Travis Kiernan v Om Holdings Limited T/A Om (Manganese) Ltd

[2016] FWC 3840

[2016] FWC 3840

FAIR WORK COMMISSION

DECISION

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

Travis Kiernan
v
OM Holdings Limited T/A OM (Manganese) Ltd
(U2015/16905)

COMMISSIONER WILSON MELBOURNE, 15 JUNE 2016

Application for relief from unfair dismissal.

[1] This matter concerns an application made by Travis Kiernan alleging unfair dismissal against his former employer, OM (Manganese) Ltd (OMM). Mr Kiernan’s application was first received in the Fair Work Commission by email on 19 December 2015. Mr Kiernan’s application discloses that the date upon which his dismissal took effect was 11 November 2015, although he did not learn about that decision until some time later. The date of dismissal is corroborated by the Respondent in its Form F3 – Employer Response.

[2] An extension of time for the making of Mr Kiernan’s application was granted by me in an earlier decision. 1

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any of these initial matters required particular consideration. In relation to the elements within s.396, I have already dealt with the matter of the time limit for the making of his application. In relation to the other elements within the section, I find that at the time Mr Kiernan was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[4] For the reasons set out below, I am not satisfied that Mr Kiernan’s dismissal was unfair within the meaning of the Act and accordingly his application will be dismissed.

BACKGROUND

[5] The evidence in this matter, which proceeded by way of determinative conference, was received from Mr Kiernan, who was the only person to give evidence on his behalf, and, on behalf of the Respondent, Mr Richard Abraham, an Authorised Representative of the Administrator of OMM, which is now in Administration under the Corporations Act 2001 (Cth).

[6] Mr Kiernan was first employed by OMM on 15 August 2014 in a plant operator role at a mine site operated by the employer. The mine site is at Bootu Creek, about 900km from Darwin, near Tennant Creek. Mr Kiernan’s application for unfair dismissal remedy refers to him being an “All Round Heavy Machinery Operator”. Unfortunately, Mr Kiernan developed significant mental illness, with that first becoming apparent to his employer some time in early 2015. As a consequence, he was absent from the workplace from about April 2015. The Respondent’s Form F3 reports that Mr Kiernan was on leave without pay from that time until his dismissal.

[7] The Respondent’s position is that Mr Kiernan abandoned his employment; that he was deemed uncontactable following their attempts to correspond with him at the completion of his most recent medical certificate declaring Mr Kiernan unfit for work until 7 September 2015, and, as a result, he was subsequently dismissed.

[8] Mr Kiernan’s evidence about his illness is in general terms, relating that “[i]n early 2015 I was diagnosed with severe depression and anxiety and was declared unfit for work by my Doctor.” 2 His evidence includes several medical certificates, and email exchanges with OMM about his absence. The evidence of OMM is similarly general and also includes several email exchanges with Mr Kiernan about the subject of his illness and availability for work. Drawing upon all the available evidence, the following chronology is apparent;

• On 7 April 2015, Mr Kiernan obtained a medical certificate indicating he would be unfit for normal work between 7 April and 20 April 2015, both dates inclusive;



• He obtained a further medical certificate on 27 April 2015, which indicated he would be unfit for normal work between 20 April 2015 and 12 May 2015, both dates inclusive;



• On 18 May 2015 Mr Chambers from OMM enquired if Mr Kiernan would “be able to fly in tomorrow”. 3 Mr Kiernan’s reply attached a medical certificate which was obtained on 18 May 2015, which indicated he would be unfit for normal work between 13 May 2015 and 29 June 2015, both dates inclusive;



• On 29 June 2015, Mr Chambers wrote to Mr Kiernan reminding him that his medical certificate did not cover his current roster, and Mr Kiernan replied. The exchange included the following enquiry and response; 4

“Hi Travis

The medical certificate you had given us doesn't cover you for this current roster of yours.
You are rostered to be at work right now. If you could please get in touch with me urgently to discuss and issues with regards to your availability for work.
Look forward to hearing from you
Regards
Carl Chambers
Technical Services Superintendent
OM Manganese LTD I Bootu Creek Manganese Mine”

“Good afternoon Carl
Sorry mate just checked my emails Im on my way home from my specialist appointment I will send a updated doc cert as soon as I get home.
Still not fit for work mate I go back in 3 weeks
Cheers
Travis”

• He obtained another medical certificate on 29 June 2015, which indicated he would be unfit for normal work between 29 June 2015 and 18 July 2015, both dates inclusive;



