Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of statutory timeframe - application for extension of time dismissed.

• [1] Mr Anthony Bishop (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act/the FW Act) in relation to the termination of his employment by BHP Coal (the Respondent).

• [2] The Applicant began his employment in late February 2012. The Applicant contends that his employment was terminated on 22 February 2022. The Respondent argues that the Applicant's employment was terminated on 2 March 2022. His application was lodged with the Commission on 24 March 2022.

• [3] The Respondent sought to be represented at the hearing, which was not opposed by the Applicant. Still, I was required to consider whether to grant permission pursuant to s.596 of the Act.[1] The first pre-requisite; the presence of one of the criteria under s.596(2) does not immediately invoke the right to representation but rather "involves an evaluative judgment akin to the exercise of discretion."[2] Once that first step is satisfied, the second step "involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission."[3] Given the complexity of the matter and in the interests of dealing with it as effectively and efficiently as possible, I am satisfied that it is appropriate to grant the Respondent permission to be represented. Accordingly, Rachel Lee seconded from Herbert Smith Freehills and currently working with BHP Coal represented the Respondent at the Hearing.

• [4] Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

• [5] The Applicant lodged his application on 24 March 2022. He accepts that his application was made outside of the 21 days required under s.394(2) of the Act.

• [6] The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.

Consideration of whether a further period should be granted

• [7] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made:

"(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 like position."

• [8] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[4] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[5] the Full Bench of Fair Work Australia stated that:

"[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."

• [9] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).

• [10] For the Applicant's unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are "exceptional circumstances" taking into account each of the matters in s.394(3) of the Act.

• [11] The Applicant's submissions may be summarised as follows. The Applicant only appeared to address s.394(3)(a). The reasons for delay given were that:

(a) He misunderstood when the 21-day period for lodgement of an application commenced;

(b) He had spent most of the 21-day period organising his personal affairs to align with no longer having an income; and

(c) The loss of his job had a significant mental and financial impact on him and his family.

• [12] The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent's submissions were that:

• (a) The Applicant did not provide a 'credible'[6] or 'adequate'[7] explanation for the delay, when taking into account recent authorities where applicants had been dismissed for failure to receive a COVID-19 vaccination. This was particularly so in circumstances where the Applicant had demonstrated capacity and capability at responding to the Commission's directions in relation to his claim;[8]

(b) Whether the Applicant became aware of the dismissal at the time it took effect should be a neutral consideration. The Respondent asserted that the Applicant became aware of his dismissal the day that it took effect through a letter dated 2 March 2022. Alternatively, if the Applicant's assertion that he was dismissed on 22 February 2022 were accepted, his application would be nine days out of time;

(c) There was no evidence that the Applicant took other action to dispute his dismissal. This is a matter that weighs against a finding of exceptional circumstances;

(d) It would not be prejudiced as a consequence of any grant of an extension of time. Therefore this is a neutral consideration in this matter;

• (e) The application has low prospects of success when considering that the Commission has consistently upheld the dismissal of workers who have failed to comply with COVID-19 workplace vaccination requirements[9] and denied applications for extensions of time regarding this cohort, the Applicant earnt in excess of the high income threshold at the time of the application, and had not yet established whether his position was Award covered;[10] and

• (f) Fairness between the Applicant and other persons in a similar position suggests that an extension should not be permitted as others from the BHP Group of companies who have brought claims out of time have been refused an extension in similar circumstances.[11]

• [13] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[12] or a reasonable explanation.[13] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[14] the Full Bench noted at [39]:

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each."

• [14] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[15]

• [15] No doubt the termination of employment came as a shock for the Applicant who had been in this role with BHP Coal for over 10 years. As I understand, the Applicant was uncertain about filing his application, was attending to personal affairs, and was dealing with the stress of having lost his main source of income.

• [16] While I accept the Applicant's concerns and stresses, I must accept the Respondent's contentions that these are not exceptional circumstances.

• [17] I find that none of the reasons put forward by the Applicant qualify as "exceptional".

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

• [18] The Applicant became aware of his dismissal on 2 March 2022 by way of letter from the Respondent. The Applicant contested that his dismissal was in fact on 22 February 2022, evidenced by email correspondence dated 25 February 2022.

• [19] I note that the Applicant was arguing that his dismissal was predetermined. However, as this was a Jurisdictional Objections Hearing on whether an extension of time should be granted, I do not accept this argument. If I were to accept it, this would be detrimental to a consideration of an extension of time. This consideration therefore does not weigh in favour of an extension of time. For the purposes of this matter, I have taken the date of dismissal to be 2 March 2022.

Action taken to dispute the dismissal (s.394(3)(c))

• [20] The Applicant did not contest the dismissal generally with the Respondent.

• [21] This factor therefore does not weigh in favour of an extension of time.

• [22] The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[16] I consider this factor to be neutral.

• [23] In Kornicki v Telstra-Network Technology Group,[17] the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). In that case the Commission 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."

• [24] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission 'should not embark on a detailed consideration of the substantive case.'[18]

• [25] Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant's claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

• [26] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[19]

• [27] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

• [28] Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

[1] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268.

[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.

[3] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268, [48].

[4] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

[5] [2019] FWC 25.

[6] Battigelli v Respiratory West Pty Ltd [2022] FWC 25, per Beaumont DP at [16].

[7] Murray v Ambulance Victoria [2022] FWC 215, per Bissett C at [26]-[29].

[8] Battigelli v Respiratory West Pty Ltd [2022] FWC 25; O'Dea v Grampians Health [2022] FWC 362; Massey v Centrecare [2022] FWC 250; McIntosh v Barwon Health [2022] FWC 227; Murray v Ambulance Victoria [2022] FWC 215; Drake v Melba Support Services [2022] FWC 104.

[9] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015.

[10] O'Dea v Grampians Health [2022] FWC 362; Yates v Dahlsens Building Centres Pty Ltd [2022] FWC 329; Ainslie v Groot Eylandt Mining Company Proprietary Limited [2022] FWC 304; Fried v Travel Management Services Pty Ltd [2022] FWC 261; Massey v Centrecare [2022] FWC 250; McIntosh v Barwon Health [2022] FWC 227; Potapova v Alfred Health [2022] FWC 225; Murray v Ambulance Victoria [2022] FWC 215; Scanlan v Aged Care and Housing Group Inc [2022] FWC 174; Ferrato v Virtus Diagnostics [2021] FWC 6460; Petherick v Estia Investments Pty Ltd [2021] FWC 6274; Battigelli v Respiratory West Pty Ltd [2022] FWC 25.

[11] Parker v BHP Billiton Iron Ore Pty Ltd [2022] FWC 545; Pringle v BHP Iron Ore Pty Ltd [2022] FWC 554.

[12] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

[13] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

[14] [2018] FWCFB 901.

[15] See: Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[17] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[18] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

[19] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].

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