| [2020] FWC 1566 [Note: An appeal pursuant to s.604 (C2020/2472) was lodged against this decision - refer to Full Bench decision dated 14 May 2020 [[2020] FWCFB 2484] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Troy Cameron
v
Murrin Murrin Operations Pty Ltd
(U2019/14700)
DEPUTY PRESIDENT BEAUMONT |
PERTH, 31 MARCH 2020 |
Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – extension of time not granted.
[1] Mr Cameron applied for an unfair dismissal remedy on 25 December 2019, having been dismissed from Murrin Murrin Operations Pty Ltd (Murrin Murrin) on 12 February 2019. Murrin Murrin objected to the application on two grounds. The first, the application was filed outside the 21-day period prescribed by s.394(2) of the Fair Work Act 2009 (Cth) (the Act). The second, Mr Cameron had not satisfied the minimum employment period as required by s.382(a). This decision deals with those objections.
BACKGROUND
[2] Mr Cameron commenced employment with Murrin Murrin on 16 November 2018 as a ‘Casual Mobile Plant Operator’ working at the Murrin Murrin mine site. 1 Both a letter of offer of 15 November 20182 and an ‘Employment Contract (Casual)’3 set the terms and conditions of his employment.
[3] According to Murrin Murrin, Mr Cameron worked regular operational shifts as a Mobile Plant Operator with one of Murrin Murrin’s mining teams.
[4] Clause 9 of Mr Cameron’s Employment Contract provided that ‘[E]ither party may terminate this Agreement and your employment on giving one (1) day’s written notice’.
[5] Mr Cameron said that when he was offered employment with Murrin Murrin he was told it was for a permanent position, but the three month probationary period would be served as a casual. 4 Having served the three month period, he would then be offered a permanent contract.5 Murrin Murrin refutes that an offer or suggestion of permanent employment was communicated to Mr Cameron and notes that the letter of offer and Employment Contract were clear as to the terms of the engagement.
[6] On or around 29 January 2019, Mr Cameron asked his Supervisor, Mr Mathieson, if he would receive his permanent contract before leaving site. 6 Some three months had now passed. He was informed that a change in roster from a two weeks on / one week off to a two weeks on / two weeks off, had resulted in the probationary period being changed to six months.7 Mr Cameron said that he explained to Mr Mathieson that he had not signed up for a six month probation and it was wrong of Murrin Murrin to move the goal posts.8
[7] According to Mr Cameron’s evidence, his discontent with the situation was eventually conveyed directly to the Mine Superintendent, Mr Glynn Jones. 9 Mr Cameron’s evidence was that Mr Jones was rude, angry and spoke down to him, and that Mr Jones informed Mr Cameron that it had not been communicated to him that he would be on a three month probationary period and would thereafter be offered permanent employment.10 Whilst Mr Cameron suggested a meeting with the employee who had conveyed to him the information about the three month probationary period, Mr Cameron said Mr Jones in effect declined a further meeting.11
[8] The day after the meeting with Mr Jones, Mr Cameron was listed as a ‘spare’ on the roster and therefore he proceeded to take a bus to the North mine. 12 On arrival at the pre-shift meeting, he was informed by his Supervisor that Mr Jones wanted to speak to him.13 Mr Cameron said that at the meeting with Mr Jones, he was told that there was no work left for him and he would be kept on as a casual and would be called in if anything came up in the next six months.14 Mr Cameron gave evidence that he said to Mr Jones that he was being sacked for speaking out. In response, Mr Jones is purported to have said that there was no work due to crew movements and that Mr Cameron would never be permanent – as there was never a plan for him to be so.15
[9] Mr Cameron was provided with a letter of 12 February 2019, which set out that there had been a routine suspension of Mr Cameron’s operational shifts as a casually employed mobile plant operator with the Mining Team – Blue at Murrin Murrin on 11 February 2019. 16 The letter continued that Mr Cameron would remain active on the Murrin Murrin system for a period of six months from his last rostered shift.17 If Murrin Murrin was unable to offer further operational shifts in that period, Mr Cameron would be removed from the system.18 One can presume that the reference to ‘system’ was Murrin Murrin’s administration system.
