• [16] Having regard to the foregoing findings, even accepting that the Applicant's delay in the filing of his Application was only one day (indeed, less than two hours), I do not accept that the Applicant's reasons for delay are credible or acceptable. In my view, this weighs against any finding as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute his dismissal[18]

• [17] The Applicant became aware of his dismissal the date that it took effect.

• [18] According to the Applicant, his dismissal arose from a year-long investigation by the Respondent into three allegations.[19] During this investigation, the Applicant says that he, on multiple occasions, attempted to (verbally and in writing) dispute the investigation process which he describes as amounting to "multiple accounts of adverse action."[20] The Applicant says that he attempted to have a meeting to resolve (what he terms) Issue #1 on 3 February 2021, but that this meeting was cancelled on the same day because the Applicant had requested to have a support person for the meeting and was denied this request.[21] It appears that the Applicant says that (what he calls) Issues #2 and #3 arose on or after 3 February 2021. As the Respondent correctly points out, these so-called attempts by the Applicant to dispute his dismissal arose prior to the Applicant's dismissal taking effect, and are not relevant for the purposes of considerations under s.366(2)(b) of the Act.[22]

• [19] The Applicant also highlights that he sought legal advice and assistance on 7 January 2022 to attempt to dispute his dismissal, made an ethics complaint in relation to his dismissal, and sought an internal review of his dismissal. In relation to these matters, the Respondent made the following submissions:

"25. The Applicant advances that he sought legal advice on 7 January 2022. This is a matter that weighs against a finding of exceptional circumstances, because it demonstrates he was on notice of the strict approach taken to the 21 day time limit.

26. Finally, the Applicant relies on an Ethics Point complaint regarding his dismissal, and also his instigation of an internal Issue Resolution Process to review his dismissal. It is accepted an Ethics Point report was lodged. However that report is not properly characterised as an action taken to dispute the dismissal. The role of the Ethics Point investigators is to make findings of breaches of BHP's Code of Conduct, and not to revoke or review disciplinary outcomes such as dismissal."[23]

• [20] I concur with the Respondent that the Applicant seeking legal advice within the 21-day time period, in the circumstances of this case, does not weigh in favour of a finding as to the existence of exceptional circumstances (rather, it weighs against it). It is also apparent that the ethics complaint was directed towards compliance with the Respondent's Code of Conduct, not the Applicant's dismissal. Finally, on the issue of the Applicant lodging an internal review of his dismissal, I note the email from Mr Warren Wellbeloved to the Applicant on 7 January 2022 (2.12pm), which reads:

"Unfortunately, I will not be in a position to respond to your 74 page appeal document by 2.30pm today as I have not yet completed my review.

However, should you wish to submit an application for an Unfair dismissal or General Protections claim with the Fair Work Commission by the required deadline this is a decision that you will need to make.

The appeal of your termination of employment and the Ethics Point cases will continue independently of any legal proceedings.

If my decision is to overturn your dismissal, then you will be able to cancel the Fair Work Commission proceedings.

I aim to get back to you next week with the findings of my review and my decision."[24]

• [21] Taking into account the matters raised by the Applicant in respect of the criterion under s.366(2)(b) of the Act, and the Respondent's submissions in respect of same, I treat this criterion as a neutral consideration.

• [22] The next criterion to be considered is any prejudice to the employer, including any prejudice caused by the delay. The Respondent does not contend that it would suffer any prejudice as a result of the Applicant being granted an extension of time.

• [23] The absence of prejudice to a respondent is not uncommon in these types of applications, but neither is such absence a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[26] In this matter, I treat this criterion as a neutral consideration.

• [24] The principles stated in Kyvelos v Champion Socks Pty Ltd[28] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:

"In considering whether to accept an application which has been lodged outside the time ... the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar ... It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application ... In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case ...".[29]

• [25] In Kornicki v Telstra-Network Technology Group,[30] a Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under s.170CE(8) of the (repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:

"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."[31]

• [26] In his Application, the Applicant relevantly lists 11 different types of adverse action that he says have been taken against him, but then says that "I simply cannot tell you with any certainty the reasons this adverse action was initiated against me." He goes on to state that in his "opinion", the adverse action taken against him occurred because the Respondent wanted to silence him, because of his mental health status, because of his method of direct communication, because he embarrassed a previous manager, and because he became disgruntled.[32]

• [27] I observe that many of the matters that the Applicant alleges to be "adverse action", are not adverse action within the meaning of Part 3-1 of the Act. Further, many of the reasons that the Applicant alleges that such adverse action has been taken "because of", are not prohibited reasons within the meaning of Part 3-1 of the Act.

