Peter Blaise Sargent v Workpac Mackay
[2023] FWC 2467
•3 OCTOBER 2023
| [2023] FWC 2467 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Blaise Sargent
v
Workpac Mackay
(U2023/7792)
| DEPUTY PRESIDENT LAKE | BRISBANE, 3 OCTOBER 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Mr Peter Blaise Sargent (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with WorkPac Pty Ltd (the Respondent).
On the Form F2, the Applicant did not know when he commenced working for his employer. The Respondent noted in their Form F3 that the Applicant started his employment on 30 November 2022. The Applicant states he was dismissed on 20 June 2023 and that his dismissal took effect on 26 July 2023. The Respondent refutes this stating that the Applicant was dismissed on 4 July 2023.
The Applicant lodged his application on 20 August 2023. The application was lodged 4 days outside the statutory time limit prescribed by s.394(2) of the Act if considering the Applicant’s Form F2 or 26 days outside the statutory time limit from the Respondent’s Form F3.
The question before me is therefore whether the Applicant should be granted an extension of time to lodge her application pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.
Directions were issued and material was filed by each party. A hearing was held before me on 24 August 2023.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:
“(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 like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]
It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
The Applicant stated the following for the reasons for delay:
On numerous occasions I tried to make contact with my Employer (Workpac) with regards to the case and monies owing to me.
I find it very unusual for someone to be terminated, then sent a Letter of Offer for reinstatement for the role that I was terminated from with the Employer knowing full well they had breached protocols and procedures involving work contracts, safety procedures and outcomes.
Also there are false breaches and accusations made against both my work and work practices which I find offensive and uncalled for.
Due to these actions I have suffered depression / illness.
The Applicant also provided the following as his submissions when asked for submissions regarding an extension of time:
Undue bias on correction of letters of Offer by company in question (Workpac)
As per work practices and safety requirements I have had 100% attendance, fit for work and due diligence. I have always complied with safety requirements and policies during my past 15 years in this industry.
On the 8th June 2023, I attended a fit work drug and alcohol testing which consisted of:
Alcohol test negative
2 x swab tests were deemed inconclusive (Caval Ridge standard fit for work test)
On request 1 x urine specimen was taken – result being negative.
Supervisor was notified by Testing department and insisted on sending my test to pathology (which contravenes AS/NZ4308/2008 standards for drug testing)
At no stage has there been any evidence or correspondence that has supported the outcomes/accusations made after multiple requests made by myself in regards to the results/the right to appeal. (AS/NZ4308/2008 standards for drug testing.
The outcome on the 04th July also included fabricated breaches which contributed to the outcome of a Serious/Gross Misconduct leading to the Termination which is intended to forfeit the employees right to entitlements.
I feel I have acted in a fair and amical nature; I have received stone walling in multiple requests to gain information/documentation and closure by the company in question.
But recently (as of the 24th August 2023 [in breach of the Workpac Coal Mining Agreement 2019 paragraph 6.5.9, 20.9 paid entitlements]) I have received a portion of my entitlements from the respondent Company.
In Giles v Coal Train Australia Pty Ltd, Deputy President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]
The Applicant stated in his oral submissions that he was unfamiliar with the Commission or the law. When asked about the Gryphon Psychology – EAP that the Applicant attached, the Applicant stated that he did not use it. Furthermore, no medical certificates or evidence was established regarding his depression or illness which caused the delay.
The Applicant stated that he was sent a Letter of Offer after his termination, which the Respondent stated was an administrative error. Although there was confusion regarding the process, it was clear that the Applicant was dismissed on 4 July 2023 when he was sent a termination letter.
Ignorance of the timeframe is not a sufficient reason for delay.[8] The Applicant did not indicate any disadvantage which would have caused the delay or signs of proactively getting the Application submitted with the Commission once he knew about the unfair dismissal process. However, I acknowledge that the Applicant appeared to be incomprehensible or difficult to get an answer regarding the timeline of when he knew about the unfair dismissal process or why he did not lodge the Application within time.
