACKGROUND
[1] This Decision concerns an application by Mr Ian Birchley under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Downer EDI Mining Pty Ltd (Downer). In his Form F2 Application filed on 18 October 2018, Mr Birchley states that he was dismissed on 14 August 2018 and that his dismissal took effect on that date. The application was made on 18 October 2018.
[2] By virtue of s. 394(2) of the Act an application under s. 394 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 394(3). The application was made 44 days outside the time required in s. 394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.
[3] Directions were issued requiring Mr Birchley to file a statement setting out the basis for the submission that there were exceptional circumstances justifying the grant of a further period in which to make his unfair dismissal application, by 4.00pm on Monday 17 December 2018. Downer was directed to file and serve any material in relation to the matter by 4.00pm on Monday 24 December 2018. The matter was listed for Jurisdiction Hearing on Monday 7 January 2019. Mr Birchley represented himself. Downer was represented by its Employee Relations Manager Mr Jarrett Goos.
[4] Mr Birchley’s statement filed in accordance with Directions raised an issue in relation to the actual date of his dismissal and asserted that the dismissal actually took effect on 15 October 2018 and that his application had not been made outside the required time. In the alternative, Mr Birchley contended that the delay in making his application was a result of representative error and that an extension should be granted.
EVIDENCE
[5] The evidence in relation to Mr Birchley’s employment and the ending of that employment can be summarised as follows. Downer provides contract mining services at the Meandu Mine in Nanango Queensland. Mr Birchley was employed as a casual security officer from 5 September 2016 fulfilling the roles of Emergency Services Security Officer and assisting with gatehouse coverage where required.
[6] On 9 August 2018, Mr Birchley emailed the Maintenance Training Co-ordinator for Downer EDI Mr Curran, to whom he reported, advising that he was leaving site. Mr Birchley’s email to Mr Curran was in the following terms:
“Hi Charlie
I’m leaving site now and sorry for the notice, but I won’t be available to work again until Monday 20 August
Regards”
[7] Mr Curran’s evidence is that he attempted to contact Mr Birchley by telephone to discuss this matter and upon making inquiries at the gatehouse formed a view that Mr Birchley had been upset and angry when he left the site because of a disagreement about the application of a site rule in relation to personal protective equipment (PPE). Mr Curran states that he continued to attempt to contact Mr Birchley on 10 August 2018 and when he was unable to do so, conducted a welfare check by contacting Mr Birchley’s step son who also worked for Downer at the Meandu Mine. Mr Curran was informed that Mr Birchley was at home and that Mr Birchley’s step son was unaware of the reason for his absence from work.
[8] Also on Friday 10 August 2018, Mr Curran commenced making plans for coverage of the gatehouse as he was going on leave and wanted to arrange this before he went. Mr Curran said that he was concerned that Mr Birchley would not attend his rostered shifts and could not make contact with Mr Birchley to discuss his absence and the reasons for it. Mr Curran sent an email to Mr Birchley at 11.11 am on 14 August 2019 in the following terms:
“G’day Ian
I have tried to contact you Thursday and Friday and left you messages on both days to give me a call to discuss the below and your availability moving forward.
As you have not returned my calls to discuss, I have been required to make alternative arrangements for gatehouse coverage in your absence.
I have put in place suitable coverage until the 31st of October 2018 to meet site requirements. If I have any additional leave or site requirements for additional coverage I will give you a call to discuss your availability when or if the occasions present.
Please feel free to contact me at any time if you wish to discuss further.”
[9] Mr Curran followed up the email with a text message sent on 15 August 2018 informing Mr Birchley of the email and its subject matter. Mr Birchley responded on 16 August 2018 by email stating:
“As advised in my email last Thursday I am available to work from Monday 20 August. There has been no change to that advice. I have never failed to advise you of my availability or otherwise for work, nor failed to attend when stated; this time is no different.
I therefore don’t understand the reason for your email regarding my not being at work until the end of October – it seems unwarranted, disproportionate, unfair and punitive. Being a ‘casual’ employee does not mean that one has to accept unfair treatment.
Please advise by return email before Saturday if I am to resume work on Monday as originally advised, otherwise I must presume your position on this matter remains unchanged and seek redress.”