• [28] The merits of the Applicant's case, by reference to his allegations, and the Respondent's counter assertions,[33] were not fully tested before me (i.e. it is not the role of the Commission to "embark [upon] a detailed consideration of the substantive case" for the purpose of determining whether to grant an extension of time to an applicant to lodge his or her application).[34]

• [29] All in all, even taking the Applicant's case at its highest, given the very limited evidence before me, and the disputed issues between the parties (of fact and law) which were not resolved at the extension of time hearing, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits of the Applicant's case neither for nor against any finding as to the existence of exceptional circumstances.

Fairness as between the Applicant and other persons in a similar position[35]

• [30] I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[36] The Applicant made no submissions as to this criteria.

• [31] The Respondent referred me to the cases of Pringle v BHP Iron Ore[37] (Pringle), and Parker v BHP Iron Ore Pty Ltd[38] (Parker) and submitted that the outcomes in each of these cases should also apply to the Applicant in this case as a matter of fairness. Whilst it is apparent that both of the applicant employees in Pringle and Parker filed their applications one day late, and were both denied their requests for an extension of time, I do not accept that either of these cases reflect the same, or similar, characteristics and/or circumstances, to those confronting the Applicant in this case. I therefore treat the criterion under s.366(2)(e) of the Act as a neutral consideration.

• [32] I have taken into account each of the criteria set out under s.366(2)(a)-(e) of the Act. In this regard, none of the criteria weigh in favour of the grant of an extension of time, and one criterion weighs against it.

• [33] I am not satisfied that there are exceptional circumstances in this case (whether I consider the criteria individually or collectively).[39] As I am not satisfied as to the existence of exceptional circumstances, there is no basis for me to grant an extension of time. I therefore decline to grant an extension of time. Accordingly, the Applicant's Application in this matter must be dismissed. An Order to this effect will be issued contemporaneously with this Decision.

Mr Stuart Fisher (the Applicant) appeared for himself.

Ms Rachel Dawson, Partner, Herbert Smith Freehills, appeared with permission for the Respondent.

[2] The Applicant did not oppose permission for the Respondent to be legally represented at the hearing. I granted permission for the Respondent to be legally represented in these proceedings pursuant to s.596(2)(a) of the Fair Work Act 2009, having regard to the matter having some complexity, and my view that the matter would be dealt with more efficiently if the Respondent was legally represented. See email from Boyce DP Chambers to parties dated 3 June 2022 regarding permission to be represented by a lawyer; Respondent's Submissions on representation dated 6 June 2022; Email from Applicant to Boyce DP Chambers dated 7 June 2022 not opposing permission being granted.

[3] Despite the Applicant cross-examining Mr Scully, none of his evidence was seriously put in issue (Transcript, PN114-PN167).

[4] [2011] FWAFB 975.

[6] [2016] FWCFB 5500.

[7] [2018] FWCFB 901.

[8] Ibid, at [17], [19], [38]-[39].

[9] Section 366(2)(a), Fair Work Act 2009.

[10] [2021] FWC 3903.

[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901, at [39].

[13] Applicant's submissions (Exhibit A1), pp.3-5.

[14] Respondent's Submissions, 3 June 2022, at [5]-[12].

[17] Transcript, PN177, PN186. Also adopting the position of Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group [2021] FWC 3903, at [19]-[25].

[18] Section 366(2)(b), Fair Work Act 2009.

[19] Form F8 Application, Attachments 1 and 2. Applicant's Materials (Exhibit A1), pp.6-14.

[22] Respondent's Submissions, 3 June 2022, at [24].

[25] Section 366(2)(c), Fair Work Act 2009.

[26] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, at [38]).

[27] Section 366(2)(d), Fair Work Act 2009.

[28] (1995) 67 IR 298.

[30] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).

[31] Ibid. See also Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [36].

[33] Respondent's Submissions, 3 June 2022, at [27]-[31].

[34] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd [2021] FWC 5962, at [33].

[35] Section 366(2)(e), Fair Work Act 2009.

[36] Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].

[37] [2022] FWC 554.

[38] [2022] FWC 545.

[39] Again noting the definition of "exceptional circumstances" set out in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13].

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