However, multiple opportunities were provided to the Applicant providing an explanation of the process. I note that Directions were issued on 8 September 2023 regarding the extension of time. When the Applicant’s response did not contain information about the extension of time, I instructed my Associate to send a further email on 18 September 2023 requesting an explanation of why the application was out of time.
Dear Mr Sargent,
I confirm receipt of this document. The document does not address why your application was out of time. The Deputy President can only consider the merits of the application if there were exceptional circumstances causing the delay of your application outside the 21-day statutory time frame.
You were instructed to provide submissions and evidence adding onto the response by the Unfair Dismissal Allocation Officer’s email regarding why your application is out of time by close of business Friday 15 September 2023.
Please find the following resource: Extension of time for lodging an application | Fair Work Commission (fwc.gov.au)
The Commission must be satisfied that there were exceptional circumstances:
The Commission will take into account:·the reasons for the delay
·any action taken by the former employee to dispute the dismissal
·prejudice to the employer (including prejudice caused by the delay)
·the merits of the application, and
·fairness between the former employee and other persons in similar positions.
You are given until close of business tomorrow 19 September 2023 to file this material with the Commission. If you do not provide this, your initial response will be accepted as your submissions for an extension of time.
The Applicant added more material, but it did not address the reason for delay. During the Hearing, I provided the Applicant a further opportunity to provide reasons for the delay. The Applicant did not provide any reason for delay.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
There appeared to be a typo on the Termination letter where it states 12 June 2023 despite a show cause letter being sent on 30 June 2023. However, the last section of the paragraph confirms that the Applicant was informed of his termination on 4 July 2023.
However, the Applicant should have been aware of his dismissal date when he received a termination letter on 4 July 2023 as the date of his dismissal which was confirmed in oral evidence by the Respondent. It was also acknowledged on the Applicant’s submission where he stated ‘The outcome on the 04th July also included fabricated breaches which contributed to the outcome of a Serious/Gross Misconduct leading to the Termination which is intended to forfeit the employees right to entitlements’
This consideration does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not take action to dispute the dismissal. The Applicant stated in an email on 30 June 2023 that he was seeking an employment separation certificate, 26 hours holiday pay owed, 2 days stand down pay and one week’s notice of termination. The Applicant writes in this email that he would like to ‘move forward’. This indicated that the Applicant had accepted his dismissal and was not contesting it.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent did not address that an extension could potentially cause a degree of prejudice. I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[9] 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.”
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. However, considering that the Applicant appeared to have difficulties understanding what was asked of him, I have made an initial assessment of the merits for completeness.
The Applicant had worked as a Mobile Operator at Caval Ridge Mine for the Respondent. On 8 June 2023, the Applicant was asked to attend site for a random drug and alcohol test where he recorded an initial reading of non-negative for methamphetamine. Secondary testing also resulted in a positive reading for methamphetamine.
The Applicant appeared on his submissions that he was denied fairness in that he did not have an opportunity to appeal the drug testing process. It appeared that the Applicant was given procedural fairness through a show cause meeting and opportunity to respond. It also appeared the Respondent had valid reasons for dismissal considering the failed drug test of a illicit substance. It could be possible that there is an argument of harshness, but the Applicant had only worked with the Respondent for 7 months.
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. I note that the Applicant will have challenges in establishing that there was an unfair dismissal considering potential serious misconduct.
I consider this factor as a neutral consideration as it is only sufficient for the Commission to establish the substantive application was not without merit.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]
In McBride v JA Krieger Forestry Services[2021] FWC 6284 at [5], Deputy President Colman found that a person being unaware of the requirement to lodge an unfair dismissal application within 21 days of the dismissal is not an acceptable reason for delay.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.
I Order that the application be dismissed.
DEPUTY PRESIDENT
Appearances:
P. Sargent for the Applicant
L. Page for the Respondent
Hearing details:
Brisbane
22 September 2023
Hearing via MS Teams.
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at 38.
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at 14 (Lawler VP, Sams DP, Williams DP).
[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].
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