[10] Mr Curran forwarded Mr Birchley’s response to his Manager Mr Mason and to the Project Manager and was advised that they would take over the communications with Mr Birchley. Mr Mason emailed Mr Birchley on 17 August 2018 and asked whether Mr Birchley was available to attend a meeting on 27 August 2018. Mr Birchley responded on 17 August 2018 stating that he could be available and requesting details of the purpose or agenda of the meeting and who would be attending. Mr Birchley did not attend the meeting and Mr Mason emailed him on 27 August 2018 to ask for an explanation for the non-attendance. There was then a series of emails between Mr Mason and Mr Birchley on 27 August 2018.
[11] Mr Birchley stated in an email that he did not attend because he did not receive a response from Mr Mason to his questions about the purpose of the meeting and who would be attending. Mr Mason responded and stated that Mr Birchley had said he would attend and that Mr Mason did not think he needed to explain himself or who would be attending. Mr Mason also requested that Mr Birchley provide an alternative date for the meeting.
[12] Mr Birchley responded stating that his attendance at the meeting was conditional on responses being provided to his questions about the purpose of the meeting and attendees and that he would not attend a meeting until these questions were answered. Mr Birchley also asserted in his email that he had been suspended for work for over two months and was not going to use his own time to walk into an “ambush” meeting. Mr Mason responded to that email sent at 1.43 pm on 27 August 2018 stating that he did not know that Mr Birchley was suspended from work and that the meeting was to discuss the fact that Mr Birchley left work in a hurry with no explanation and that he had asked Mr Curran to put in place arrangements to cover his shifts for an extended period as the Company did not know what Mr Birchley was doing. Mr Mason’s email also said that if there was no gatehouse coverage the Mine could not operate and plans needed to be put in place. The email concluded with Mr Mason stating that the meeting was set to give Mr Birchley a chance to explain his actions.
[13] On 29 August 2018 Mr Mason telephoned Mr Birchley as he wanted to understand why Mr Birchley believed he had been suspended. Mr Mason states that he explained that he had taken action to provide coverage for the gatehouse in circumstances where he did not know whether Mr Birchley was available for work. Mr Birchley states that he referred Mr Mason to the email sent by Mr Curran and that evening outlined his position to Mr Mason in a further email. In that email Mr Birchley asserts:
● Despite stating in an email of 27 August that Mr Birchley had not been suspended Mr Mason had not lifted the suspension;
● There was nothing unusual or hurried about Mr Birchley’s departure on 14 August and he had finished early on other occasions;
● The reasons for Mr Birchley’s intended absence until 20 August are private and he does not wish to discuss them;
● Mr Birchley had stated that he would be available for work after 20 August in emails dated 14 and 16 August and there was no reason that anyone should doubt that this was the case; and
● Mr Birchley had been available to work since 20 August and remained so.
[14] In conclusion Mr Birchley states in the email that as a result of the lost income he will need to make irreversible arrangements with his superannuation fund to meet living expenses and commitments and that if this occurs he will seek redress and compensation, but that he would rather avoid litigation. Mr Mason states that he received this email and passed it on to Mr Curran. Mr Birchley states that there was no response by the Company to this email.
[15] On 4 September 2018 Mr Birchley sought legal advice in relation to his position. Mr Birchley’s request for advice indicates that he has been suspended from work. A response from the firm received by Mr Birchley on 5 September 2018 advises that there are no appointments available until the third week of October. On 6 September 2018 Mr Birchley made contact with the firm of James McConville and Associates and received a quote for preparing and filing an unfair dismissal application. At 12.15 pm on 7 September 2018 Mr Birchley emailed that firm requesting that the application be prepared as discussed. Mr Birchley said that the advice he received from that firm was in relation to constructive dismissal.
[16] On 13 September 2018 Mr Choi of James McConvill and Associates sent a letter to
Downer headed: “RE: EMPLOYEE CONCERNING IAN BIRCHLEY” (sic). In that letter it is asserted that Mr Birchley has no option but to resign as he is “not needed to return to work” and that this is considered a constructive or forced dismissal which is an unlawful termination of Mr Birchley’s employment contract. The letter goes on to state that the suspension and reduction in working hours has repudiated Mr Birchley’s employment contract and sets out an offer to settle claims by Mr Birchley against Downer by payment of a financial amount. On 20 September 2018 Mr Goos responded to the letter on behalf of Downer denying that Mr Birchley had been dismissed and stating that he was engaged as a casual employee and had left site to go on annual leave after his supervisor attempted to roster him for a number of shifts, resulting in alternative arrangements with another employee being made to cover those shifts.
