Patrick Heagney v Ausfield Pty Ltd T/A Coastal Midwest Transport

[2014] FWC 6668

[2014] FWC 6668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick Heagney
v
Ausfield Pty Ltd T/A Coastal Midwest Transport
(U2014/11623)

DEPUTY PRESIDENT MCCARTHY PERTH, 6 OCTOBER 2014

Application for relief from unfair dismissal - extension of time.

[1] On 13 August 2014, Mr Patrick Heagney (the Applicant) lodged an Unfair Dismissal Application (the Application). The Applicant asserts that he was unfairly dismissed from his employment with Ausfield Pty Ltd T/A Coastal Midwest Transport (the Respondent). The Applicant states that his dismissal took effect on 27 June 2014. The Application was therefore lodged outside the 21 days allowed by s.394(2)(a) of the Fair Work Act 2009 (the FW Act).

[2] The reasons for the delay and why the Fair Work Commission (FWC) should accept the Application out of time were stated in the Application as follows:

“I was not intending to do anything in regard to my being terminated. I have since had my next surgery and upon thinking about how the company have treated me with the reason they have used. I decided to pursue this further. As now for the first time in my life I have been sacked.”

[3] On 20 August 2014, I wrote to the Applicant requesting that he address the considerations I must take into account in determining whether exceptional circumstances exist to allow an extension of time.

[4] On 29 August 2014, the Applicant provided further submissions. The Applicant submitted that:

“A. I had no intention in pursuing my dismissal as I think I was in shock to think that at an earlier meeting as well as the recent one I was told I gelled the workers together and they had never worked so well in a team & that the yard had never been run so smooth. I thought no… if im such an asset why would you be doing this to me? In the years I did the Operations Manager Position and Yard Manager Position, I would work between 40-60 hours per week and overtime and bonuses were not paid to me, even at Christmas and throughout the year when bonuses were paid and some were quite substantial I didn’t receive any, I have even cut short weekends away to deal with drivers at the yard, and as stated in my work contract bonuses are paid to staff who perform well and show productive work hours etc, to which I did as stated by both Michael and John (who is the company). At our last meeting I did inform Michael that my surgery was due soon and that I didn’t want to leave my job. So upon reflection I have decided to query my termination, as the wording as to why I was terminated seems quite detrimental, but I don’t feel I could go back to the company if that was on offer as I feel it would be too humiliating as by now all the staff are aware as to my being terminated.

B. I only became aware of my termination after I received a letter on the 5^th July 2014.

C. I have taken no other action in disputing my termination, at our last meeting I suggested they have someone act in the position I held, which is what I also suggested at our meeting earlier in the year. (Michael did not attend this meeting even although I did see him in the yard)I did say im not leaving if you want me gone so badly you’ll have to sack me (which was said in jest really), as I did enjoy my job. I did also mention that thankfully I had insurance which was paying toward my loss of wages. I honestly didn’t think they would actually do it, it was a comment I made in the moment. On the day of the meeting I was un-well and Michael can attest to that as he asked if I was ok to continue with the meeting, his assistant also attended the meeting and appeared to be taking minutes.

D. I feel the delay in my application would in no way prejudice me or the company or reflect on the outcome of this investigation.

E. My application was to ensure the company are not detrimental to me if I was to request a reference for future job applications. I would like a reference that states my work history, work ethics , duties ,my job description whilst employed as a sub-contractor truck driver (for JT Transport), and then whilst I was Operations Manager for the Birla Nifty Mine for 2 years as well as my current role of Yard Manager.

F. In all fairness I believe the company could have held my position open, the sudden onset of my health issue has been quite a roller coaster ride for me this year both mentally and physically and all the while I have submitted regular medical certificates to Coastal Midwest. At one point I received, as did my doctor a letter from Michael with what was like a return to work programme. I along with my doctor had advised I was totally unfit for all work duties, but they weren’t happy with that response, even though the doctor did state in the letter he could have more details available in 6-8 weeks’ time. This year has been quite hard on me mentally, to the point that my moods have been affected and it’s not just me it effects, there is also my wife (who works full time at quite a demanding job) who has had to work, run a house and commit to taking me to many medical appointments and my family and friends, everyone is suffering whilst I am unwell.”

[5] On 15 September 2014, the Respondent provided submissions in response to the Applicant’s submissions.

Considerations

[6] The Applicant’s submissions appear to indicate that the reason for the delay was that he had changed his mind. In his Application the Applicant stated that he was “not intending to do anything in regard to my being terminated ... and upon thinking about how the Company treated [him] with the reason they have used [he] decided to pursue this further.”

[7] I consider that an Applicant changing their mind as to whether or not to dispute their dismissal weighs against a finding of there being an exceptional circumstance.

[8] The Applicant states that he became aware of the dismissal on 5 July 2014 after he received a termination letter from the Respondent. The Respondent submitted that on 27 June 2014, a termination letter was sent to the Applicant’s address by registered post and to the Applicant’s email address. The Respondent stated that they had been communicating with the Applicant via that email address.

[9] The Applicant has not provided any explanation as to why he did not receive the letter until 5 July 2014. However, I note that even if I was to find that the Applicant only became aware of his dismissal on 5 July 2014 the Application would still have been lodged outside the 21 day timeframe provided by the FW Act. This element of my considerations weighs against a finding of exceptional circumstances.

[10] In his submissions the Applicant concedes that he has taken no action to dispute his termination. This element of my considerations does not weigh in favour of a finding of exceptional circumstances.

[11] The Respondent submits that following the Applicant’s dismissal they instituted a restructure. Under the restructure the position of Yard Supervisor ceased to exist and was replaced with the position of Yard Supervisor/Account Manager, this position has been offered to another employee. The Respondent stated that due to this Application the other employee has not yet been able to commence his employment in the position. I consider that there will be some prejudice to the Respondent should this Application be allowed, although not such that it would weigh in favour of the Respondent in my findings.

[12] The merits of the Application rely on the facts asserted by the Applicant and those asserted by the Respondent. The facts are contested by both sides and without a full hearing and findings in relation to those facts I am not in a position to weigh the merits of the case in either parties favour.

[13] The fairness between the Applicant and other persons in a similar position weighs against a finding of exceptional circumstances.

[14] I find that exceptional circumstances do not exist. Therefore, I will not extend the time for the filing of the Application. The Application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 29 August 2014.

Respondent, 15 September 2014.

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