Steven Kenneth Wood v Tronox Management Pty Ltd
[2023] FWC 2307
•30 NOVEMBER 2023
| [2023] FWC 2307 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Steven Kenneth Wood
v
Tronox Management Pty Ltd
(U2023/7128)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 30 NOVEMBER 2023 |
Application for an unfair dismissal remedy
The issues
On 2 August 2023, Mr Steven Kenneth Wood (the Applicant) or rather his sister on his behalf, applied for an unfair dismissal remedy, the Applicant having been dismissed from Tronox Management Pty Ltd (the Respondent) on or around 5 July 2023. The Respondent objected to the application on the ground that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other matters are not relevant for the purpose of the application.
The unfair dismissal application received by the Commission had been completed and filed, by the Applicant’s sister, Ms Anita Farrugia. Whilst directions were issued on 24 October 2023, it again appeared that Ms Farrugia had completed the Applicant’s Outline of Argument in respect of seeking an extension of time. Briefly stated, the Commission was informed that the Applicant was being held on remand and was therefore unable to complete the requisite documentation, such as the Form F2.
To enable the extension of time matter to be determined, the Commission conducted an MS Teams telephone hearing, with arrangements being made with the relevant facility in which the Applicant was held on remand. That same facility, Hakea Prison, ensured that the day prior to the hearing, the Applicant had access to the Digital Hearing Book (in which the materials filed by both parties had been included).
The Applicant disputes that his dismissal occurred on 5 July 2023. The Applicant contends that the letter of termination was not provided to his next of kin, Ms Farrugia, until 10 July 2023 and that he was not advised of his dismissal until later that week.[1] Whilst a letter of termination was purportedly posted to the Applicant at the facility, the Applicant advances that he had not received it. The Applicant therefore appears to attribute the potential delay in making his unfair dismissal application on the Respondent not taking action to ensure he received timely notification of his dismissal.
The Respondent advanced its objection to the extension of time on the basis that the dismissal took effect on or about 5 July 2023, coinciding with when, according to the Respondent, the letter of termination was hand delivered to Ms Farrugia’s home address and posted to the facility in which the Applicant was being held on remand.
During the hearing, I raised with the parties the prospect that if the Applicant’s version of events was found to be correct, the dismissal may have taken effect later than 5 July 2023. If the date of dismissal was 5 July 2023, the application would have been made seven days late. However, if the date of dismissal was 10 July 2023, it would have been made two days late and if the dismissal date was 12 July 2023, it would not have been late at all.
As the Applicant was not represented, I assisted with the conduct of the hearing, allowing latitude as to the form of his evidence and submissions, facilitating submissions on the relevant statutory considerations, and enabling the presentation of the cases in a strictly non-partisan manner consistent with the statutory charter of the Commission, an approach that was similarly adopted in Applicant v G4S Custodial Services Pty Ltd.[2]
Given the Applicant and Ms Farrugia were permitted to provide viva voce evidence, I considered that the appropriate course was to order a transcript of the hearing and provide both Applicant and Respondent with a copy. Parties were directed to provide their closing submissions in writing; both were appreciative of such approach. A generous timeframe was afforded to ensure that the Applicant, with the assistance of his sister, was able to fulsomely address the issues before the Commission, given his current constraints. Two days after the hearing, the transcript was forwarded through official channels to Hakea Prison.
In short, the issues before me were:
a) when did the Applicant’s dismissal take effect;
b) whether the unfair dismissal application was made within 21 days after the dismissal took effect; and
c) if it was not, whether:
i.there are exceptional circumstances that warrant an extension of time being granted; and
ii.it is fair and equitable to grant that extension.
Background
Ms Farrugia, the Applicant and Ms Therese Jackson, Human Resources Manager of the Respondent, provided evidence regarding the broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application. Whilst Ms Jackson provided her evidence in the form of a witness statement, the Applicant and Ms Farrugia were, as noted, permitted to give viva voce evidence.
It is uncontroversial that the Applicant commenced employment with the Respondent on 23 February 2009 in the position of Process Operator. Whilst employed he also held the position of Waste Management Coordinator and at the time of his dismissal, he had been working as a Process Specialist.[3]
I have traversed Ms Jackson’s evidence first, simply because she provided a comprehensive account of how the Respondent viewed the circumstances leading up to the Applicant’s dismissal. Whilst the Applicant did not challenge Ms Jackson’s evidence in cross examination, it cannot be assumed that this was because he agreed with all that she said. Whilst the purpose of cross-examination was explained, the Applicant would not be the first self-represented litigant to find the process challenging.