[10] Mr Cameron lodged a complaint with Murrin Murrin through its ‘Raising Concerns Program’ on 14 February 2019. 19 However, dissatisfied that the investigator appointed to review his complaint was from Australia, and this gave rise, in Mr Cameron’s view to a conflict of interest, it appears Mr Cameron ceased the pursuit of his complaint.20
[11] Ms Du Toit, General Counsel for Murrin Murrin, gave evidence on behalf of the company. Attached to her witness statements were several emails from Mr Cameron to a Ms Horner, to which Ms Du Toit was copied.
[12] On 1 March 2019, Mr Cameron emailed Ms Horner raising issues about the choice of investigator and noting that he would be taking the matter further when settled in Victoria noting, ‘I understand and accept that this will be through the Western Australian Supreme Court’. 21 A subsequent email was sent to Ms Horner on 19 March 2019, in which Mr Cameron again reiterated:
I will not take part in your investigation, as your investigation lacks credibility and independence from Minara.
This should not prevent you from running your own investigation before, during, or after the civil lawsuit and WA and other commerce and employment investigations. 22
[13] By email dated 14 August 2019 to Ms Horner, Mr Cameron wrote about a previous email request he had sent for contact details of employees, asking:
Would you please provide the information as requested in the below email?
There will be others who will also need to be subpoenaed as we progress, so this list is likely to be far from complete.
As all this information and personnel are available to Glencore, and this has been dragging on for far too long, I’d appreciate a timely response. 23
[14] Having been directed by Ms Du Toit on 16 August 2019, to direct correspondence to her rather than several others in the business, Mr Cameron responded on 20 August 2019:
That is unacceptable.
As Glencore are also a Defendant in impending legal proceedings, I will continue to contact whomever I believe necessary or prudent.
This is necessary to enact proper compensation for myself… 24
[15] Mr Cameron sent a further email on 26 November 2019 to Ms Du Toit, which stated:
Hi all,
I’m still waiting on my employment separation papers and group certificate.
Do you think that one of you bullies could get that to me?
No I’m not giving up, no I won’t be ignored. I will be the thorn in your side until this is all resolved.
Your conduct continues to be illegal, which doesn’t surprise me but I will open peoples [sic] eyes to your conduct. 25
[16] Ms Du Toit gave evidence that Murrin Murrin did not as a matter of course issue employment separation certificates to employees whose employment is terminated. 26 To the best of Ms Du Toit’s understanding, Mr Cameron had not at an earlier stage requested an employment separation certificate.27 An employment separation certificate was provided to Mr Cameron on 4 December 2019.
WAS THE APPLICATION MADE WITHIN 21-DAYS
[17] 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 three preliminary matters are not presently relevant.
[18] It is not contested that Mr Cameron’s application was made out of time. However, for his application to now proceed, it is necessary for him 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. 28
[19] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.
[20] There is of course discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s.394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 29
[21] In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) 30 the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.31 Whilst Nulty considered the general protections provisions of the Act, its reasoning is applicable to s.394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
[22] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that 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. 32 Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.33
[23] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 34 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s.366(1), the observation remains pertinent:
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. 35
[24] At the commencement of the hearing, the parties were referred to s.394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’.
Reasons for the delay in filing the application
[25] Consideration turns to whether Mr Cameron has provided a credible reason for the whole of the period that his application was delayed. 36 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.37 It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period, and ultimately whether that reason constitutes exceptional circumstances.38
Delayed notice of termination
[26] Based on the content of Mr Cameron’s application and submissions made, the gravamen of his argument was that he held the belief he was unable to make an application for an unfair dismissal remedy until he had been provided with an employment separation certificate - as such certificate constituted the notice of termination. 39
[27] Mr Cameron further submitted that his Employment Contract provided at cl 9.1 ‘[E]ither party may terminate this Agreement and your employment on given one (1) day’s written notice’. It followed, said Mr Cameron, that no written notice was given to him until 5 December 2019, when he received the Employment Separation Certificate dated 3 December 2019. Referring to the content of his Form F2 Unfair dismissal application, which stated his dismissal took effect on 12 February 2019, Mr Cameron explained that this date had been inserted based on his incorrect belief that the date on the application had to match the Employment Separation Certificate.