[17] On 28 September 2018 Mr Choi sent a further letter of demand to Downer raising the issue of whether Mr Birchley is in fact a permanent rather than a casual employee on the basis of the decision of the Full Court of the Federal Court in Workpac Pty Ltd v Skene and stating that:
“Our client satisfies the eligibility to make an unfair dismissal claim as he is considered to be a permanent employee and therefore you have failed to pay the right entitlements and a proper notice to be given to our client and should be liable for compensation as well as for pecuniary penalties.
Given the urgent time frame of 21 days, if we do not receive acceptance of our client’s offer below within 7 days we have no option but to apply for an unfair dismissal to the Fair Work Commission and seek higher compensation including interests (sic).”
[18] The letter then sets out a financial offer of settlement which includes lost wages an additional amount as a “remedy” all other entitlements under the NES for the duration of employment plus legal expenses. Downer responded to this letter on 3 October 2018 rejecting the offer of settlement and reiterating that Mr Birchley is a casual employee and has not been dismissed. On 5 October 2018 Mr Choi again corresponded with Mr Goos stating that:
“If not terminated but then not giving our client to work will lead our client no choice but to resign and this would constitute as constructive dismissal as mentioned in our letter of 13 September 2018 (sic).”
[19] The correspondence concludes with the statement that if Mr Birchley is not dismissed then he will accept an immediate return to work (before 15 October 2018) as a permanent employee in a full time position and seeks payment from 20 August 20018 to 12 October 2018 plus an amount of $4000 for legal costs.
[20] Mr Birchley also tendered emails he exchanged with his legal representative including an email dated 20 September 2018 in which Mr Birchley is advised by Mr Choi that his employment has been terminated by the letter from Downer dated 20 September 2018 and that there is a 21 day period starting the day after the dismissal in which Mr Birchley is required to make an unfair dismissal application. On 21 September 2018 Mr Birchley emailed Mr Choi and advised that he would like Mr Choi to proceed and would answer questions asked by Mr Choi that evening. Mr Birchley also tendered an email to Mr Choi sent on 26 September 2018 in relation to a draft letter sent to him by Mr Choi. The email states that Mr Birchley expected that his application to the Commission would be drafted by this point and asks whether there is something about the purpose of the second letter that Mr Birchley should be aware of. That email also asks Mr Choi to consider the Federal Court decision in Workpac v Skene and whether that case is “worth a mention”.
[21] On 7 October 2018 Mr Birchley terminated the services of James McConvill and Associates and on 9 October 2018 wrote to Mr Goos making a number of claims and assertions about his employment and seeking a full time permanent position and back pay for lost wages. Mr Birchley also makes claims for a number of payments under the relevant enterprise agreement which he alleges he is entitled to on the basis of the roster he worked. The letter concludes by stating that Mr Birchley has not yet calculated the amount of back pay to which he asserts he is entitled but will advise of this amount following the expiration of the period of the current offer Mr Choi had made – 12 October 2018.
[22] Mr Curran emailed Mr Birchley on 9 October 2018 regarding available shifts on 16, 18 and 25 October 2018. Mr Birchley originally agreed to work these shifts and then changed his position when other discussions he was having with Mr Goos and Ms McDuffie (Human Resources Supervisor at Meandu) about other available positions, broke down. On 11 October 2018 Mr Goos corresponded with Mr Birchley stating that Downer hoped to resolve the issue with him and would review employment options at the Mine and discuss them with Mr Birchley notwithstanding that his underpayment claims were rejected.
[23] Mr Paul Oram, Project Manager, emailed Mr Birchley on 12 October 2018 referring to the employment options discussions Mr Birchley had had with Mr Goos and Ms McDuffie, and inviting Mr Birchley to meet with him to discuss what positions were available. Mr Birchley replied by email on 14 October 2018 stating that he did not see the point in continuing those discussions, and expressing a view that the shifts offered by Mr Curran were an attempt by Downer to create an appearance that he had always been employed in a casual manner, and that the shifts were not offered until Mr Birchley requested a permanent full time position, and the offer was the first time Mr Birchley had heard from Mr Curran in two months. Mr Birchley also stated that Mr Curran’s email of 14 August 2018 had effectively suspended him from work, and if he did not receive a response of substance to his email by 5.00pm Monday 15 October 2018, he would file his application for “Unfair (constructive) Dismissal”.