2.1 Ms Jackson’s evidence
According to Ms Jackson, the Applicant commenced taking periods of leave in January and February 2022, supported by an initial medical certificate for the period from 25 February 2022 to 9 March 2022.[4]
Ms Jackson gave evidence that:
a) on 17 March 2022, a return-to-work plan was established to enable the Applicant to return to the workplace on a part time basis;[5]
b) on 6 April 2022, the Production Manager (the Applicant’s Supervisor), Mr Heath Elkington, informed Ms Jackson that the Applicant had been hospitalised;[6]
c) the Applicant remained on leave in April 2022 and May 2022, with Ms Jackson having a discussion with the Applicant on 20 April 2022 about his absence and appropriate leave management;[7]
d) the Applicant provided a further medical certificate on 6 May 2022 and on 16 May 2022, advised the Respondent that he would be staying in hospital longer than first anticipated due to complications;[8]
e) on 31 May 2022, the Applicant advised Ms Jackson that he was not in a good way and needed more time off work;[9]
f) during the period of July, August and September 2022, Ms Jackson attempted to contact the Applicant by telephone, SMS and email to discuss his ongoing absence.[10] In that period, the Applicant declined to attend a fitness for work assessment[11] and email correspondence went unanswered;[12]
g) on 1 November 2022, the Applicant sent Ms Jackson an email with an updated medical certificate which certified him unfit to work for an extended period of 23 January 2023 to 23 May 2023;[13] and
h) whilst Ms Jackson responded to the Applicant’s email dated 1 November 2022, requesting that he contact her, she received no reply at that point.[14]
Ms Jackson said that on 4 November 2022, she received a telephone call from the Applicant in which he informed her:
a) he had received her emails, but did not check his email account regularly;
b) at present, he did not have a current address but was in the process of trying to find a rental;
c) he was under medical care to deal with mental health concerns and was being assisted by Ms Farrugia; and
d) he was appreciative of how supportive the Respondent had been during the period of his leave.[15]
On or about 24 November 2022, Mr Elkington informed Ms Jackson that he had a telephone discussion with the Applicant, in which the Applicant had informed him he would not be back at work until January 2023 at the earliest.[16]
Following an updated medical certificate being provided by the Applicant on 24 January 2023 (for the period 23 January 2023 to 23 May 2023), Ms Jackson emailed the Applicant and advised she would attempt to contact him to discuss his progress.[17]
Ms Jackson attempted to contact the Applicant on 27 January 2023, to no avail.[18] Then, on or about 13 February 2023, she became aware, through Mr Elkington, that the Applicant had been remanded in custody.[19]
Ms Jackson said that the Department of Justice confirmed that the Applicant had been held on remand in the period from February 2023 to May 2023.[20]
On 4 May 2023, Ms Jackson sent a letter to the Applicant, addressed to the correctional facility in which the Applicant was held, regarding the Respondent’s concerns about his fitness for work and capacity to perform the inherent requirements of the position.[21] No response was received from the Applicant.[22]
On 6 June 2023, Ms Jackson sent an SMS message to the Applicant requesting he make contact with her.[23] In response to the message, Ms Farrugia confirmed to Ms Jackson that the Applicant was in prison.[24]
Ms Jackson said that on 7 June 2023, she telephoned Ms Farrugia and Ms Farrugia informed her that she had power of attorney to manage the Applicant’s affairs and would be seeing him the following weekend.[25] Ms Jackson said that she informed Ms Farrugia that the Respondent had sent the Applicant a letter regarding his employment status and although the period for responding had lapsed, it was not too late for him to make contact with the Respondent to update it as to his status.[26] Ms Jackson further said she asked Ms Farrugia to provide her with her home address so that any correspondence sent to the Applicant could also be forwarded to her.[27]
Ms Jackson noted that Ms Farrugia subsequently provided her with her home address for this purpose.[28] The address was also the only known residential address for the Applicant.[29]
Having not received a response to her letter of 4 May 2023, Ms Jackson issued a show cause notice to the Applicant at Hakea Prison by mail on 8 June 2023. The show cause notice directed the Applicant to show cause as to why his employment should not be terminated by 30 June 2023.[30]
In addition, on or about 8 June 2023, Ms Jackson hand delivered a copy of the show cause notice to Ms Farrugia’s address and sent her an SMS to advise her the letter had been dropped off.[31]
As no responses had been received to Ms Jackson’s various attempts to contact the Applicant, including the notice of 4 May 2023 and the 8 June 2023 show cause letter, she said she advised the Applicant of his termination in writing on 5 July 2023.[32] Ms Jackson said she sent the letter of termination by mail to Hakea Prison and also hand delivered it to Mr Farrugia’s home address.[33]