[28] In support of his contention that the application could not be lodged without a written notice of termination or employment separation certificate, Mr Cameron directed the Commission’s attention to the letter of 12 February 2019 in which it was stated ‘[Y]ou will remain active on our system for a period of 6 months from your last rostered shift’. Mr Cameron submitted that if he had made the application at this time, Murrin Murrin would rightly have claimed that he had not been dismissed. It followed, according to Mr Cameron, that his employment spanned the period of 16 November 2018 through to 5 December 2019 – a period of more than 12 months.
[29] Murrin Murrin submitted that whether one took the position that the employment ended on 12 February 2019 when Mr Cameron was provided with the letter of that same date, or the date after the six months expired whereby Mr Cameron would be removed from the administrative systems, his application was nevertheless filed out of time. If the employment ended on 12 February 2019, as contended by Murrin Murrin, then the application was 10 months out of time, if it ended after the 6 month expiry period, then it was four months out of time.
[30] It was clear, said Murrin Murrin, that Mr Cameron’s employment terminated on 12 February 2019. In this respect it emphasised the following:
a) in the application, Mr Cameron acknowledged his dismissal took effect on 12 February 2019 and he had failed to initiate the application within 21 calendar days of his dismissal;
b) in his submissions, Mr Cameron asserted he was ‘sacked’ for insisting that the agreement he signed up for on the condition of a three month casual probationary period be honoured. The date on which this occurred was 12 February 2019;
c) Mr Cameron’s witness statement was unequivocal in asserting that he was ‘sacked’ on 12 February 2019. It was on the strength of that fact that Mr Camron alleged he notified the representatives of Murrin Murrin of his intention to proceed to court. 40
[31] As observed, what is clear from the evidence is that Mr Cameron appeared to have laboured under the mistaken impression that he could not lodge his application for an unfair dismissal remedy until such time as he received his Employment Separation Certificate.
[32] Murrin Murrin pressed that the date of termination was 12 February 2019, relying in part on those factors outlined in paragraph [30] of this decision, and that Mr Cameron was notified of his dismissal when he received the letter of 12 February 2019, which, said Murrin Murrin, notified Mr Cameron that his casual engagement had come to an end.
[33] While Mr Cameron’s written materials outline his belief that on 12 February 2019, he ‘…was going to be sacked for speaking out’, 41 and he ‘…knew he would be sacking me after his attitude the day before’42 – referring to Mr Jones, and ‘I was only being sacked for speaking out’;43 a belief that one has been dismissed is insufficient in and of itself, to ground a finding that this was in fact the date of termination. I note in this respect that Mr Cameron gave evidence that he had requested an employment separation certificate from Murrin Murrin, around the time of receiving the letter of 12 February 2019, but contended he did not receive one. However, with the exception of Mr Cameron’s assertion given at hearing in this respect, there was no evidence before me to support that such a request had been made and had not engendered a response.