• On 10 July 2015 Mr Chambers requested an updated certificate and reminded him of the need for such on 14 July, as well as communicating the Respondent’s intention to discuss his “availability for work”. Mr Kiernan responded by sending an updated medical certificate and indicated about a possible return to work that while he hoped to return as soon as possible, it was a call for his doctors to make; 5



• On 17 July, Mr Chambers thanked Mr Kiernan for his last medical certificate and requested him to “send through additional ones for the days you feel you won’t be working”. Mr Kiernan’s reply advised his next specialist appointment was on 28 July 2015;

“Hi Carl

My next specialist appointment is Tuesday the 28th of July, I spoke to my doctor and my psychiatrist to try and get a ruff idea of when I would be able to return to work. Both said my mental heath issue (Depression & Anxiety) has to be treated with strong medication until they both see significant results to start the process of lowering my dosage to a level deemed safe for me to operate heavy machinery.

Sorry I can't give you anymore information then that mate. If yourself or John have any questions please don't hesitate to flick me a email and I'll get in touch.
Kind Regards
Travis Kiernan” 6

• A further medical certificate was obtained on 10 August 2015, which indicated he would be unfit for normal work between 19 July 2015 and 7 September 2015, both dates inclusive;



• There were further exchanges between Mr Kiernan and Mr Chambers during September 2015;



• On 2 September, Mr Chambers initiated contact and reminded him his medical certificate would run out on 7 September;

“Hi Travis
Tried calling you bud. Hope things are improving on your side?

Your Med Cert runs out on the 7th, please let us know if you would be ok to fly back to site next Tuesday.

If you won’t be able to, could you please organise for another medical certificate.

Please give me a call with any queries
Kind regards
Carl Chambers” 7

• Mr Kiernan responded the same day, in positive terms;

“Hi Carl
Im booked into see my specialist on monday so I will be able to give you an updated certificate no worries. My Doctor and I have been discussing ways of easing me back into work without undoing all the hard work. Monday I think my Doctor would like to get in contact with yourself or John to discuss possable ways of this happening.
I'm still not 100% but I'm more then confident getting back out there and getting back into the swing of things is going to help me.
Any questions mate feel free to ask.
Cheers
Travis” 8

• On 27 September, Mr Chambers forwarded the following communication, which apparently was not responded to by Mr Kiernan;

“Travis
If you/your doctor could please get In touch with our OHS team here on site.
Please give Admin a call on 08 89620 200 and they will direct you to a member of the OHS department who will facilitate a return to work plan with you
Should you have any queries, feel free to contact Jon or myself
Kind regards
Carl” 9

• Mr Kiernan’s employment was terminated through a company letter dated 11 November 2015. In my earlier extension of time decision I accepted that, on the evidence then before me, Mr Kiernan likely had not been aware of the correspondence until 18 December 2015. 10 The correspondence informed Mr Kiernan of the following;

“Dear Travis

Notification of Termination – Absence from Work
We refer to your unexplained and unauthorised absence from work since Tuesday, 7 September 2015. The last medical certificate was issued on the 10^th of August 2015 covering the period 19 July to 7 September 2015. We unsuccessfully tried contacting you by phone and sent an email on the 2^nd of September 2015.

We have accepted your unexplained and unauthorised absence from work as your act to terminate your employment contract. Termination is effective as of 11 November 2015.

Any outstanding monies owing to you will be paid to your designated bank account.

Yours faithfully

Trevor Cook
COO” 11

• On 7 December 2015, a final medical certificate was obtained, advising that Mr Kiernan was unfit for normal work between 8 September 2015 and 7 December 2015. The same certificate indicated that Mr Kiernan “is now fit to return to work from 8/12/2015”;



• On 18 December 2015, Mr Kiernan wrote to a general email address, “Admin Bootu”, with the following enquiry, receiving the response set out immediately below; 12

“From: Travis kiernan
Sent: Friday, 18 December 2015 9:42 AM
To: Admin Bootu
Cc: Carl Chambers; Jon Pluckhahn
Subject: Return to work
Good Morning
I have been trying to make contact with Carl and John regarding my clear to return to work but my emails have gone without reply. Could you please pass a message onto both that I have been cleared to return to normal duties. Please find attached an up to date doc cert and return to work document any other documents you need just flick me an email and I'll get it sorted.
Kind Regards
Travis Kiernan”