2.2 Ms Farrugia’s evidence
Ms Farrugia initially gave evidence that she first became involved with helping the Applicant after he had received the first letter, the one of 8 June 2023, and the Applicant asked her to contact Ms Jackson to advise on his situation and how he was going.[34]
However, Ms Farrugia corrected her evidence noting that whilst she had not received the letter sent to the Applicant of 4 May 2023, she had actually become involved in the matter, presumedly around that time, because the Applicant asked her to contact his workplace on his behalf following his receipt of that letter.[35] Ms Farrugia confirmed that the Applicant had received the letter of 4 May 2023.[36]
Ms Farrugia gave evidence that she had, however, received the letter from the Respondent to the Applicant of 8 June 2023 and the letter of termination of 5 July 2023.[37] Ms Farrugia acknowledged that at the time the letters were sent, she had access to the Applicant’s email account, but as far as she was aware the letter of 8 June 2023 had not been emailed to him.[38]
Ms Farrugia was asked whether she recalled receiving a text message from Ms Jackson in June 2023, once she had received the letter of 8 June 2023.[39] To the best of her recollection Ms Farrugia did recall receiving the text message, and she further recalled having a discussion with Ms Jackson following that text message.[40]
Ms Farrugia gave evidence that in that call with Ms Jackson it was possible that Ms Jackson had informed her that the Applicant had not responded to the first letter of 4 May 2023.[41] Ms Farrugia acknowledged that Ms Jackson had informed her that the Respondent still welcomed the Applicant’s response and in effect implored her to get him to respond if she could.[42]
Ms Farrugia clarified that when speaking with Ms Jackson she was very clear about being able to relay information to the Applicant but that she was not involved with his workplace.[43] Ms Farrugia further emphasised that she informed Ms Jackson that she could assist with getting information to the Applicant and relaying it back to her.[44] Ms Farrugia said however, that she made it clear that she was not the decision maker and any response really needed to come from the Applicant.[45] Ms Farrugia said she also advised Ms Jackson that if she sent letters to the Applicant they needed to go via the official visit panel, because otherwise no mail could get to the right place, and if it did (get to the right place), it did not get there very quickly.[46] Ms Farrugia said that whenever she needed to send any documents to the Applicant, she always sent it via the official visit channel (of Hakea Prison).[47]
Concerning the contents of the letter of 8 June 2023, Ms Farrugia acknowledged that she had read the letter and that she was aware that the Respondent had, in the letter, asked the Applicant to show cause why his employment should not be terminated.[48]
When Ms Farrugia was questioned about the effort she made to notify the Applicant of the letter of 8 June 2023, she gave evidence that she understood from her discussion with Ms Jackson that Ms Jackson needed to speak to the Applicant’s supervisors and seek clarification on the next steps. Ms Farrugia said that as far as she was concerned, Ms Jackson was going to find out the next actions regarding the appropriate course and what was to occur next.[49] Ms Farrugia confirmed that she did not make any effort to provide a copy of the letter of 8 June 2023 to the Applicant.[50] When asked why she had not provided the Applicant with a copy of the 8 June 2023 letter, Ms Farrugia said she thought Ms Jackson was still corresponding with the Applicant and sending copies to Hakea Prison.[51]
In respect of the letter of termination of 5 July 2023, Ms Farrugia said that Ms Jackson texted her to say it had been hand delivered in her letter box.[52] When asked if she made any effort to provide the letter to the Applicant, Ms Farrugia said that she could not straight away because it was not like she could just call the Applicant.[53] Ms Farrugia further stated:
Well, I couldn't provide it to - I couldn't provide him a copy at all, but, yes, I didn't - I didn't - you know, I have to wait for my brother to call obviously. Now, I didn't get the letter on 5 July. That's a Wednesday. So I've got it the following weekend. So it would have been some time within the following week, you know, and I didn't want it to be my place to - you know, yes, I thought if he got the actual letter first, but it was - yes, it would have been the following week that I would have had the opportunity to speak to him.[54]
Again, Ms Farrugia acknowledged that she had received the letter of 5 July 2023, which had been delivered to her letterbox on a weekend, but that obviously, she did not have time to process that or speak to her brother straight away. Ms Farrugia added:
So, yes, although I had the information in my letterbox I really couldn't do anything with the information, because like I said I already advised her that it's not my situation, it's for my brother to be advised and to deal with, because it was his workplace.[55]
In response to the question ‘When were you notified of the dismissal’ in the Applicant’s Outline of Argument, as prepared by Ms Farrugia, it was stated:
