Tasmanian Ports Corporation Pty Ltd - Port Of Hobart T/A Tasports

[2014] FWC 1548

[2014] FWC 1509

FAIR WORK COMMISSION

DECISION

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

Mr Richard Dormer
v
Rio Tinto T/A Hailcreek Mine
(U2013/15181)

COMMISSIONER SPENCER BRISBANE, 6 MARCH 2014

Application for relief from unfair dismissal - jurisdictional objection - application filed out of time.

Introduction

[1] This Decision relates to an application made by Mr Richard Dormer (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of her employment from Rio Tinto (the Respondent/the Employer) was harsh, unjust and or unreasonable. The Respondent in this matter has raised a jurisdictional objection (the jurisdictional objection) to the application alleging that the application has not been filed within time. The Applicant now applies for an extension of time. This decision relates to the extension of time only.

[2] The Respondent requested that the jurisdictional objection be determined prior to conciliation of the substantive matter.

[3] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties.

[4] The Directions advised the parties that either party was at liberty to request a hearing in relation to the jurisdictional objection. No request was received. Having considered the material and the issues in dispute, the matter was determined on the papers as the most efficient way of dealing with the matter.

[5] While not all materials and submissions filed in relation to this matter are referred to, all of such have been considered.

Background

[6] The Applicant commenced employment on 16 July 2012 as an Operator at the Hail Creek Mine.

[7] During the Applicant’s employment, the Respondent submitted, he has been the subject of disciplinary processes on multiple occasions. The Applicant disputed each of these instances. The Applicant also raised multiple other issues that he alleges in relation to his treatment by the Respondent during his employment. These matters are not immediately relevant to the jurisdictional matter under consideration.

[8] The events that lead to the Applicant’s dismissal, relevant to this application, involved an alleged near miss incident on 22 August 2013. The Applicant was driving a Haul Truck that was involved in the incident.

[9] The Applicant’s employment was terminated by way of letter dated 20 September 2013. The letter of termination stated:

“...your employment with Hail Creek Mine will be terminated effective 20 September 2013. You will receive one month payment of normal salary in lieu of notice and you will receive any accrued leave entitlements.”

[10] The application pursuant to s.394 of the Act was filed on 22 October 2013. By way of the Form F2 application, the Applicant stated that the date he was notified of his dismissal was 20 September 2013. The Applicant stated in his originating application that the “date dismissal took effect” was 20 October 2013.

[11] It is clear that the Applicant’s dismissal took effect on 20 September 2013. The Applicant received one month notice of termination, in lieu of working that period. The Applicant did not continue to work for the Respondent after 20 September 2013.

[12] Pursuant to s.394(2)(a) of the Act, the application must have been filed by Friday 11 October 2013. The application was filed on 22 October 2013, some 11 days out of time.

Relevant Provisions of the Legislation

[13] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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 similar position.”

[14] The relevant consideration in relation to the jurisdictional objection is s.394(3).

Summary of the Applicant’s Submissions and Evidence

[15] The Applicant submitted that during his employment with the Respondent he was placed under “considerable daily stress”. The Applicant stated that this treatment, and the alleged unfair dismissal, has caused him to suffer severe stress and trauma, requiring medical intervention.

[16] The Applicant, prior and during his employment with the Respondent, was normally resident in Perth, Western Australia. Hail Creek mine is situated outside of Mackay, Queensland.

[17] The Applicant stated that he displayed a high level of commitment during his tenure with the Respondent having only taken two week visits to see his family, for the nine months prior to his dismissal.

[18] In the week prior to dismissal, the Applicant’s wife, had made arrangement to move to Mackay. At the time of his dismissal this meant that the Applicant and his wife did not have a permanent address.

[19] The primary submission of the Applicant is that the application was delayed due to a combination of the Applicant’s personal circumstances, regarding his living arrangements, and his medical difficulties.

[20] The Applicant submitted that he was “not in a fit state” to take any action regarding unfair dismissal. The Applicant submitted that he did not have any family or friends who could assist him in lodging an application.

[21] Following his dismissal, the Applicant stated that he fell into depression and was unable to do anything at all The Applicant’s wife has also suffered “significant” health problems.

[22] During the time immediately after his dismissal, the Applicant was situated in a camp, without access to internet or assistance services.

[23] At some point the Applicant’s wife contacted their representative, Ms V Makepeace.

[24] In support of the application for an extension of time, the Applicant filed a letter from Dr Stephen Adam, a Doctor of the West Perth Medical Centre. Dr Adams stated:

“[the Applicant] is a patient of mine who I have been treating for depression since the loss of his job. He has not been functioning well and has recently been started on antidepressant medication. I understand that he has missed a deadline for application for unfair dismissal.

I would ask that his depression be taken into account. He has not been in a position to make decisions until recently. This would qualify as “extensional circumstances.””

[25] The Applicant also relied upon a letter from a third party who stated that he provided the Applicant with authority to park their van at the rear of his property after the van broke down prior to the Applicant’s wife’s move to Mackay. The letter of the third party, states that this occurred around 23 August 2013. The van was eventually towed from the address in “mid October”. It appears that the third party is also a resident of Perth and the van remained in Perth.