“From: Admin Bootu
Sent: Friday, 18 December 2015 12:09 PM
To: Travis kiernan
Subject: RE: Return to work
Travis,
Your employment was terminated on the 11th of November 2015. As stated in the letter posted to your last known address on the 11th Of November 2015. Carl and myself tried emailing and phoning you numerous times without any response as you were rostered to return to work in early September 2015. Previous medical certificate only covered the period ending 7 September 2015. This is the first correspondence we have received from you since the 2nd of September 2015.
Regards
Andre”

• Mr Kiernan responded further, objecting to what he had been told. The response is not date tagged, however the evidence shows that it was likely sent the same day as the above response from Andre. 13 His response included criticism of how he had been treated and the efforts that he had made to let OMM know of his condition and whereabouts, with him saying the following (in the original text);

“Well that's great good to see use support your workers suffering mental illness. I Had a phone call with Carl about what was going on with my treatment and that I was going into a 8 week program his words to me was not to worrie about work and that use supported me and to make contact when I was all clear to return. I had one email from Carl upon my return which I read last week and replied to. John and Carl know that I have a major signal problem which I have emails saved of previouse discussions with both John and carl fully aware. Use have my next of King details use never tried them use sent 1 email. I request a phone call discussion with use after I have spoken to the work place ombudsman and fair works Australia I have provided doctors cert for every day off now. Furthermore where is all my things from my room?” 14

• The company’s response about the whereabouts of Mr Kiernan’s belongings included this;

“Hi Travis,

All your belongings are at the Pandion depot in Darwin. It has been there since 18 November 2015. They have also not been successful on contacting you.
Pandion Haulage PTY Ltd.
Address: …
Regards
Andre” 15

LEGISLATION

[9] The legislative provisions which are relevant to this matter are set out in the FW Act, at s.387 (Criteria for considering harshness, etc) which sets out the considerations to which regard must be had in determining whether a dismissal is unfair. The section is in the following terms;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[10] I turn to consideration of each of the statutory criteria, noting that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable under that section, the FWC must take into account each of the legislated criteria.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[11] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 16

[12] In considering this question, I take account of the following facts;

• Mr Kiernan was first employed by OMM on 15 August 2014. His employment required him to work at a fly-in/fly-out mining site and to operate heavy machinery.



• Having become ill, he was continuously absent from 7 April 2015, until the date of his dismissal.



• He provided OMM with medical certificates for the period 7 April 2015 to 7 September 2015, with those certificates being provided to the Respondent on dates relatively proximate to the period they covered.



• His last such medical certificate was provided on 10 August 2015 and expired on 7 September.



• He was reminded of the need to obtain a further certificate on 2 September 2015, and promised to provide one, as well as indicating his doctor would like to get in contact with the Respondent’s managers about him. Neither steps happened.



• On 27 September 2015, the Respondent sought advice from Mr Kiernan about his situation. Neither Mr Kiernan nor anyone acting on his behalf replied, noting that it is possible he did not see the communication.

[13] I also take account of the following submissions made by the respective parties.

[14] After noting that OMM were initially supportive of him, Mr Kiernan submits that “[o]n every occasion that I was asked for an up to date Doctors certificate I produced OM manganese management with this plus an email or a call on how I was going.” 17

[15] The Respondent puts forward that it suspended its mining operations and made all employees redundant on 4 December 2015. After noting that it terminated Mr Kiernan’s employment through the letter it sent to him dated 11 November 2015, which is the date I have accepted was the date of his dismissal, 18 it notes that Mr Kiernan’s application for unfair dismissal remedy refers to the date of termination being 4 December 2015. In this regard, it submits;

“Whilst contrary to other submissions, Mr Kiernan's Form F2 states that he was notified of his dismissal on Friday, 4 December 2015. This is the date that all employees of OMM were notified of their redundancy, due to OMM’s mining operations being suspended.

OMM contends that Mr Kiernan became aware of the suspension of mining operations from other former employees on or shortly after 4 December 2015.” 19

[16] OMM also submit that it believes Mr Kiernan worked elsewhere prior to dismissal;

“As stated in the Form F3, OMM was informed that after 7 September 2015, Mr Kiernan was performing occasional manual work for another employer or employers. This information was provided by Mr Damen, a former employee who was made redundant on 4 December 2015.

I understand Mr Damen was a personal friend of Mr Kiernan and was in regular contact with Mr Kiernan during his absence from work.” 20

[17] While making the submissions referred to, OMM has not brought forward evidence on these matters. It also submits that the letter of termination was sent to Mr Kiernan’s last known address, and that it had no knowledge of a change of address of Mr Kiernan.