The letter was hand delivered in the letterbox of Steven’s NOK 10/07/2023. Steven was no [sic] advised until that week. The letter posted to Hakea Prison was not received by The [sic] Applicant.[56]
At hearing, in response to the abovementioned information contained in the Outline of Argument document, Ms Farrugia clarified:
Sorry, that date the 10th that's when Ms Jackson texted me to see if I'd received it. I think it was delivered over the weekend before that. It was - yes, it's a Saturday, delivered to my letterbox. But obviously - yes, she had messaged me on the 10th to see if I had receipt of it, but obviously I had receipt of it, but I hadn't had a discussion with my brother, that's correct.[57]
2.3 The Applicant’s evidence
The Applicant gave evidence that he did not receive the letter of 4 May 2023 until 23 May 2023.[58] The Applicant said at this time he was in Hakea Prison. He explained that the delay in receiving the letter was due to the way it came into the prison system, noting that the officers had to read the mail first to make sure it was okay.[59]
The Applicant said that the letter required him to respond to it by 23 May 2023 and so he asked his sister to contact the Respondent to see what could be done about it.[60] However, according to the Applicant things went a bit ‘pear-shaped’ at this point because of the mental illness he was suffering during the month of June 2023, with it culminating on 12 June 2023 with him attempting to take his own life.[61] Because of his mental illness, the Applicant was moved to a different unit within the prison system, and was thereafter moved to subsequent units.[62] The Applicant said that he made no contact with his sister for a three to three and a half week period, in June 2023.[63]
In respect of the letter of 8 June 2023, the Applicant said that there was every chance that it was sent to Hakea, but because he had been moved around, it could have been in anybody’s inbox at any one of the units he had been housed and just got lost in the system. The Applicant stated that he was not disputing it was sent, but he just did not receive the letter of 8 June 2023.[64]
The Applicant stated that he spoke to his sister on or around 13–14 June 2023, but at that time the discussion was not only on issues concerning the Respondent because, said the Applicant, he had pressing issues with his head and mental issues.[65] The Applicant stated that at that time there were issues concerning his apartment, car, finances, and loans.[66] The Applicant clarified that the discussion with his sister at the time was about everything that he had to sort out, but their discussion ‘was just like just leave it for now and we just talked, just normal talk’.[67]
Regarding the letter of termination, the Applicant claimed to have not seen that correspondence albeit he acknowledged that he knew his sister had received it on or around the ‘10th or something she said’.[68] The Applicant said that his sister read it out to him on the phone after 10 July 2023[69] and he and his sister started to have discussions about what to do with his employment situation.[70] Whilst the Applicant could not pinpoint a date as to when the discussion with his sister took place regarding his dismissal, he said it would have been three to four days or within that week.[71]
In giving his evidence, the Applicant confirmed that his sister was his power of attorney[72] and she had submitted his application and supporting documentation.[73] The Applicant stated that he had not seen any of the information she had submitted until it had been provided in the Digital Hearing Book that he received the day before the hearing.
The date when the dismissal took effect
It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent argues that this date was 5 July 2023. For his part, the Applicant considers his dismissal was communicated to him within a week of 10 July 2023.
In Ayub v NSW Trains (Ayub),[74] the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[75] The Full Bench explained at paragraph [42] of Ayub:
[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…
The issue before me now is whether the Applicant had a reasonable opportunity to find out he had been dismissed on 5 July 2023. For the reasons that follow, I am not satisfied that he did and instead find that the date the Applicant’s dismissal took effect was 8 July 2023.
Ms Jackson gave evidence that she advised the Applicant of his termination in writing on 5 July 2023.[76] Ms Jackson said she sent the letter of termination by mail to Hakea Prison and also hand delivered it to Mr Farrugia’s home address.[77]
Turning first to having sent the letter of termination by mail to Hakea Prison. It is evident from Ms Farrugia’s account, which was not contested, that correspondence to the Applicant had to be sent via the ‘official visit panel’ otherwise the mail would not get to the right place and if it did, it did not get there very quickly.[78] There was no suggestion by the Respondent that the letter of termination had been mailed to the ‘official visit panel’. On this basis, it cannot be said that the Applicant had a reasonable opportunity to read the letter of termination on 5 July 2023.
