Bradford Corunna v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore

[2016] FWC 5239

[2016] FWC 5239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradford Corunna
v
BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore
(U2016/1879)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 AUGUST 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Bradford Corunna alleged that the termination of his employment by BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore was unfair.

[2] There was no dispute that the date of termination was 4 March 2016 or that Mr Corunna was notified of his dismissal that day. Mr Corunna completed his Form F2-Unfair Dismissal Application form 1 and filed it with the Fair Work Commission (Commission) on 22 April 2016.

[3] Mr Corunna’s application was therefore not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act)

[4] The 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.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 2where the Full Bench said:

“[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." [Endnotes not reproduced]

[6] At the hearing, Mr Corunna gave evidence and addressed the material he had filed. His mother, Mrs Christine Corunna, also gave evidence on his behalf. Mr Adam Casley gave evidence for BHP Iron Ore and Ms Rachel Dawson made submissions.

Section 394(3)(a) the reason for the delay;

[7] There must be an acceptable reason for the delay in making the unfair dismissal application. 3 Mr Corunna must provide a credible reason for the whole of the period that the application was delayed.4

[8] 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. However, the circumstances from the time of the dismissal must be 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. 5 

[9] The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 6:

"For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."

[10] Mr Corunna’s application was filed 28 days late. He said his delay was not intentional. In his Form F2 – Unfair Dismissal Application form, Mr Corunna said his dismissal occurred at the same time as the passing of his Grandmother and this, along with a stressful custody battle regarding his children and his financial hardship contributed to the delay of the completing and filing of the Application.

[11] Mr Corunna said he had a very close relationship with his Grandmother and this was confirmed by Mrs Corunna. He said he and his Grandmother lived on the same street, she was like a mother and best friend to him and that she provided him with guidance. Mr Corunna said his Grandmother passed away the day after he was dismissed and following this, he withdrew from everybody and did not want to see or talk to anyone. He said he was barely able to function. 7

[12] As to the custody dispute involving his children, Mr Corunna said he had been through a lengthy Family Court proceeding with his ex-wife. He said his access to his children had been limited to one hour over a four month period and this experience had been extremely stressful and troubling. 8 Mr Corunna also cited stress, financial hardship and having to sell his house as reasons for the delay but produced no evidence in support of these claims.

[13] It is well established that ignorance of the timeframe for making an unfair dismissal application is not an exceptional circumstance. 9 Mr Corunna was aware there was a deadline applicable for making unfair dismissal applications, even if his mistaken belief was that he had 28 days from the date of his termination ‘to submit paperwork or whatever it was,’ which he said he had struggled to compile.10 His evidence suggested he held this belief regarding a 28 day limit at the time of the meeting on 4 March 2016.11 Mr Casley also gave evidence to this effect12 but Mrs Corunna said Mr Corunna only found out there was 28 days from termination after the meeting.13

[14] BHP Iron Ore submitted that Mr Corunna had produced no evidence that either the emotional distress which he suffered as a result of his Grandmother's passing or the involvement in his Family Court process were an impediment to lodging his unfair dismissal application throughout the time period in which he had to file his application or the 28 day period during which it was late and therefore he did not demonstrate that there are exceptional circumstances. BHP Iron Ore also submitted there was evidence of Mr Corunna having been capable of contacting Mr Casley on multiple occasions to question the amount of his pay and deductions that had been made to it, the bank account used and the impact of his termination on his shares.