[18] After considering all of the material before me, I am satisfied that, at the time it dismissed Mr Kiernan, OMM had a valid reason for his termination. That reason is expressed in the letter of termination as being his “unexplained and unauthorised absence from work since Tuesday, 7 September 2015”.

[19] I accept that the Respondent had been initially supportive of Mr Kiernan and his condition and that it had genuinely endeavoured to assist him. The evidence shows that it continued that support into September 2015, with its initial enquiry on 2 September, which was responded to positively by Mr Kiernan. The support continued through until the communication from Mr Chambers on 27 September 2015, which asks Mr Kiernan to make contact with him or others. It intimates no intention on the part of OMM to be harsh with him, at that time at least; instead it reveals a genuine inquiry about the facilitation of a return to work.

[20] Unfortunately the company’s 27 September 2015 communication was not responded to by Mr Kiernan or anyone acting on his behalf. Whether or not he saw the communication is not to the point; rather what must be taken into consideration is that there was, on the evidence before me, no communication between Mr Kiernan and OMM until early December 2015. Mr Kiernan’s emails to “Admin Bootu” on or around 18 December 2015 say that he had “been trying to make contact with Carl and John regarding my clear to return to work but my emails have gone without reply”. By that time, of early December 2015, there had been no contact by him with the Respondent for 3 months.

[21] When it made the decision to dismiss Mr Kiernan, OMM had had no contact with him for over two months. Within the context of OMM’s operational requirements and the context of Mr Kiernan’s relationship with OMM, that decision amounts to a valid reason for his termination.

(b) whether the person was notified of that reason

[22] While Mr Kiernan was notified of the reason for his dismissal, that notification did not come to his attention until December 2015. On the Respondent’s construction of events, such notification would be on or around 4 December 2015; and on the Applicant’s construction it was not until 18 December 2015, and then in a summarised form.

[23] On either construction, Mr Kiernan was notified of the reason for his dismissal after it had taken effect.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[24] The Commission’s consideration of whether an employee has been given an opportunity to respond to an employer’s reason for dismissal is consequential to a finding there is a valid reason for dismissal. 21  Since the notification of his dismissal and its reasons came after it had taken effect, the evidence does not lead to a finding that Mr Kiernan was given an opportunity to respond to OMM’s reasons for termination.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[25] Consideration of this criterion is not relevant to this matter, since there were no discussions relating to Mr Kiernan’s dismissal.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[26] Consideration of this criterion is not relevant to this matter, since the reasons for Mr Kiernan’s dismissal do not relate to any question of his unsatisfactory performance.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[27] There is no evidence that the size of OMM’s enterprise impacted on the procedures it followed to effect Mr Kiernan’s dismissal.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[28] There is no evidence that OMM’s access to, or lack of, human resource management specialists or expertise impacted on the procedures it followed to effect Mr Kiernan’s dismissal.

(h) any other matters that the FWC considers relevant

[29] I do not consider there are any other relevant matters to be taken account of in my decision.

[30] After giving consideration to all the statutory criteria within s.387 of the Act, I do not consider that there are any matters that would lead to a finding that, despite OMM having a valid reason for Mr Kiernan’s dismissal, his dismissal was nonetheless unfair.

[31] Accordingly, I do not find that Mr Kiernan was unfairly dismissed within the meaning of the Act. An order dismissing his application will be published separately to this decision.

COMMISSIONER

Appearances:

Mr T Kiernan on his own behalf.

Mr R Abraham (appointed administrator) for the Respondent.

Hearing details:

2016.

Darwin (by telephone):

9 June 2016.

 1   [2016] FWC 1482.

 2   Exhibit Kiernan 1, Witness Statement of Travis Kiernan, [2].

 3   Ibid Attachment 1.

 4   Ibid Attachment 5.

 5   Exhibit OMM 1, Respondent’s Outline of Submissions, Annexure B.

 6   Exhibit Kiernan 1, Attachments 2 and 6.

 7   Exhibit OMM 1 Annexure B.

 8   Ibid.

 9   Ibid.

 10   [2016] FWC 1482 [26].

 11   Exhibit OMM 1 Annexure A.

 12   Exhibit Kiernan 1 Attachment 7.

 13   Ibid Attachment 3.

 14   Ibid.

 15   Ibid Attachment 9.

 16   Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.

 17 Exhibit Kiernan 1 [3].

 18   [2016] FWC 1482[22].

 19   Exhibit OMM 1.

 20   Ibid.

 21   Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41].

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