Barnett v FMG [2015] FWC 1508

s.394 - Unfair dismissal

[1] Mr Simon Barnett alleged that the termination of his employment by FMG trading as Fortescue on 21 November 2014 was unfair.

[2] His unfair dismissal application lodged on 28 January 2015 was not made within 21 days of the date of the dismissal.

[3] FMG Personnel Services Pty Ltd lodged an employer response to the application. It advised that FMG was not Mr Barnett's employer. It submitted that FMG Personnel Services Pty Ltd, a wholly owned subsidiary of FMG, was Mr Barnett's employer and that Mr Barnett should file an amended application to change the name of the respondent.

[4] FMG Personnel Services Pty Ltd objected to the application because it said Mr Barnett earned more than the high income threshold and the application was not lodged within 21 days of the dismissal.

[5] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6] Mr Barnett explained that he was not aware of the 21 day time period until he looked on the website by which time he was already late. Mr Barnett said that in December he was working at a remote mine site and did not return to Perth until 23 December 2014. On 26 December 2014 he flew to Melbourne for a holiday returning on 11 January 2015 and then flew out of Australia on 13 January 2015 on holidays and did not return until 25 January 2015.

[7] FMG Personnel Services Pty Ltd submitted that ignorance of the time limit is not an exceptional circumstance. It further submitted that working away from home or being on holidays is also not an exceptional circumstance.

[8] I agree with FMG Personnel Services Pty Ltd's submissions. While Mr Barnett's remote working location may have prevented him from lodging an application by 12 December 2014, his absence on holidays is not a sufficient excuse for not lodging his application. Had Mr Barnett accessed the Fair Work Commission website or sought advice at any time between 21 November 2014 and the beginning of December 2014 he would have found out about the 21 day time limit for lodging his application. Mr Barnett was entitled to take holidays but there was no explanation for the delay between 23 December 2014 and 13 January 2015. At that time, he was still in Australia.

[9] Mr Barnett's explanation for the delay in lodging his application does not weigh in favour granting an extension to time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[10] Mr Barnett was aware of the dismissal when it took effect. This weighs against granting an extension of time.

(c) any action taken by the person to dispute the dismissal;

[11] Mr Barnett said that he asked those involved in dismissing him why he was not warned or why his previous good record had been ignored. However Mr Barnett then did nothing until he lodged this application. I consider that this criterion is neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[12] FMG Personnel Services Pty Ltd said it was unable to determine whether relevant witnesses were still employed by them. It further submitted that absence of prejudice does not provide a positive finding that there are exceptional circumstances. I consider, however, that an absence of prejudice weighs in favour of granting an extension of time.

[13] FMG Personnel Services Pty Ltd submitted that Mr Barnett's salary was $166,064 per annum. It was submitted that Mr Barnett's employment was not covered by a modern award. However there were no evidence about Mr Barnett's role and it is therefore not possible for me to determine that Mr Barnett was not protected from unfair dismissal.

[14] Both parties have outlined their reasons why the dismissal was either fair or unfair. I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, I am unable to conclude that Mr Barnett's claim has no prospects of success.

[15] This weighs in favour of granting an extension of time.

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

[16] No submissions were made on this criterion.

[17] I am unable to find that there are exceptional circumstances warranting an extension of time. Mr Barnett's explanation for the delay, namely that he was working on a remote site and then went on holidays is not a reasonable explanation for the delay. That he did not know there was a 21 day time limit is not unusual. There is no evidence that Mr Barnett made any inquiries within the 21 day time limit about his right to bring an unfair dismissal claim. Had he done so, he would have been informed of the 21 day limit. The other criteria which I have found weigh in favour of granting an extension of time do not sufficiently outweigh the lack of a satisfactory reason for the delay. Mr Barnett's application for an unfair dismissal remedy is therefore dismissed.

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