[15] BHP Iron Ore relied on a number of Commission authorities in support of its submission that Mr Corunna’s reasons for the delay do not support an argument that there are exceptional circumstances:

• Caring responsibilities and having to travel interstate to attend a stepmother’s funeral did not explain the entire period of a delay in an application filed 21 days late (McKenzie v Kartaway (Qld) Pty Ltd[2013] FWC 544);



• Distress from being bullied at work, supporting a partner through a high-risk pregnancy and cervical cancer and death of a grandmother did not constitute exceptional circumstances justifying an extension of time for an applicant who lodged his unfair dismissal application 24 days late (Ebbott v FMSA[2010] FWA 2177);



• For health problems to constitute an acceptable reason for a delay in filing an unfair dismissal application, there must be evidence that the debilitating nature of the health problems acted as an impediment to lodging the claim (Wemyss v Mission Australia Employment Services[2010] FWA 1798); and



• although the time participating in a trial might prevent an applicant from making an unfair dismissal application, involvement in Family Court proceedings does not of itself constitute exceptional circumstances and this is particularly if there were no procedural steps occurring during the period in which to make an unfair dismissal application (Reeve v Ramsay Health Care Limited[2011] FWA 5349 and Cruz v Kwik TSP & Crane Hire Pty Ltd[2014] FWC 9082).

[16] Mr Corunna was aware there was a deadline that applied to the filing of an unfair dismissal application and he was able to attend to other tasks and enquiries during the period of his delay. While I am satisfied Mr Corunna shared a special bond with his Grandmother and her passing affected him deeply, I am not satisfied this constitutes exceptional circumstances or provides a reasonable explanation for the whole of his delay.

[17] Likewise, I am not satisfied the evidence establishes his custody dispute or financial hardship and house sale prevented him from completing and filing his application within time or explains his failure to do so before 22 April 2016.

[18] Mr Corunna’s submissions that his grief, custody battle and stress limited his capacity to pursue the application were made without medical evidence confirming the degree of incapacity or its duration. I am not satisfied there is a medical or other basis which properly explains why Mr Corunna could not lodge his application within time or the delay until 22 April 2016.

[19] For the reasons outlined above, I am not satisfied that Mr Corunna has provided a reasonable explanation for the delay in lodging his application. This weighs against a finding that there are exceptional circumstances.

Section 394(3)(b) whether the person first became aware of the dismissal after it had taken effect;

[20] Mr Corunna was notified of his dismissal in a meeting on 4 March 2016 and was aware of its immediate effect. 14 As he was aware of the dismissal on the day it took effect, Mr Corunna had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

Section 394(3)(c) any action taken by the person to dispute the dismissal;

[21] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 15

[22] Mr Corunna gave evidence of the issues he raised with BHP Iron Ore during the meeting on 4 March 2016. 16 He questioned whether BHP Iron Ore had taken his whole skill set into account and suggested that he could return to work with a safety team pending being able to resume duties as a Rail Maintenance Technician. He also questioned whether he would have been treated differently had he not been Aboriginal and the lack of a case manager assigned to support him while he had been experiencing his anxiety, depression and marriage breakdown.

[23] Mr Corunna said that he told Mr Adam Casley and Mr Luke Bolzan during the meeting that if they were intending to terminate his employment, he was not quitting. 17 Mr Corunna also disputed that he wanted to be terminated, as was suggested by Mr Casley in his statement18 but not maintained when subsequently cross-examined.19 Mr Corunna said Mr Casley made it very clear in the meeting that BHP Iron Ore intended to terminate his employment.

[24] Mr Corunna had some subsequent discussions and email correspondence with Mr Casley following his termination that concerned matters such as his final payment and share entitlements but this communication does not appear to have involved him challenging the decision to terminate his employment.

[25] Mr Corunna said he also sought information about obtaining legal advice. 20

[26] There is no doubt Mr Corunna did not agree with the decision of BHP Iron Ore to terminate his employment and I am satisfied he expressed this during the meeting on 4 March 2016. However, there was no other evidence of him having contested the dismissal after this, other than by lodging an unfair dismissal application, and this weighs against a finding that there are exceptional circumstances.

Section 394(3)(d) prejudice to the employer (including prejudice caused by the delay);

[27] Prejudice to the employer will weigh against granting an extension of time. 21 Mr Corunna submitted that the lateness of his application had not caused a disadvantage or any unfairness to BHP Iron Ore22 and BHP Iron Ore did not submit that there would be any prejudice to it if an extension of time were granted. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.23

[28] I consider this criterion to be neutral.