[24] Mr Birchley maintains that he formed a view that his employment had been terminated on 15 October 2018 and before that there was “argy bargy” about resolution of his issues. Mr Birchley said that he included the date of 14 August 2018 as the date of dismissal for the purposes of his completing his unfair dismissal application only because this was the date that his supervisor at the Mine suspended him from work until 1 November 2018. Mr Birchley also said that he has not resigned and has not been dismissed and that he still receives weekly pay advices from Downer stating nil earnings, and on that basis held a view that he had been constructively dismissed when the time period for acceptance of his last settlement offer to Downer expired.
CONSIDERATION
Date Mr Birchley’s employment ended
[25] After considering the evidence of the interactions between Mr Birchley and Downer I am satisfied that Mr Birchley’s employment continued until at least 15 October 2018 when his offer to settle claims in relation to how Downer had dealt with him lapsed. Mr Birchley states – and I accept – that he only included 14 August 2018 in his unfair dismissal application on the basis that this was the last day he performed work for Downer.
[26] Downer has consistently maintained in all of its correspondence with Mr Birchley’s legal representative that Mr Birchley was not dismissed and remained in employment. It is also the case that notwithstanding the dubious quality of the legal advice received by Mr Birchley that he did not resign his employment and that the letters of demand were framed on the basis that the conduct of Downer in not providing Mr Birchley with work for a lengthy period amounted to repudiation of the employment contract which Mr Birchley was entitled to accept with the result that termination would be at the initiative of Downer. It is also the case that Mr Birchley was being offered shifts as late as 9 October 2018 with shifts being offered to Mr Birchley on 16, 18 and 25 October 2018. These interactions are all indicative that an employment relationship existed at the time the shifts were offered.
[27] Accordingly it is not strictly necessary to consider whether an extension of time in which to make Mr Birchley’s unfair dismissal application is required as the application was made within the time required in s.394(2)(a) of the Act. In reaching this conclusion I have not made any finding as to whether Mr Birchley’s employment ended at the initiative of Downer and this is a question that may need to be determined at a future date. For the purposes of dealing with whether Mr Birchley should be granted a further period in which to make an unfair dismissal application I have simply concluded that Mr Birchley’s employment continued until 15 October 2018 and ended on that date. For completeness and in the event that my assessment of the termination date is wrong, I have dealt with the question of whether a further period is required.
Should a further period be granted to Mr Birchley to make his unfair dismissal application?
[28] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:
“(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.”
[29] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:
• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.1
[30] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.2 The Applicant must provide a credible reason for the delay in making an application and the reason is considered along with the other matters set out in s. 393.3 The circumstances from the time of the dismissal must also be considered and ultimately whether the reason for the delay or part of it constitutes exceptional circumstances.4
[31] Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.5 There is a line of authority for the proposition that representative error may be a sufficient reason to grant a further period, depending on the circumstances including whether the applicant it blameless and has taken reasonable steps to provide information and instructions necessary for the preparation of the application and to inquire about whether the application has been lodged. 6
[32] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. I will consider each of those matters in turn.
Reasons for the delay – s.394(3)(a)
[33] The reasons for the delay advanced by Mr Birchley are representative error and delay on the part of Downer in responding to letters from his legal representatives. If Mr Birchley was dismissed on 14 August 2018 as he states in his application for an unfair dismissal remedy, then he acted with relative promptness to attempt to obtain legal advice and representation by retaining the services of McConvill & Associates on 7 September 2018 after attempting to engage another firm on 4 September 2018. It is also the case that managers of Downer continued to correspond with Mr Birchley in relation to rostering him in the future.