Summary of the Respondent’s Submissions and Evidence

[26] The Respondent submitted that the Applicant has objected to the Commission exercising its discretion to extend time. The Respondent submitted that exceptional circumstances do not exist to warrant the exercise of the discretion.

[27] The Respondent submitted that stress and trauma, in itself, is not sufficient to grant an extension of time. 1

[28] The Respondent conceded that the Applicant had provided a reason for the delay, the reason has not been substantiated by supporting evidence in relation to the entire delay.

[29] The Respondent submitted that the cost and inconvenience of defending an out-of-time application will cause it financial prejudice. The Respondent further submitted that the substantive matter has limited prospects of success.

Consideration

[30] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 2 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services3 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)4 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, 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.” 5

[31] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 6

[32] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. I will consider each of those criteria in turn.

s.394(3)(a) - reason for the delay

[33] The circumstances of the Applicant have been seriously considered. The reasons for the delay relied upon by the Applicant are two-fold: 1) the Applicant’s medical condition subsequent to his dismissal, and 2) the fact that the Applicant was in the process of moving to Mackay at the time of his dismissal.

[34] I am not satisfied that the second reason, the fact of the Applicant moving, amounts to an acceptable reason for the delay. The mere fact of moving premises, even interstate, cannot be said to be out of the ordinary course, or unusual, special or uncommon. It is a fact that is regularly encountered. While some latitude can be provided in relation to this fact, there are resources available to investigate such claims, including public libraries, telephone assistance lines and community legal centres.

[35] I am similarly not satisfied that the Applicant was completely incapacitated by his mental condition such as to explain the delay. While unfortunate, a state of depression is not out of the ordinary course, or unusual, special or uncommon, after a person has been dismissed from their employment. There is no evidence that the Applicant required a period of hospitalisation. It appears that during the period, arrangements were able to be made regarding the Applicant’s accommodation.

[36] The evidence of Dr Adams is absent any detail as to the alleged incapacity. I note that the date of Dr Adam’s letter is dated 16 December 2013 and stated that the Applicant has not been in a position to make decisions “until recently”. The Applicant’s application was lodged in October 2013 so it is clear that the Applicant was in a position to make decisions at least at that time. The limited medical evidence is not convincing. With respect to Dr Adams, his opinion as to what constitutes “exceptional circumstances” is not relevant. The statement is made without reference to the accepted tests (as set out in the case authorities) for the context in which that term is used in the Act.

s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[37] The Applicant accepts that he was notified of the dismissal on 20 September 2013. The Applicant also accepts that he did not work after this date.

s.394(3)(c) - any action taken by the person to dispute the dismissal

[38] The Applicant has not submitted that he took any steps to dispute his dismissal other than the filing of the application pursuant to s.394 of the Act.

s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[39] Prejudice which has deprived the employer of access to evidence necessary to defend the case, such as the evidence of a key witness. 7

[40] The delay is limited. I am not satisfied that any substantial prejudice would be suffered by the Respondent if the matter was to proceed.

s.394(3)(e) - the merits of the application

[41] The merits of this application are neutral in my determination. The parties are significantly in dispute regarding the facts and circumstances surrounding the Applicant’s disciplinary history and the specific circumstances relating to the dismissal.

[42] Insufficient material has been filed in relation to the jurisdictional objection to form a view, however preliminary, about the merits of the application. Accordingly, no weight has been attributed to this criterion, although it has been considered.

s.394(3)(f) - fairness as between the person and other persons in a similar position

[43] The Applicant has not made any specific submission in this regard.

[44] The Respondent submitted that a grant of an extension of time would “encourage” other Applicants to ignore the statutory time limits.

[45] This criterion is neutral in relation to this matter.

Conclusion

[46] Where the Applicant applies for an extension of time in a matter, the onus is on the Applicant to satisfy the Tribunal of their case. It is recognised that the termination has had an impact on the Applicant and his wife, given their living arrangements were in transition at the time of the dismissal.

[47] The Applicant has not demonstrated that there are exceptional circumstances to warrant the exercise the discretion to extend time. I refuse the application for an extension of time. The application has been filed outside of the time required by s.394(2)(a) of the Act. The application, filed pursuant to s.394 of the Act, must be dismissed.

[48] I Order accordingly.

COMMISSIONER

 1   The Respondent referred to Rose v BMD Constructions Pty Ltd [2011] FWA 673 (unreported, Roe C, 1 February 2011).

 2   Fair Work Act 2009 (Cth) s.394(3).

 3  Wheelan C, [2009] FWA 1638, [30] and [31].

 4   Lawler VP, [2010] FWA 1394.

 5   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 6   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 7   Construction, Forestry, Mining and Energy Union v John Holland Group Pty Ltd and Others [2012] FWA 7711; Ms Jessie Mitchell v HWE Mining Pty Ltd [2012] FWA 2721.

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