[34] The letter of 12 February 2019, referred to a ‘routine suspension of operational shifts as a casually employed mobile plant operator’. 44 The word ‘suspension’ denotes neither dismissal nor termination. While the issue at hand currently centres on determining the termination date, guidance can be gleaned from the decision of the Full Bench in Shortland v The Smiths Snackfood Co Ltd (Shortland) notwithstanding that its focus was on the calculation of the minimum employment period
[35] The word ‘engagement’ at common law was understood to be each occasion that a casual employee worked. In Shortland, 45 the Full Bench observed that casual employees may be engaged from week to week, day to day, shift to shift, and so forth. Therefore, no causal employee has a continuous period of employment beyond any single engagement.46 However, the Full Bench further explained that the criteria in s.384(2)(a) made it clear that s.384 did not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.47
[36] The Full Bench continued that continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. 48
[37] In my view it was not clear from the contents of the letter of 12 February 2019 that Mr Cameron’s employment had been terminated. It is implicit in the content of the letter that, at the time Mr Cameron was provided with the letter, he remained employed – hence the reference to a ‘suspension’. In circumstances where Murrin Murrin was thereafter unable to offer further operational shifts in the period between February and August 2019, the result would then be the termination of Mr Cameron’s employment – as evinced by the reference to Mr Cameron’s removal from the system at this time.
[38] The letter of 12 February 2019 clarified a further point. Mr Cameron had, previous to the receipt of the letter of 12 February 2019, been employed on a regular and systematic basis (on a roster cycle) as was apparent from Murrin Murrin’s own evidence. On receipt of the letter of 12 February 2019 that arrangement appeared to have come to an end.
[39] It was Mr Cameron’s evidence that he was not provided with any further shifts after his last night shift on 11-12 February 2019. It can therefore be concluded that, come 12-13 August 2019, Mr Cameron had been dismissed and as such was no longer an employee of Murrin Murrin.
[40] In August 2019, the condition in the letter of 12 February 2019, had been satisfied – namely six months has expired in the absence of Mr Cameron receiving shifts. In this respect, I note the approach of the Full Bench in Shortland.
[41] However, Mr Cameron did not apply for an unfair dismissal remedy until some four months later, notwithstanding his communication to Murrin Murrin that he intended to initiate civil proceedings in the Supreme Court.
[42] What Mr Cameron’s evidence clearly demonstrates is that there is in effect no credible reason or cogent explanation as to why the lodgement of his application was delayed. When asked why he had not filed his application in August 2019, a time when his name would have been removed from the Murrin Murrin ‘system’, the extent of Mr Cameron’s response was in effect that ‘life got in the way’. Similarly, no attempt was made by Mr Cameron, in August 2019, to obtain an employment separation certificate.
[43] Having regard to the circumstances in this case, I am not satisfied that Mr Cameron has provided a reasonable explanation for the delay in lodging his application. This weighs against a finding that there are exceptional circumstances.
[44] I am satisfied that at all material times from the time Mr Cameron was dismissed until he made his application, he knew he had been dismissed. I consider this to be a neutral factor.
[45] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 49 I have considered all the evidence in this respect.
[46] First, the evidence showed that Mr Cameron had placed Murrin Murrin on notice that he intended to commence civil proceedings in the Supreme Court of Western Australia. At hearing, Mr Cameron reiterated that the proposed claim, referred to in his correspondence to Murrin Murrin, was in respect to a breach of contract claim concerning cl.9 of his Employment Contract, not concerning having been dismissed unfairly. Clause 9 of the Employment Contract set out, amongst other terms, that either party may terminate the Contract by giving one (1) day’s written notice.
[47] Second, while Mr Cameron placed Murrin Murrin on notice of his intent to initiate civil proceedings, he did not take such action. Mr Cameron made a request for the contact details of Murrin Murrin employees, but I am not satisfied in the circumstances that the expression of Mr Cameron’s intent, or a request for employee contact details, constitutes ‘action taken’ to dispute the dismissal.
[48] Further, while Mr Cameron initially pursued a complaint about his treatment internally with Murrin Murrin, 50 he later informed Mr Horner ‘I will not take part in your investigation, as your investigation lacks credibility and independence from Minara’.51
[49] Having considered the evidence and submissions of both parties, I do not consider that Mr Cameron took action to dispute his dismissal and consider this to be a neutral factor.
[50] I cannot identify any particular prejudice that Murrin Murrin would accrue if an extension of time were to be granted. I consider this to be a neutral factor in the present case.