However, evidence was before the Commission that Ms Jackson had hand delivered the letter of termination to Ms Farrugia’s home address.[79] In cross examination, Ms Farrugia gave the following evidence:
Right, okay. In the documents that, or the email that you had sent to the Commission in response to the Commission's directions on 24 October to deal with this out of time issue, if you remember you responded and sent an email explaining your position and Mr Wood's position as to why the application should be accepted late, if I just read from your email in respect of the letter of termination you say from your email, 'The letter' - that is the letter of termination of 5 July - 'was hand delivered in the letterbox of Steven's NOK' - 'which I assume is next of kin - 'on 10 July 2023. Steven was' - you say 'no', but I believe you may have meant to say 'not advised until later that week'? That's correct. Sorry, that date the 10th that's when Ms Jackson texted me to see if I'd received it. I think it was delivered over the weekend before that. It was - yes, it's a Saturday, delivered to my letterbox. But obviously - yes, she had messaged me on the 10th to see if I had receipt of it, but obviously I had receipt of it, but I hadn't had a discussion with my brother, that's correct.
Yes. So just to confirm 5 July was a Wednesday?‑‑‑Yes.
So if it was received, by your evidence you say it was received in your mailbox on the Saturday which would have been 8 July; is that correct?‑‑‑That’s probably correct, yes.
Right. Now, just one final question. You’ve said in your evidence that you remain Mr Wood’s Power of Attorney, and in terms of this application, Ms Farrugia, you filed the application on his behalf, and you’ve liaised with the Commission in terms of the out of time matter?‑‑‑Right. Yes.
Wouldn’t you then be obligated as his Power of Attorney to notify him of these documents that came into your possession relating to his employment?‑‑‑Yes, but how would I notify him if I can’t contact him direct? Would Tronox not send official documents so that he could get the information? You know, I only have certain times that he can call me if he is not in a lockdown. So I’m not really sure how you would want me to advise him. You know, it’s (indistinct) impossible, like, you know, it obviously takes time to provide someone that information when you can’t just speak to them constantly. [80]
In such circumstances, I hold the view that the Applicant had a reasonable opportunity to find out that he had been dismissed as of 8 July 2023. It was at this time that the Applicant’s power of attorney, Ms Farrugia, who had the legal capacity to deal with the Applicant’s affairs, said that she had received the letter of termination in her mailbox.[81] As to Ms Farrugia having the legal capacity to deal with the Applicant’s affairs, this was apparent from the evidence of both the Applicant and Ms Farrugia. It is uncontroversial that Ms Farrugia submitted the Applicant’s unfair dismissal application, and, in accordance with the directions, his documents in support of his application, to this Commission. Ms Farrugia did so without the Applicant first seeing the documents. While it is argued that the Applicant was not informed of his dismissal until the week commencing 10 July 2023, as this was when Ms Farrugia communicated to him his dismissal, it is nevertheless clear that Ms Farrugia has acted on the Applicant’s behalf throughout the entirety of this matter.
It is further observed that there is no evidence that suggests that Ms Farrugia was in receipt of the letter of termination before this time. For example, it is not apparent that the Respondent sent the letter of termination by registered post to Ms Farrugia.
As of 10 July 2023, Ms Farrugia had confirmed receipt of the letter of termination having received an enquiry from Ms Jackson.
Having found that the Applicant had been provided with a reasonable opportunity to find out he had been dismissed on 8 July 2023, it follows that the date when the dismissal took effect was that same date. Therefore, the Applicant’s unfair dismissal application was made two days late.
Extension of time
Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[82] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[83] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[84]
In the directions issued to the parties on 24 October 2023, both were referred to s 394(3) of the Act and the meaning of ‘exceptional circumstances’. At hearing the parties were again advised of the relevant statutory provisions.
For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.[85]
4.1 Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[86] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances. A credible explanation for the entirety of the delay will usually weigh in the applicant’s favour however, all of the circumstances must be considered.[87]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[88] However, the circumstances from the time of the dismissal are considered to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[89]
The reason for the delay did not appear to be the Applicant’s ignorance about the time limit of 21 days, but rather a culmination of factors stemming from his having been held on remand and his mental health challenges.
By letter dated 4 May 2023, the Respondent advised the Applicant of the following:
…
·20 April 2022 via telephone you confirmed you were hospitalised and very unwell.
·6 May 2022 via email you provided another medical certificate and confirmed you remained unwell.
·16 May 2022 you emailed confirming medical complications and the need to remain absent longer.
·31 May 2022 via telephone you confirmed you remained in hospital and would need longer off work.
·4 July 2022 via SMS and then telephone we requested you undertake an independent assessment by Dr Kain Tronox’s Occupational Physician. You indicated you were not ready to do so as you were experiencing significant mental health issues and that you did not believe it was likely that you would be able to work for some time.
·19 July 2022, 8 August 022, 15 August 2022, 20 September 2022, 1 November 2022 Tronox attempted to contact you by phone, SMS and email and you did not respond.
