Fair Work Act 2009

s.394 - Unfair dismissal

Termination of employment - jurisdiction - extension of time.

[1] Mr John McGuire (the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Sandfire Resources NL (the Respondent).

[2] The application has been lodged more than 21 days after the alleged dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[3] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

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

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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:

(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

(f) fairness as between the person and other persons in a similar position."

[4] Consequently, I wrote to the Applicant explaining the requirements of section 394 of the Act and inviting the Applicant to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.

[5] The Applicant's legal representative has provided a response to the Fair Work Commission's direction including two statutory declarations from the Applicant and written submissions. The Respondent has similarly provided through its legal representative statutory declarations from three witnesses and written submissions.

[6] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

[7] The Applicant was stood down from his employment on full pay in November 2019 whilst allegations against him were investigated.[1]

[8] The Applicant says he had two interviews as part of the investigation; one with Ms Janine Collier (Ms Collier) the Human Resources Manager and another with a Mr Rob Klug.

[9] The Applicant's evidence is that he had a meeting with the Respondent's officials on Thursday, 30 January 2020 when he was told that his services were being terminated. He says he was told that he would no longer be working at the Respondent.[2]

[10] The statutory declarations of the Respondent's General Manager Operations Mr Greg Peden and Human Resources Manager Ms Collier confirm that they attended a meeting with the Applicant on 30 January 2020 during which he was advised his employment was terminated effective the same day and he would be paid five weeks' in lieu of notice.

[11] I find that at a meeting on 30 January 2020 with the Respondent's General Manager Operations and Human Resources Manager the Applicant was advised the Respondent had made the decision to terminate his employment effective that day and that he would be paid five weeks' wages in lieu of notice.

[12] Following the meeting the Applicant says he did ask for a written letter setting out the reasons and asked them to reconsider. He says his belief was the process was still happening while he awaited delivery of the letter.[3]

[13] He picked up a letter from the Respondent's office in February 2020 which detailed the reasons for his dismissal.

[14] The opening paragraph of the letter refers to a formal meeting held on 30 January 2020 and that the letter confirms the decision to terminate his employment. The letter states his final day of employment is the same day, 30 January 2020.

[15] That letter was erroneously dated 8 February 2020.

[16] Around 6 February 2020 the Applicant had attempted to arrange a meeting with the Respondent's Chief Executive Officer however instead a meeting was arranged with Mr Jason Grace (Mr Grace) the Respondent's Chief Operating Officer who was the most senior manager involved in the decision to terminate the Applicant's employment.

[17] The Applicant met with Mr Grace on 14 February 2020. Mr Grace told the Applicant that Ms Evans would sit in on the meeting. The Applicant asked to speak to Mr Grace alone. After Ms Evans left the Applicant asked if there was anything he could say that would change the Respondent's decision on his termination of employment. Mr Grace interrupted the Applicant and said that if he was going to raise any issues or make complaints then Ms Evans had to return to the room to ensure that correct records were made. The Applicant did not want Ms Evans to return to the room. The discussion continued and Mr Grace explained that the Respondent would not change its decision.[4]

[18] The Applicant says the manner of his dismissal at the meeting on 30 January 2020 followed by the receipt of the letter caused a lot of confusion in his mind as to the date of the dismissal. He says he was very distressed at this time as he had no income.

[19] On Thursday, 20 February 2020 the Applicant met with a lawyer and on Friday, 28 February 2020 this application was filed on his behalf.

[20] The Applicant says he did not know about the 21-day time period for bringing unfair dismissal proceedings.[5]

[21] It is submitted on behalf of the Applicant that the reasons for the delay were that,

1. The Applicant was seeking a review of the decision by senior management because what had happened was unusual to him and unlike anything he had ever experienced; and

2. He was confused as to when the termination had occurred.

[22] The Applicant's evidence was relevantly that he was unaware of the 21-day time limit to make the application. Separately he says he did not believe he could be terminated until he received this in writing.

[23] Whilst the Applicant may have been seeking some sort of review of the decision to terminate his employment and senior management did meet him there is no suggestion and no evidence the Respondent at any time encouraged him to believe the Respondent would reconsider its decision or that he had some right to an internal appeal of the termination.

[24] The Applicant's desire for the Respondent to review its' decision and his discussion with Mr Grace on 14 February 2020 is not an acceptable reason for the delay. In any event there is no reason why his approach to the Respondent's senior management prevented him from making his unfair remedy application within time.

[25] It certainly would not be uncommon for an employee who is terminated to be confused about the effective date of termination. The fact that the Applicant was confused about this is not an exceptional circumstance nor is it an acceptable reason for the delay.

[26] Separately it has been held many times in this jurisdiction that the fact an employee is unaware of the legal requirement to file an application of this particular type within 21 days is not an acceptable reason for delay in filing.

[27] It is an unfortunately common experience for an employee to be distressed having been terminated from their employment and no longer receiving any income. This is not however an exceptional circumstance nor is it an acceptable reason for the delay in making an application.

[28] Whilst the Applicant may have believed his employment could not be terminated until he was given a letter to that effect by the employer, holding this erroneous belief does not amount to an acceptable reason for the delay.

[29] Having considered the reasons for the Applicant not making this application within 21 days I am not satisfied that there are any acceptable reasons for the delay in this case.

Whether the Applicant first became aware of the dismissal after it had taken effect

[30] The Applicant was advised in the meeting on 30 January 2020 that he was dismissed with effect that day.

Any action taken by the person to dispute the dismissal

[31] The Applicant did arrange a meeting with senior management after his employment was terminated and during that meeting asked what he could say that would change the Respondent's decision.

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

[32] I do not accept that there is any prejudice to the Respondent if a further period to apply was allowed.

[33] There is significant disagreement between the parties as to the merits of this application. On the limited material before the Fair Work Commission at this stage it is not possible to form a view.

[34] As is often the case without the matter being fully argued it is difficult for the Fair Work Commission to determine whether the merits of the application do or do not support an extension of time. Consequently, I view the merits of the application as a neutral factor in this decision.

Fairness as between the person and other persons in a similar position

[35] There is no information regarding fairness between the Applicant and other persons in a similar position.

[36] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[37] In this instance there is no acceptable reason for the delay, which weighs against granting this application. In the Applicant's favour however he did approach senior management about his dismissal. The other factors are neutral.

[38] I have considered the evidence and submissions and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[39] Consequently, there is no basis on which to allow a further period for this application to be made. The application is not properly before the Fair Work Commission and must be dismissed.

[40] An order [PR720447] to that effect will be issued in conjunction with this decision.

[1] Applicant's statutory declaration, 8 May 2020, para 7 & J. Collier's statutory declaration, 28 April 2020, Attachment JC1.

[2] Applicant's statutory declaration, 17 April 2020, paras 13 and 16 & Applicant's statutory declaration, 8 May 2020, para 9.

[3] Applicant's statutory declaration, 17 April 2020, para 13.

[4] J. Grace's statutory declaration, 30 April 2020, Attachment JG2.

[5] Applicant's statutory declaration, 17 April 2020, para 9.

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