[51] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s.394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
[52] In Kornicki v Telstra-Network Technology Group, 52 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:
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. 53
[53] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. 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 the applicant to lodge his application. 54
[54] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. It is therefore the case that I am unable to assess in detail the merits, given the disparate factual accounts. It follows that I consider this criterion to be neutral.
Fairness between the person and other persons in a similar position
[55] The Deputy President in Morphett v Pearcedale Egg Farm, 55 considered this criterion and 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. 56
[56] Neither party drew my attention to any relevant matter previously decided by the Commission. However, having considered authorities that had relevance regarding those circumstances before me, I am satisfied that the issue of fairness as between Mr Cameron and other persons in a similar position, is a neutral factor in determining whether to grant an extension of time.
[57] Having taken into account the matters referred to in paragraphs [25]-[56] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Cameron’s application to be made. Mr Cameron’s circumstances were not out of the ordinary course, unusual, special or uncommon, and he has not provided a reasonable explanation for the whole of the delay. None of the other criteria weigh in favour of a finding of exceptional circumstances.
[58] In light of this conclusion, it has proved unnecessary for me to consider the second jurisdictional objection that Mr Cameron had not satisfied the minimum employment period as required by s.382(a) of the Act. However, for the sake of fulsomeness, I have observed at paragraph [38] of this decision that, as of 12 February 2019, Mr Cameron, as an employee of casual status, was no longer engaged on a regular and systematic basis as contemplated in s.384(2) of the Act. Further, given the content of the letter of 12 February 2019 and the evidence that no further shifts were allocated to Mr Cameron, it is entirely open to conclude that Mr Cameron did not hold a reasonable expectation of ongoing employment. 57
[59] Mr Cameron’s application for an extension of time is refused and therefore his unfair dismissal application is dismissed. An order to this effect will be issued with this decision. 58
DEPUTY PRESIDENT
Appearances:
T Cameron, Applicant
R Wade of Ashurst for the Respondent
Hearing details:
2020.
Perth (by telephone):
March 27.
Printed by authority of the Commonwealth Government Printer
<PR717746>
1 Witness Statement of Troy Cameron (Cameron Statement) Annexure A1.
2 Ibid Annexure A1.
3 Witness Statement of Odelia Du Toit (Du Toit Statement) Annexure OD-3.
4 Cameron Statement [3].
5 Ibid [3].
6 Ibid [6].
7 Ibid [6].
8 Ibid [7].
9 Ibid [10] – [12].
10 Ibid [12].
11 Ibid [12].
12 Ibid [14].
13 Ibid [16].
14 Ibid [16].
15 Ibid [16].
16 Ibid, Annexure A2.
17 Ibid, Annexure A2.
18 Ibid, Annexure A2.
19 Ibid [22].
20 Du Toit Statement Annexure OD5.
21 Ibid, Annexure OD5.
22 Ibid, Annexure OD5.
23 Ibid, Annexure OD6.
24 Ibid, Annexure OD7
25 Ibid, Annexure OD7.
26 Ibid [15].
27 Ibid [15].
28 Fair Work Act 2009 (Cth) s.394(3).
29 Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989, [20].
31 Ibid [15].
32 Ibid [13].
33 Ibid.
35 Ibid [38].
36 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.
37 Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment [2016] FWC 5041, [10].
38 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349, [29] – [31].
39 Form F2 - Unfair dismissal application, [1.5].
40 Cameron Statement [14], [16], [18] and [21].
41 Ibid [14].
42 Ibid [16].
43 Ibid [16].
44 Du Toit Statement, Annexure OD4.
45 Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 [10].
46 Ibid.
47 Ibid [11].
48 Ibid [13].
49 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
50 Du Toit Statement, Annexure OD5.
51 Ibid, Annexure OD5.
52 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
53 Ibid.
54 Kyvelos v Champion Socks Pty Ltd, Print T2421, [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899.
56 Ibid [29].
57 Fair Work Act 2009 (Cth), s.384 (2); see paragraph [38] of this decision.