·1 November 2022 you emailed a revised medical certificate extending your absence. You did not respond to phone or email messages from Tronox.
·24 January 2023 and 27 January 2023 you emailed a revised medical certificate to continue absence until 23 May 2023. Again you did not respond to email, phone or text messages from Tronox.
On 13 February 2023 we were advised that you are an inmate of Hakea Prison and more recently were advised, as stated above, that your likely trail date is early 2024.
Whilst the current medical certificate provide confirmation for your absence until 23 May 2023, beyond that we are unaware of your likely return to work in the immediate future. Since your absence has been for a substantial period, we are considering your ongoing employment at Tronox...
Tronox is considering all options available to it in relation to your employment in light of the above issues, including potential termination of your employment.
In particular, Tronox is concerned that:
a.You are unable to perform the inherent requirements of your Pre-injury Position and we have no clear indication of your return to work date;
b.You have been absent for over 12 months without any foreseeable, likelihood of returning to work within the next few months; and
c.There are no reasonable adjustments or accommodations that can be made that would enable you to perform the inherent requirements of your Pre-injury Position at Tronox.[90]
The Applicant gave evidence that he became aware of the contents of the letter of 4 May 2023 on 23 May 2023 and because he was being held on remand, he asked his sister to contact the Respondent to see what could be done about it.[91] As of 23 May 2023, I am satisfied that the Applicant was placed on notice that his employment was at risk of termination.
However, there are several factors that arose that have led me to find that the Applicant has provided a plausible reason for the two-day delay in making his unfair dismissal application.
First, I have found that Ms Farrugia was the Applicant’s power of attorney and was imbued with the authority to act on his behalf. It was therefore not unreasonable for the Respondent to have relied upon Ms Farrugia to communicate to the Applicant the correspondence of 8 June 2023 and 5 July 2023. Ms Farrugia’s evidence is that she did not inform the Applicant about the correspondence of 8 June 2023 and that she waited until the week of 10 July 2023 to communicate to the Applicant that he had been dismissed effective 5 July 2023. Whilst appreciative of the difficulties faced in communicating with the Applicant whilst he was being held on remand, there was a striking lack of urgency in respect of informing the Applicant that his employment had ended.
Undoubtedly that lack of urgency appears to have arisen from Ms Farrugia’s own apprehensiveness about communicating to her brother that he had dismissed, so much is evident from evidence recorded on Transcript at [PN74]:
So it would have been some time within the following week, you know, and I didn't want it to be my place to - you know, yes, I thought if he got the actual letter first, but it was - yes, it would have been the following week that I would have had the opportunity to speak to him.[92] (italics for emphasis).
However, as her brother’s power of attorney and as the person who had acted on the Applicant’s behalf for the entirety of this matter (with the exception of the hearing and the provision of closing submissions), Ms Farrugia was charged with advising her brother of his dismissal on an urgent basis. The Applicant cannot be held responsible for his sister’s reluctance to communicate to him, his dismissal. Albeit such reluctance was arguably understandable given what had unfolded in June 2023.
Second, it is evident that during the month of June 2023, the Applicant faced significant mental health challenges – such that he attempted to take his own life. Whilst there is no medical certificate or medical report to suggest that the Applicant was so incapacitated from the time of his dismissal up until the making of his application, that he could not make his application prior to the date that he did, the evidence of both the Applicant and the Respondent sets out a protracted history of being unfit for work, and the evidence of the Applicant is such that he has suffered from ongoing depression.
Third, it proves necessary to address a single member decision of this Commission in Harris v GM Holden Ltd (Harris).[93] In Harris, Ms Fox lodged an application pursuant to s 394 of the Act on behalf of her partner, Mr Harris, who was being held on remand. Mr Harris’ employment had been terminated with effect on 1 May 2015, he had been held on remand since 21 March 2015 and his unfair dismissal application had been made on 8 June 2015. In considering the reasons for the delay in the lodgment of the application, Senior Deputy President O’Callaghan took Mr Harris’ circumstances and those of Ms Fox into account. In doing so he accepted Ms Fox’s advice that she acted in concert with and on behalf of Mr Harris and applied the considerations that would normally have been relevant to an applicant, to her. The Senior Deputy President concluded that the reasons for the delay in the lodgment of the application were primarily the result of delays on the part of Ms Fox in actioning and pursuing that application. Whilst those delays were understandable, the Senior Deputy President was not satisfied that they could be regarded as exceptional.[94]
In arriving at his conclusion, the Senior Deputy President considered, amongst other factors, the following:
[14] Given that Ms Fox has acted on Mr Harris’ behalf throughout the entirety of this matter, I am not satisfied that, Mr Harris’ imprisonment, of itself, represents an exceptional circumstance. Having taken the entirety of the circumstances of this matter into account, I am not satisfied that acceptable reasons for the delay have been demonstrated.
