Mr Mark Cunneen v RCR Resources Pty Ltd

[2013] FWC 9009

[2013] FWC 9009

FAIR WORK COMMISSION

DECISION

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

Mr Mark Cunneen
v
RCR Resources Pty Ltd
(U2013/2953)

Mr Shayne Veness
v
RCR Resources Pty Ltd
(U2013/13166)

DEPUTY PRESIDENT MCCARTHY PERTH, 15 NOVEMBER 2013

Application for relief from unfair dismissal Application for relief from unfair dismissal.

[1] The circumstances relating to these two applications are sufficiently identical that I have dealt with them both in this decision.

[2] On 3 September 2013 applications for unfair dismissal remedy (the applications) were lodged on behalf of Mr Mark Cunneen and Mr Shayne Veness (the Applicants). The Applicants assert that they were unfairly dismissed from their employment with RCR Resources Pty Ltd (the Respondent).

[3] The applications state that the dismissals took effect on 6 August 2013. The applications were therefore lodged after the time allowed by s.394(2)(a) of the Fair Work Act 2009 (the FW Act) there were no reasons provided at the time of lodgement of the applications that explained why they were lodged after the time allowed.

[4] On 27 September 2013 the Respondent lodged an Employer’s Response to Application for Unfair Dismissal Remedy (the Employer’s Response) to the applications. The Employer’s Response objected to the applications on the grounds that the applications did not comply with s.394(2)(a) of the FW Act and the Applicants had failed to seek an extension of time nor provided reasons to satisfy the requirements for an extension of time to be allowed.

[5] I wrote to the Applicants and their representative on 22 October 2013 and 29 October 2013 requesting information to be provided regarding the issues I must consider for an extension of time to be granted. I required that information to be provided by 5 November 2013 and 11 November 2013.

[6] The Applicants, through their representative, provided that information on 30 October 2013. The representative for the Applicants is the Construction, Forestry, Mining and Energy Union (the CFMEU).

[7] The reason for the delay is encapsulated in the following outline of the sequence of events following the Applicants’ dismissal.

● On 7 August 2013 the Applicants’ phoned the offices of the CFMEU and asked to speak with a member of the industrial team.

● The Applicants spoke to Kevin Sneddon, an in-house lawyer for the CFMEU (Sneddon), and an appointment was made for the Applicants to attend an interview with Sneddon the following day.

● On 8 August 2013 the Applicants attended the offices of the CFMEU and had an interview with Sneddon. The Applicants were informed by Sneddon that based on the information they had provided there was sufficient grounds to make an unfair dismissal application to the FWC. The Applicants indicated that this was their preferred position.

● On 19 August 2013 Sneddon sent draft applications to the Applicants asking that they review the applications and provide further instruction.

● On 22 August 2013 Sneddon phoned the Applicants and left messages on their voice mail services asking that the calls be returned.

● The Applicants returned Sneddon’s call on 22 August 2013 and confirmed that the information contained within the applications was correct and gave instructions that the applications be filed with the FWC.

● On 22 August Sneddon gave direction to Kelly Karolak, legal assistant for the CFMEU (Karolak), that the applications were to be filed with the FWC.

● Sneddon then departed for a week’s annual leave on 23 August 2013. Sneddon did not check that the applications had been filed prior to his departure on annual leave.

● Sneddon returned from annual leave on 3 September 2013 and upon inquiry ascertained that the applications had not been filed. Sneddon then arranged for the applications to be filed with the FWC that day.

[8] The Applicants clearly took action immediately after their dismissal, received advice, and directed that applications for unfair dismissal be lodged.

[9] The Employer will suffer prejudice, however, the periods of time involved are not long and the prejudice is not likely to jeopardise to any significant extent the capacity of the Respondent to bring evidence or otherwise prepare a defence to the applications.

[10] The merits of the applications naturally turn mainly on the reasons for the dismissal. The Applicants’ account of events and the Respondent’s are substantially different. Importantly conduct is asserted to have occurred that lead to, or contributed to, the dismissal. The Applicants dispute that the conduct did occur. The Fair Work Commission
(the FWC) in determining whether a dismissal was unfair is obliged to make findings of fact where conduct is alleged to have occurred and that conduct is denied. It is not appropriate in deciding whether to allow an application lodged beyond time to make findings or observations about those disputed facts. Therefore I will give no weight to the merits of the applications for the purposes of my considerations now.

[11] The fairness between the Applicants and other persons in a similar position are directed at ensuring there is consistent treatment of similar circumstances. The FWC regularly allows an application lodged beyond the time allowed where the sole cause of the delay is representative error.

[12] In my experience the CFMEU is very diligent in complying with Directions of the FWC and procedural rules and regulations of the FWC. Indeed as soon as the CFMEU became aware of the error it acted expeditiously and diligently to overcome its error. It seems to me that this is an occasion where the applications fell between narrow cracks.

[13] I consider exceptional circumstances exist and I will allow the applications. They will be referred back to the conciliation pool.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 30 October 2013.

Respondent, 11 November 2013.

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