[34] The conduct of Mr Choi in relation to dealing with Mr Birchley’s application leaves much to be desired. It is clear that Mr Choi was endeavouring to obtain a settlement rather than focusing on filing an unfair dismissal application. It was not until 20 September 2018 that Mr Choi advised Mr Birchley of the time limit for filing an unfair dismissal application. Even when Mr Birchley questioned why the unfair dismissal application had not been filed, Mr Choi did not do so but rather wrote a second letter of demand to Downer.
[35] In my view this is a clear case of representative error and as such favours an extension of time. Mr Birchley gave an instruction to his legal representative to draft the application and should not be prejudiced by the fact that the representative did not follow those instructions but rather went about writing letters of demand instead of protecting Mr Birchley’s position by filing within the required time. It is also the case that the correspondence from Downer to Mr Birchley’s legal representative asserting that he had not been dismissed, would also have led Mr Birchley to believe that this was the case and explains his delay in filing his application. This is also a matter which weighs in favour of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
[36] I accept that notwithstanding that Mr Birchley stated in his application that his dismissal took effect on 14 August 2018 that this was an error on his part and that Mr Birchley was not aware that he had been dismissed until he formed the view that this is what had occurred when the period in the letters of demand sent by Mr Birchley’s legal representative, and later Mr Birchley, expired without Mr Birchley returning to work. Prior to that date Mr Birchley believed that he had been suspended. Mr Birchley’s understanding of the date of his termination was also impacted by the correspondence from Downer to his legal representative insisting that he had not been dismissed. This consideration favours an extension being granted.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
[37] Mr Birchley went to some effort to dispute the manner in which he was treated by Downer and to engage legal representation to take up the matter on his behalf. Downer can have been in no doubt that Mr Birchley disputed the manner in which he had been treated including asserting that he had been constructively dismissed. As previously noted whther this is the case or not is a matter for another day. Mr Birchley did dispute the ending of his employment and this consideration weighs in favour of granting an extension.
Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)
[38] There is no apparent prejudice to Downer because of the delay other than it will be required to defend an unfair dismissal application. While not determinative, the matter of absence of prejudice weighs in favour of the exercise of discretion to grant a further period to Mr Birchley.
The merits of the application – s.394(3)(e)
[39] In the matter of Kornicki v Telstra-Network Technology Group 7 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 8
[40] After considering the material filed by the parties it is clear that there are factual disputes between the parties. Mr Birchley left the workplace without advising of his whereabouts and has persistently refused to explain his behavior. Mr Birchley’s attitude to managers of Downer expressed in his correspondence also leaves much to be desired. On the other hand it is not clear why a decision was made to not provide Mr Birchley with work until the end of October in circumstances where he had indicated that he would be able to return to work on 20 August 2018. I am not satisfied that the application has no merit so that this factor weighs against the grant of a further period. Neither am I satisfied that there is such apparent merit that it weighs in favour of an extension. Merit is a neutral factor in this case.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[41] In the particular circumstances of this case there are no other employees of Downer in the same position as Mr Birchley. If fairness is considered in a general sense, it is well established that representative error has been accepted as weighing in favour of a finding of exceptional circumstances, but that this is only so where the applicant is blameless in the delay and has given clear instructions to file an application, or to otherwise prosecute the application.
[42] In the present case a reason for the delay is representative error and it would not be unfair to grant Mr Birchley an extension of time when other applicants in cases before the Commission have been granted extensions for this reason.
CONCLUSION
[43] As stated above I have found that Mr Birchley’s employment continued until at least 15 October 2018 and therefore Mr Birchley made his application for an unfair dismissal remedy within the required time. If I am wrong in this assessment, after considering all of the relevant factors and weighing them, I am satisfied that there are exceptional circumstances sufficient for me to exercise my discretion to grant a further period for Mr Birchley to make his unfair dismissal application. To the extent that Mr Birchley may require an extension of time in which to make his application if my finding in relation to the date his employment ended is wrong, I extend the time for making Mr Birchley’s unfair dismissal application (U2018/10780) to 18 October 2018. An Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr Ian Birchley on his own behalf.
Mr Jarrett Goos on behalf of the Respondent.
Hearing details:
2019.
7 January.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR704366>
1 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
2 Ibid at [15].
3 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403.
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
5 Nulty v Blue Star Group [2011] FWAFB 975.
6 Rapely v MSS Security Pty Ltd T/A MSS Security [2018] FWC 1792;
7 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
8 Ibid
5
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