Timothy Hughes-Partington v Kalgoorlie Consolidated Gold Mines Pty Ltd

[2015] FWC 5360

[2015] FWC 5360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Timothy Hughes-Partington
v
Kalgoorlie Consolidated Gold Mines Pty Ltd
(C2015/1858)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 6 AUGUST 2015

Application to deal with contraventions involving dismissal.

[1] Mr Hughes-Partington (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 25 February 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Kalgoorlie Consolidated Gold Mines Pty Ltd (KCGM - the Respondent) on 3 February 2015 in contravention of the general protections provisions in the Act. As the application had been lodged one day outside the statutory timeframe for lodgement, the Commission issued Directions on 10 March 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The Directions indicated that if either party wished to be heard in relation to the application they could advise the Commission and the matter would be listed for a hearing. Neither party requested to be heard so the application has been determined on the basis of the documentation filed in accordance with the Directions.

[3] For the reasons set out below I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application will be dismissed.

Background

[4] Mr Hughes-Partington commenced employment with the KCGM on 28 January 2015 as a Utilities Technician working in KCGM’s Mineral Processing Department. Upon presenting for work on 30 January 2015, Mr Hughes-Partington was requested to undergo an alcohol and other drug test in accordance with KCGM’s Fitness for Work Procedure. The initial on-site screening of Mr Hughes-Partington’s urine sample returned a positive result which led to Mr Hughes-Partington being stood down and his urine sample being sent off-site for further testing.

[5] Mr Hughes-Partington decided to attend his doctor’s surgery on the afternoon of 30 January 2015 where he provided a urine sample. The pathology report for that sample did not detect any indicators of drug use. Mr Hughes-Partington was provided with a fitness for work certificate by his doctor on the same day.

[6] KCGM received the results of the off-site test on 3 February 2015. The pathology report indicated that the Carboxy-THC detected was above the Australian Standard cut off threshold. The report noted that this was consistent with cannabis use.

[7] Later that day, Mr Hughes-Partington attended a meeting with KCGM’s Human Resource Advisor, Ms Chloe Smith, and Production Superintendent, Ms Tracey Beck. Mr Hughes-Partington was advised that he could bring a support person to that meeting but decided not to do so. During the course of the meeting Mr Hughes-Partington’s employment was terminated on the basis that he had tested positive to an illicit substance in breach of KCGM’s Fitness for Work Procedure.

[8] In his application, Mr Hughes-Partington contended that he had attempted to provide his doctor’s report and certificate in the termination meeting, though it was not accepted as KCGM could not be satisfied that the sample was controlled. He stated the alleged contravention related to his exercise of a workplace right by the provision of his own results and a doctors certificate, and that he was denied his right to commence work duties when he was otherwise fit for work.

[9] As previously noted, Mr Hughes-Partington’s general protections application was received by the Commission on 25 February 2015, one day outside the 21 day statutory timeframe for lodgement specified in s.366(1)(a) of the Act.

The Relevant Legislation

[10] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Whether to allow a further period for the application to be made

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] In his outline of submissions Mr Hughes-Partington cited a number of reasons for the delay in lodging his application. They included that he:

(i) had to find employment from 4 February 2015;
(ii) had investigated the Fair Work Unfair Dismissal Fact Sheet provided by KCGM as part of his starter pack and found that there was no scope to make an application under the unfair dismissal provisions of the Act as he had not been employed in his position for six months;
(iii) had not received a letter of termination or the results of the pathology tests prior to lodging the application with the Commission;
(iv) on 20 February 2015 having not received a letter of termination or the pathology test results he decided to investigate the Commission’s website and discovered that he could make a general protections application;
(v) attended to his application over the weekend of 21 and 22 February 2015 and contacted the Commission on 24 February 2015 to ensure he was using the correct form, noting the circumstances of his dismissal; and
(vi) had miscalculated the twenty first day after his dismissal as 25 February 2015.

[13] KCGM submitted that Mr Hughes-Partington by his own admission was aware that his employment had ceased on 3 February 2015. KCGM noted Mr Hughes-Partington had not accounted for the delay between attending to his application on 21 and 22 February 2015 and calling the Commission on 24 February 2015, noting that the Commission was open during normal business hours on 23 February 2015. The Respondent contended that none of the reasons proffered by Mr Hughes-Partington, including the miscalculation of dates, constitute exceptional circumstances.

