Kiernan v OM Holdings Limited [2016] FWC 1482 (10 March 2016) [2016] FWC 1482 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, 10 MARCH 2016 Application for relief from unfair dismissal - whether extension of time should be granted. [1] This matter concerns an application made by Travis Kiernan alleging unfair dismissal against his former employer, OM (Manganese) Ltd. Mr Kiernan’s application to the Fair Work Commission 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] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 17 days out of time. [3] In this decision, and in a hearing conducted on 25 February 2016, I have considered whether an extension of time should be granted to Mr Kiernan for the making of his application, and for the reasons set out below, I am satisfied that a further period should be allowed to him for the making of his application. [4] In considering an application for an extension of time for the making of an unfair dismissal application, the Act requires that I must be satisfied that there are exceptional circumstances to extend the time limit for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion. 2 [5] Of note is that the Respondent, OM (Manganese), does not object to the application continuing, with the Respondent being prepared to concede that, owing to his significant illness, Mr Kiernan may well not have become aware of his dismissal until some time after it had taken place. [6] The evidence before me includes the limited documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Kiernan, the Applicant, and Richard Abraham, an Authorised Representative of the Administrator of OM (Manganese) Ltd. [7] The material before me discloses that Mr Kiernan was first employed by OM (Manganese) on 15 August 2014 in a plant operator role at a mine site operated by the employer. Mr Kiernan’s application for unfair dismissal remedy refers to him being an “All Round Heavy Machinery Operator”. [8] Unfortunately, Mr Kiernan developed significant mental illness, with that first becoming apparent to his employer some time in early 2015. [9] Material filed by Mr Kiernan in support of his application indicates he is suffering from depression and anxiety. He has apparently been absent from the workplace since April 2015. The Respondent’s Form F3 reports that Mr Kiernan was on leave without pay from that time until his dismissal. [10] 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, the Applicant was subsequently dismissed. [11] The material and evidence before me in relation to this matter is basic, consisting only of the application form and employer response, together with some short documents filed on Mr Kiernan’s behalf, and the evidence of Mr Kiernan and Mr Abraham. I have had regard to all of that material. [12] The material on behalf of OM (Manganese) suggests that a letter of termination was posted to Mr Kiernan’s last known address on 11 November 2015. [13] For the purposes of s.396 of the Act, Mr Kiernan is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances. EXTENSION OF TIME [14] The FW Act requires that, in deciding whether to grant an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account six criteria set out in s.394. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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”. 3 [15] In considering whether an extension of time should be granted to Mr Kiernan, I am required to consider all of the criteria in s.394, which I now do. Consideration of the factors set out in section 394(3) of the Act 1. The reason for the delay [16] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 4 An applicant needs to provide a credible reason for the whole of the period that the application was delayed. 5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. 6 [17] In relation to Mr Kiernan, the evidence indicates that he suffered significant mental illness during 2015, from about February or March, and that he was absent from work for the whole period from April 2015. The extent of his illness meant that he required hospitalisation, as well as being unfit for work, both for reason of his ability to attend work, as well as his ability to safely perform his duties as a plant operator. Mr Kiernan’s evidence is that he provided the Respondent with medical certificates for the entire period, and that the manager with whom he communicated, Mr Chambers, was very understanding and supportive of him. The severity of his medical condition was such that he returned to live with his parents, who also had authority to open his mail during the periods he was unable to attend to his affairs. [18] Mr Kiernan’s evidence is that in early December 2015 he was cleared by his doctors to return to work. He provided that information to the Respondent and endeavoured to negotiate a return to work. When he did not hear from the people with whom he had been endeavouring to contact, he sent a further email to them on 18 December 2015, which is set out below; “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” [19] After sending that email, he received this response from the company, which advised that he had been dismissed, and that such had occurred some time earlier; “Travis Your employment was terminated on the 11 th of November 2015. As stated in the letter posted to your last known address on the 11 th 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 2 nd of September 2015. Regards, Andre” [20] Mr Kiernan’s clear evidence is that he had not previously known about this situation. He had received no communication from the Respondent on the subject, and none had been received by his parents at his residential address. Considering his dismissal to be unfair, he then commenced an unfair dismissal action, which was filed in the Fair Work Commission on Saturday, 19 December 2015. [21] Mr Abraham, for the Administrator of OM (Manganese) Ltd, does not dispute that Mr Kiernan first became aware of his dismissal on Friday, 18 December 2015, as put forward by the Applicant, but maintains, on the instructions available to him, that there had been an earlier communication to Mr Kiernan of his dismissal, and that the letter of termination had been sent to him on 11 November 2015. While making the concession indicated, Mr Abraham reserves the right, in a merits hearing, and for the purposes of rebutting the contentions of unfairness that may be made therein, to bring forward such material as may be available to prove the Respondent communicated Mr Kiernan’s termination to him during November. [22] In the circumstances, I accept that Mr Kiernan’s dismissal took effect on 11 November 2015. [23] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Mr Kiernan to lodge his application. In all, that period was a total of 17 days. He filed his unfair dismissal application within a day of learning that he had been dismissed. [24] I find that Mr Kiernan’s explanation that he was not aware of his dismissal until 18 December 2015 as his explanation for his delay in making an application to the Commission. [25] As a result of these circumstances, I consider there to be an acceptable reason for the delay in Mr Kiernan in making an unfair dismissal application. Accordingly, this criterion resolves in his favour in my consideration of whether an extension of time for filing should be granted. 