[15] It is clear from the application that Ms Fox and Mr Harris was aware of the termination of Mr Harris’ employment on the day it took effect and that she and Mr Harris were aware of the likelihood of that employment termination well before it occurred.
[16] I have taken into account the fact that, apart from the late lodgement of this application, Ms Fox sought advice from Mr Harris’ union and had access to the lawyer advising him in relation to the criminal charges against him. I have also noted that Ms Fox remained in contact with Holden management representatives. Whilst I have accepted that Mr Harris’ imprisonment has limited his capacity to take other actions to dispute the termination of his employment, I not satisfied that the actions, other than the lodgement of this application, taken by Ms Fox so as to challenge the termination of his employment, support an extension of time on the basis of an exceptional circumstance.
In respect of the merits of the application, the Senior Deputy President observed:
To the extent that Mr Harris was dismissed on the basis that he had not provided documentation relative to the reasons for his absence or any expected return to work date, his imprisonment without a conviction being recorded against him may give rise to an arguable case. Any decision on the merits of the application would require far more extensive consideration than that which is available on the material before me. In this regard, I have considered the merits of the application to be a neutral factor relative to the extension of time issue. I have, however noted that there is no information before me that goes to when Mr Harris may be able to participate in any hearing of an application of this nature.[95]
The facts in Harris are distinguishable to those that confront me now. There was no proposition in Harris that Mr Harris suffered from ongoing depression and had attempted to take his life. Notwithstanding, the observation that Mr Harris’ imprisonment, of itself, did not represent an exceptional circumstance is puzzling, albeit admittedly such conclusion must be confined to the facts in that matter. The evidence before me is highly persuasive of a finding that once held on remand or otherwise imprisoned, communication with the ‘outside world’ is markedly compromised. The Applicant had no access to a computer, a mobile phone, the internet, or the ability to contact Ms Farrugia when he so chose. That evidence was unchallenged. To therefore suggest that this limitation on personal freedom does not constitute a plausible explanation – whether in part or in totality – for the delay in making an unfair dismissal application, is bewildering, and cannot be accepted in this case.
Having considered the delay of two days, I am satisfied that the Applicant has provided a credible explanation for the delay, and this therefore weighs toward a finding of exceptional circumstances.[96]
4.2 Whether the person first became aware of the dismissal after it had taken effect
The Applicant did not become aware of his dismissal until the week of 10 July 2023, after it had taken effect. This is notwithstanding that Ms Farrugia was aware of the Applicant’s dismissal as of 8 July 2023. Whilst the Respondent refers to the delay as being ‘nominal’ (the delay being the two days between Ms Farrugia becoming so aware and the Applicant having been informed) such that it would not have prevented the application from having been made within the statutory period, the finding remains that the Applicant was unaware of his dismissal until the week of 10 July 2023. As such, this weighs toward a finding of exceptional circumstances.
4.3 Action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[97] I have considered all submissions and the evidence in this respect. There is no evidence before me to premise a finding that the Applicant challenged his dismissal. This weighs against a finding of exceptional circumstances.
4.4 Prejudice to the employer
I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances.
4.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[98] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said in respect to the merits of an application:
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.[99]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[100] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
However, an observation made in Harris bears repeating:
In this regard, I have considered the merits of the application to be a neutral factor relative to the extension of time issue. I have, however noted that there is no information before me that goes to when Mr Harris may be able to participate in any hearing of an application of this nature.[101]
Whilst I have concluded this factor to be one that is neutral, it remains unclear when the Applicant will be positioned to prosecute his case before the Commission. In addition, insofar as it is relevant, the Respondent notified the Applicant by letter of termination of 5 July 2023, that it understood that his capacity (or rather incapacity) to perform the inherent requirements arise ‘in the context of your imprisonment and therefore your ability to attend work in any event’.[102] At this stage, whilst there is assertion that the Applicant’s trial date is set down for early in the new year, it is unclear when precisely his trial dates are.
4.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[103]
Based on the materials filed and the circumstances, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed. As such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am satisfied that there are exceptional circumstances that support an extension. Given the period of the delay, the Applicant’s reasons why such delay occurred, noting that the Applicant was dependent on Ms Farrugia for all communication about his employment because the Respondent had not utilised the official visit panel, and that the Applicant did not become aware of his dismissal until after it had taken effect, I consider it fair and equitable to grant the extension. I therefore extend the time for lodging a complaint to 2 August 2023.