[14] It is not disputed that Mr Hughes-Partington was aware of his dismissal on 3 February 2015. Based on Mr Hughes-Partington’s submissions, he did not explore what avenues may be available to him under the Act to challenge his dismissal until 20 February 2015 when he decided to investigate the Commission’s website. This was seventeen days after his dismissal. While Mr Hughes-Partington attended to his application over the weekend of 21-22 February 2015, he did not contact the Commission until 24 February 2015. Mr Hughes-Partington did not contend that he asked the Commission about when the 21 day period expired, nor did he provide any explanation as to why he did not contact the Commission on 23 February 2015.

[15] These reasons, whether considered individually or collectively, weigh heavily against a finding that there were exceptional circumstances in this case.

(b) Any action taken by the person to dispute the dismissal

[16] Mr Hughes-Partington stated that he had questioned his dismissal in the termination meeting and had tried to provide his medical certificate and drug test results during the meeting. However, it appears that Mr Hughes-Partington did not take any further steps to contact KCGM prior to lodging the application. Mr Hughes-Partington contended that Ms Smith had stated to him that if he had an issue with his dismissal that he could contact her within four weeks. However KCGM disputed this, submitting that Ms Smith had advised Mr Hughes-Partington that access to KCGM’s Employee Assistance Program provider had been extended for four weeks and that he could put any concerns regarding his dismissal in writing to KCGM’s General Manager.

[17] KCGM submitted that other than Mr Hughes-Partington providing the results of his private drug test, it had no indication that Mr Hughes-Partington intended to take any action to dispute his dismissal. KCGM further submitted that at no stage did Mr Hughes-Partington contact KCGM regarding his termination letter or payslip.

[18] Based on the above, it appears that Mr Hughes-Partington took limited action to dispute his dismissal. This does not support a finding that there were exceptional circumstances.

(d) Prejudice to the employer (including prejudice caused by the delay)

[19] Mr Hughes-Partington submitted that there was no prejudice to KCGM as a result of his application being lodged out of time.

[20] KCGM conceded that it would not suffer any prejudice as a result of the delay, but highlighted that the mere absence of prejudice to a respondent is an insufficient basis upon which to grant an extension of time.

[21] I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[22] As outlined above, in his application Mr Hughes-Partington stated the alleged contravention related to his exercise of a workplace right by provision of his own drug and alcohol test results and medical certificate, and that he was denied his right to commence work duties when he was otherwise fit for work.

[23] KCGM submitted that it executed its Fitness for Work Procedure in a manner no different to the way it executes the Procedure with anyone else, and that Mr Hughes-Partington failed to identify what “workplace right” he had been denied or had exercised to his detriment.

[24] The material before the Commission focuses heavily on the whether the sample taken by KCGM returned a positive result in accordance with the relevant Australian Standards. Further, Mr Hughes-Partington has not clearly identified in his application or the documentation subsequently lodged with the Commission the nature of the workplace right, as defined in s.341 of the Act, that he exercised or proposed to exercise.

[25] Against that background, the merits of the application appear less than compelling.

(f) Fairness as between the person and other persons in a like position

[26] Mr Hughes-Partington stated that he was not allowed to produce the fit for work certificate from his doctor or the results from his private drug and alcohol test conducted by an accredited provider. He cited the case of The Maritine Union of Australia v DP World Brisbane Pty Ltd & Ors (DP World) 1 and indicated that the Commission had outlined the importance of balancing the need to ensure safety in the workplace with workers’ rights to be protected from unnecessary intrusion into their private lives. It is noted that DP World concerns a dispute arising under an enterprise agreement rather than a general protections dispute involving dismissal and so does not directly relate to this factor.

[27] KCGM submitted that it had applied the Fitness for Work Procedure for years and that treating Mr Hughes-Partington any differently from anyone else would be unfair to KCGM and other employees. KCGM also pointed out that two other employees had recently been dismissed for breaching KCGM’s Fitness for Work Procedure. Again, this does not directly relate to this factor.

[28] In the absence of submissions going directly to this factor, I consider it to be a neutral consideration.

Conclusion

[29] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 2(Nulty) in the following way:

“[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.”

[30] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[31] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1   [2014] FWC 1523

 2   [2011] FWAFB 975

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