2. Whether the person first became aware of the dismissal after it had taken effect [26] On the basis of the evidence before me, I am satisfied that Mr Kiernan first became aware of the termination of employment on 18 December 2015. This becomes a factor in Mr Kiernan’s favour in my consideration. 3. Any action taken by the person to dispute the dismissal [27] The only relevant action taken by Mr Kiernan to dispute his dismissal is a short email in response to the one in which he learned he had been dismissed, and to lodge an unfair dismissal application. [28] This is a neutral factor in my consideration. 4. Prejudice to the employer (including prejudice caused by the delay) [29] The delay in the filing of the application is 17 days. The respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time. [30] I note, however, that the Respondent’s circumstances of this matter are unusual inasmuch as the company has been placed into Administration and all but 3 employees, of the more than 130 employed at the time Mr Kiernan’s dismissal took effect, have also been dismissed, for reason of redundancy. The Respondent is unfortunately suffering a major downturn in its commodity pricing and so is now not operating. While it has employed a further 3 employees since the Administrator was appointed, those people and the remaining 3 are performing site maintenance duties, rather than mining operations. [31] While I take that factor into account in weighing the prejudice that may accrue to the employer, as potentially reducing its ability to have available to it people who may be able to give evidence about the circumstances of Mr Kiernan’s dismissal, it is to be noted that the Respondent does not argue this as a point of prejudice. [32] As a result, I am satisfied that there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. 5. The merits of the application [33] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal. [34] The Respondent relies upon the material disclosed in the email referred to above as being a valid reason for Mr Kiernan’s dismissal. When it did not hear from him for an extended period, it presumed he had abandoned his employment. [35] Mr Kiernan’s evidence is that, to the contrary, he kept the company fully informed, providing them with a continuous supply of medical certificates. When his health improved, he made contact with the company to seek a return to work, and it was only at that point that things went wrong. At first he could not make contact with anyone from the company and when he did in December, he was told he had been dismissed during November 2015. He then learned that others around him had also been dismissed, but for reasons of redundancy. He now maintains that the proposition he had actually been dismissed during November 2015 is not much more than a ruse put forward in order to deny him redundancy benefits. [36] The circumstances of the Respondent are such that, in the event an unfair dismissal was found, the prospect of reinstatement is unlikely. However the Respondent does not put forward at this time an inability to pay compensation if that was ordered. [37] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 7 [38] In considering Mr Kiernan’s application, I am satisfied that there is at least an arguable case on his behalf, while noting that the case is as yet untested and that the former employer opposes the construction of circumstances that Mr Kiernan would put forward. [39] Notwithstanding the submissions on behalf of the former employer, it is my view that consideration of this criterion resolves in Mr Kiernan’s favour. 6. Fairness as between the person and other persons in a similar position [40] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 8 [41] I consider there would be no unfairness to other persons in a similar position were an extension of time to be granted to Mr Kiernan. His are unusual circumstances; extended and debilitating illness prevented him from attending work for many months. While it is to the Respondent’s credit that they accommodated his absences until November 2015, the evidence is that Mr Kiernan did not know about his dismissal until 18 December 2015, the day before he filed his unfair dismissal application in the Fair Work Commission. [42] Taking into account all relevant factors, I am satisfied there are exceptional circumstances that would warrant allowing a further period for Mr Kiernan for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Mr Kiernan’s case but also to the criteria set out within s.394(3) of the Act. [43] An order is issued in conjunction with this decision that the time for Mr Kiernan to file his unfair dismissal application made pursuant to s.394 of the Act be extended until 19 December 2015. COMMISSIONER Appearances : Mr T Kiernan on his own behalf Mr R Abraham (appointed administrator) for the Respondent Hearing details: 2016. Darwin (by telephone): 25 February 1 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 , [21]. 2 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 , [9]. 3 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848 . 4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 , [299]-[300]. 5 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251 ; (2010) 197 IR 403 , 408‒409. 6 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 . 7 Haining v Deputy President Drake (1998) 87 FCR 248 , 250. 8 Wilson v Woolworths [2010] FWA 2480 , [24]‒[29]. Printed by authority of the Commonwealth Government Printer <Price code C, PR577779>