Richard Smith v Resource Engineering & Design Pty Ltd T/A Resource Engineering & Design (Red)

[2013] FWC 5821

[2013] FWC 5821

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Smith
v
Resource Engineering & Design Pty Ltd T/A Resource Engineering & Design (RED)
(U2013/9976)

COMMISSIONER CLOGHAN PERTH, 22 AUGUST 2013

Application for relief from unfair dismissal.

[1] In this application, Mr Smith is seeking a remedy for alleged unfair dismissal from his former employer. The application was not made within 21 days after the dismissal took effect, consequently, the Commission is required to determine whether exceptional circumstances exist to allow the filing of the application late.

[2] Mr Smith claims he was in a “delicate position” following his dismissal and wanted to remain “in favour” with his former employer. The Commission has considered whether this, and other matters that existed, were exceptional circumstances.

PROCEDURAL BACKGROUND

[3] On 28 May 2013, Mr Richard Andrew Smith (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Resource Engineering and Design Pty Ltd T/A Resource Engineering and Design (Employer).

[4] Mr Smith’s employment was terminated with effect on 15 April 2013.

[5] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[6] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect pursuant to paragraph 394(2)(a) of the FW Act.

[7] As the application was not made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(b) of the FW Act, it is necessary to determine whether exceptional circumstances exist to allow the application to be made on 28 May 2013.

[8] In determining whether exceptional circumstances exist, it is necessary to take into account the criteria in subsection 394(3) of the FW Act which are as follows:

(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.

[9] I advised the parties that I intended to deal with the issue of whether there are exceptional circumstances to allow Mr Smith to file his application on 28 May 2013, by way of written submissions. To assist in the written submissions, I issued procedural directions on 10 July 2013.

[10] The Applicant provided his submission on 25 July 2013.

[11] The Employer provided its submission on 8 August 2013.

[12] The Applicant did not provide a response to the Employer’s submission of 8 August 2013.

[13] Having received the submissions from the parties, this is my decision and reasons for decision on whether the Commission is satisfied that exceptional circumstances exist to allow the application to be filed on 28 May 2013.

APPLICANT’S SUBMISSION

[14] The following is a summary of the Applicant’s submission:

• Mr Smith received a letter of termination of employment on 18 March 2013 which set out his termination date as 15 April 2013;



• the Employer had another mine site contract and stated that it would offer further work to some employees;



• on 4 April 2013, he sought advice on his letter of termination of employment with an industrial agent;



• in the week following his termination of employment, Mr Smith complained to Ms Sussan Cole, Chief Financial Officer about his redundancy entitlements. Mr Smith was advised that he had received all he was legally entitled to receive;



• Mr Smith telephoned Ms Cole on a further 3 or 4 occasions requesting written confirmation that he was not entitled to receive any further monies as a result of being made redundant;



• on receiving his Employment Separation Certificate on 23 May 2013, Mr Smith came to the view that he would not receive any further monies and took immediate steps to make an application for unfair dismissal;



• Mr Smith expected to “be offered another position on another mine site or he would receive a redundancy payment”;



• Mr Smith was aware of his dismissal on 15 April 2013 before it took effect;



• he made Ms Cole aware that, “he was not happy about the termination if he wasn’t getting a redundancy payment”;



• the application has merit as Mr Smith: had not been made genuinely redundant; should have been offered employment at another mine site; did not receive redundancy entitlements under the relevant enterprise agreement and the Employer has breached s.785 of the FW Act;



• there is no discernible prejudice to the Employer; and



• Mr Smith was entitled to be treated the same as other employees and be either redeployed or receive a redundancy payment.

EMPLOYER’S SUBMISSION

[15] A summary of the Employer’s submission is as follows:

• the Employer was contracted by Fortescue Metals Group Limited (FMG) at the Christmas Creek mine site;



• FMG advised the Employer in March 2013 that its contract would cease on 15 April 2013;



• the Employer, on 18 March 2013, advised employees, including the Applicant, the consequences of the FMG contract ending;



• the consequences of the FMG contract ending for employees was that all positions at the mine site would be made redundant. However, if alternative work could be provided, it would be, but this was unlikely except for a small group of employees;



• the Applicant was provided with a letter of termination of employment on 18 March 2013;



• the Applicant’s employment conditions were not regulated by an enterprise agreement but a common law contract of employment;



• Mr Smith was not entitled to a redundancy payment;



• the Applicant’s application is 22 days outside the statutory timeframe;



• the “real” dispute relates to the fact that the Applicant did not receive a redundancy payment;



• the Applicant was “tardy in the extreme” and had a “careless attitude to the Commission process and timelines”;



• there is no dispute that the Applicant became aware of his termination of employment before it took effect;



• the Applicant disputed his lack of redundancy payment and ‘was not happy about the termination” but this does not constitute “disputing the dismissal”;



• the Employer is prejudiced by the fact the Construction Operations Manager who was responsible for demobilisation of the workforce is no longer employed and would be a “key witness” if the matter proceeded to hearing;



• the termination of employment was a genuine redundancy; and



• other employees who had been employed by the Employer have made applications to the Commission within the prescribed time.

CONSIDERATION

[16] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[17] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[18] The vast majority of employees who do make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”. In my view, Parliament’s prescription of having applications filed within 21 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.

[19] The burden lies with Mr Smith to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[20] On 18 March 2013, the Employer convened a meeting of all its employees at the Christmas Creek site to advise them that FMG had terminated its contract with the Employer effective from 15 April 2013. As a consequence, all employees would be made redundant from the same date - 15 April 2013.

[21] It is not disputed that the Employer’s representative indicated at the meeting on 18 March 2013 that if alternative work could be provided, it would be offered to the employees. The Employer asserts that the employees were advised “that there would be few employees for which alternative work could be arranged” and “most employees would be terminated because of the redundancy”.