Parties will be advised in due course as to the further programming of the matter.
DEPUTY PRESIDENT
Appearances:
S Wood, Applicant
M Ivanovski for the Respondent
Hearing details:
2023.
Perth (by telephone):
14 November.
Final written submissions:
Applicant, 29 November 2023
Respondent, 28 November 2023
[1] Applicant’s outline of argument – extension of time, [1] (Applicant’s Outline).
[2] [2022] FWC 254.
[3] Respondent’s Outline of Case, [4]–[5].
[4] Witness Statement of Therese Jackson, [5] (Jackson Statement).
[5] Ibid [6], annexure TJ4.
[6] Ibid [7].
[7] Ibid [8]–[9], annexure TJ5.
[8] Ibid [10], annexure TJ6.
[9] Ibid [11].
[10] Ibid [13].
[11] Ibid [12], annexure TJ7.
[12] Ibid [13], annexure TJ8.
[13] Ibid [14], annexure TJ9.
[14] Ibid [15].
[15] Ibid [16].
[16] Ibid [18].
[17] Ibid [19], annexure TJ10.
[18] Ibid [20].
[19] Ibid [21].
[20] Ibid [22].
[21] Ibid [25], annexure TJ12.
[22] Ibid [26].
[23] Ibid [27] Annexure TJ13.
[24] Ibid [28].
[25] Ibid [29].
[26] Ibid.
[27] Ibid.
[28] Ibid [30].
[29] Ibid.
[30] Ibid [31], annexure TJ14.
[31] Ibid [32].
[32] Ibid [33], annexure TJ15.
[33] Ibid [34].
[34] Transcript of Proceedings, Wood v Tronox Management ty Ltd (Fair Work Commission, U2023/7128, Beaumont DP, 14 November 2023) [PN31] (Transcript).
[35] Ibid [PN35].
[36] Ibid [PN61].
[37] Ibid [PN39]–[PN40].
[38] Ibid [PN42]–[PN43].
[39] Ibid [PN44]–[PN45].
[40] Ibid [PN47].
[41] Ibid [PN49].
[42] Ibid [PN60].
[43] Ibid [PN49]–[PN50].
[44] Ibid [PN63].
[45] Ibid [PN64].
[46] Ibid [PN31].
[47] Ibid.
[48] Ibid [PN54].
[49] Ibid [PN55].
[50] Ibid [PN57].
[51] Ibid [PN70].
[52] Ibid [PN71].
[53] Ibid [PN72].
[54] Ibid [PN74].
[55] Ibid [PN31].
[56] Applicant’s Outline (n 1) [1].
[57] Transcript (n 34) [PN75].
[58] Ibid [PN92].
[59] Ibid [PN91].
[60] Ibid [PN94].
[61] Ibid.
[62] Ibid.
[63] Ibid.
[64] Ibid.
[65] Ibid [PN95].
[66] Ibid [PN170].
[67] Ibid [PN172].
[68] Ibid [PN96].
[69] Ibid [PN99].
[70] Ibid [PN96].
[71] Ibid [PN99].
[72] Ibid [PN218].
[73] Ibid [PN219].
[74] (2016) 262 IR 60.
[75] Ibid 79 [48].
[76] Jackson Statement (n 4) [31], annexure TJ15.
[77] Ibid [34].
[78] Transcript (n 34) [PN31].
[79] Jackson Statement (n 4) [34].
[80] Transcript (n 34) [PN75]–[PN79].
[81] Ibid [PN77].
[82] (2011) 203 IR 1.
[83] (2018) 273 IR 156 (Stogiannidis).
[84] Ibid 165 [38].
[85] Fair Work Act 2009 (Cth) s 394(3).
[86] See, eg, Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9]; Roberts v Greystanes Disability Services[2018] FWC 64, [16].
[87] Stogiannidis (n 83) 165 [39].
[88] Long v Keolis Downer (2018) 279 IR 361, 370 [40].
[89] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362 366 [12].
[90] Digital Hearing Book, 57–60 (DHB).
[91] Transcript (n 34) [PN94].
[92] Ibid [PN74].
[93] [2015] FWC 4702 (Harris).
[94] Ibid [10].
[95] Ibid [19].
[96] Stogiannidis (n 83).
[97] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300.
[98] (1997) 140 IR 1.
[99] Ibid 11.
[100] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[101] Harris (n 93) [19].
[102] DHB (n 90) 64.
[103] [2015] FWC 8885, [29].
Printed by authority of the Commonwealth Government Printer
<PR766061>
0
15
0