[22] The Applicant was provided with a letter of termination dated 18 March 2013. The letter informs the Applicant that his position has been made redundant, his last day of employment would be 15 April 2013 and he would receive a redundancy payment, if applicable.

[23] On 4 April 2013, Mr Smith sought advice from his industrial agent regarding the letter informing him of his termination of employment.

[24] Mr Smith ceased employment on 15 April 2013.

[25] On 18 April 2013, the Applicant received his final pay which did not include any redundancy payments.

[26] Shortly following receipt of his final pay, Mr Smith spoke to Ms Cole “and complained about his redundancy entitlements and was told he was paid all he was entitled to and the respondent had legal advice”.

[27] The Applicant states that he subsequently telephoned Ms Cole on 3-4 occasions seeking written confirmation of her advice. The Applicant was unable to speak to Ms Cole and consequently did not obtain written confirmation of his lack of redundancy entitlements.

[28] The Applicant submits he:

“ ...was in a delicate position following the dismissal. On the one hand he wanted to remain in favour with the respondent so that he could work at the other mine site if it considered him for the position but on the other hand he wanted to obtain his entitlements if that employment was not forthcoming.”

[29] On 23 May 2013, the Applicant received his Employment Separation Certificate. At this point, Mr Smith claims that it was “brought home to [him]” that he was not going to be redeployed or receive redundancy payments.

[30] When an employee considers that they have been unfairly dismissed from their employment, he or she has 21 days after the dismissal took effect, to file an application seeking a remedy for the alleged unfair dismissal. The discretion to make the application, in the first 21 days, is “in the hands” of the dismissed employee. The dismissed employee can determine during the 21 days when he or she will make the application and know absolutely, subject to certain procedural requirements, it will be accepted by the Commission.

[31] However, should the application not be made within 21 days after the dismissal took effect, that certainty evaporates and acceptance of the application is now “in the hands” of the Commission in applying the provisions of subsection 394(3) of the FW Act.

[32] In this application, Mr Smith has not complied with the statutory timeline and has the onus of persuading the Commission that the “delicate position” he found himself in constitutes “exceptional circumstances”.

[33] Effectively, Mr Smith made a judgement. Put differently, he took a risk that in the period after his dismissal, he would be redeployed by the Employer to another mine site. Mr Smith may have been comfortable with taking that risk immediately after 15 April 2013 when he was dismissed, however, in my view, that tolerance for risk should have been reduced considerably the closer it came to 21 days after the dismissal - or the statutory timeline.

[34] In addition to the Employer not offering Mr Smith redeployment, the statutory timeline came and passed to such an extent that it was 19 days after the 21 days had expired before he took any action to contest his dismissal. The application was filed a further three (3) days later - a total of 22 days had then elapsed beyond the statutory timeline.

[35] Put simply, the reasons for the delay is that Mr Smith took a risk which perhaps was understandable. However, when that risk did not “bear fruit” within the 21 days, his own inaction meant that the statutory timeline passed and it was not until 22 days later that the Commission received the application.

[36] Inaction is not exceptional circumstances and the Commission cannot be an insurer of transferred risk taken by the Applicant.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[37] It is not disputed that Mr Smith became aware of his impending dismissal verbally on 18 March 2013. Mr Smith also received correspondence confirming his dismissal on 15 April 2013 which was also dated 18 March 2013.

[38] The indisputable facts are that Mr Smith was given over four (4) weeks’ notice of the termination of his employment. In the third week of the fourth week, Mr Smith sought industrial advice. Consequently, it cannot be argued by Mr Smith that he was unaware of his impending termination of employment. Further, he was sufficiently concerned to seek industrial advice about his impending dismissal. Mr Smith cannot be accused of being passive in the weeks leading up to the end of his employment.

[39] The events leading up to the termination of employment are in stark contrast to his actions after his dismissal. The only submission I have from the Applicant is that between 15 April and 23 May 2013, Mr Smith spoke to Ms Cole on one occasion and attempted to speak to her on 3-4 occasions.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[40] The Applicant, as I am sure the other employees were, was unhappy with the Employer losing the contract with FMG and having their employment terminated. However, “unhappiness” and “disputing” the dismissal are not the same thing.

[41] Further, I note that the Applicant’s communication with Ms Cole was in relation to confirming his redundancy payment and “paper work”; it was not disputing his dismissal.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[42] The Applicant submits that there is no discernible prejudice to the Employer in filing a late application. The Employer submits that, if the application proceeded to hearing, a key witness is no longer employed by the Employer. I have adopted a neutral position with regards to this criterion.

Paragraph 394(3)(e) - the merits of the application

[43] It is not uncommon in determining this issue for the parties to advise the Commission that their respective cases have merit. The key issues for determination, and hence their respective cases, can only be determined after a hearing where the veracity of evidence is tested. I have adopted a neutral consideration of this criterion as to whether time should be extended to file the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[44] The Applicant submits that other employees in the same circumstances were either redeployed or paid redundancy entitlements. In my view, that submission is not on point with respect to the criterion. The Employer advises that some employees in the same circumstances as the Applicant filed applications within the statutory timeframe seeking a remedy for alleged unfair dismissal. I have given this circumstance some weight in my overall consideration. However, it is relatively minor in comparison to the consideration in paragraphs [20] to [36].

CONCLUSION

[45] In conclusion, for the reasons I have set out above generally and those in particular, I am not satisfied that exceptional circumstances existed which led to the delay in Mr Smith filing his application. Accordingly, the application must be dismissed. An Order to this effect will be issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 25 July 2013.

Respondent: 8 August 2013.

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