Section 394(3)(e) the merits of the application;

[29] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group 24, it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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."

[30] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case" 25 for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.

[31] Mr Corunna submitted that his dismissal was unfair because BHP Iron Ore broke each of its Charter Values: Sustainability, Integrity, Respect, Performance, Simplicity and Accountability. He submitted that his health and safety had not been supported and nor was his return to work. He submitted that BHP Iron Ore only focussed on what was beneficial for it. 26

[32] In his Form F2 – Unfair Dismissal Application form, Mr Corunna outlined:

Since February 2015 BHP Billiton had a very unreliable support plan in place for me…

Over the 12 months, BHP Billiton were irresponsible in the management of my mental health battle as I was in a major depressive state and I was left to organise and manage any treatment appointments bearing all costs besides subsidies from Medicare Mental Health Plan which I found extremely stressful and contributing to my anxiety issues at the time. 

Communication was extremely inconsistent and knee-jerk throughout most of the mentioned period.

BHP Billiton showed to be manipulative in regards to my privacy and confidentiality after my ex-wife contacted them with false allegations in September 2015 in which I was reassured they were not taken into consideration but given the decrease in support I believed I was lied to in regards to this. 

BHP Billiton ceased my pay without notice, my final pay was received on 23^rd of September 2015 I was then on leave without pay from then until date of termination of employment.

In relation to a return to work, BHP Billiton stated they had explored all areas in which my skillset would be utilized I deem that to be untrue as I was a safety rep and had training at TSA for completing the “Safety and Health Representative Course”  I believe a temporary position amongst a safety team would have been a minimal risk area to make a return to work successfully happen.

The days used were my accrued annual leave & sick leave and also an amount of discretionary leave which along the time off work was very vague in relation to how many days were allocated.

From February 2015 BHP made no attempt to see me in person, It was only on the day of employment termination did they push to see me in person. 27

[33] BHP Iron Ore submitted it had valid reasons for the dismissal because at the time of his dismissal Mr Corunna had been unable to work for 13 months and there was clear medical evidence that he was unlikely to be able to do so at least for another three to six months. BHP Iron Ore maintained that Mr Corunna was unable to fulfil the inherent requirements of his role.

[34] BHP Iron Ore also submitted:

• it was unable to accommodate Mr Corunna’s illness because there were not any non-safety critical roles available at the time of his termination, it was unlikely there would be in the foreseeable future and for Mr Corunna to work in rail, a highly safety critical industry, it was vital to ensure he was fit to perform those duties; 



• it had acted generously by providing Mr Corunna with paid leave for a significant period of time well above what was required by the Act or under his employment entitlements;



• the accusations that Mr Corunna made in his application in relation to BHP Iron Ore inappropriately breaching Mr Corunna’s confidentiality were in contest; and



• it acted appropriately at all times, the termination of Mr Corunna’s employment was undertaken in a fair and lawful manner and cannot be said to have been harsh or unjust.

[35] I am not able to make a final assessment of the merits as clearly there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

Section 394(3)(f) fairness as between the person and other persons in a similar position.

[36] In Wilson v Woolworths, 28 it was said of this criterion:

“It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically.” 29

[37] More recently the question of fairness as between the Applicant and other persons in a similar position has been considered in Morphett v Pearcedale Egg Farm ,30 as follows:

“cases 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.”

[38] Mr Corunna submitted that the difference between him and others in a similar position was the fact that he is Aboriginal. 31 He also submitted that there were other people in his team at BHP Iron Ore who had had time off work and would get away with things but had received support and made a return to work.32

[39] Mr Corunna’s submission focussed on the decision of BHP Iron Ore to terminate his employment in contrast to its treatment of other employees who had some circumstances similar to him, but this is not what this criterion is concerned with. In the absence of submissions that there were other persons in a similar position to Mr Corunna, in terms of matters currently before the Commission or matters which have been previously decided by the Commission, I consider this criterion to be neutral.

Conclusion

[40] Having taken into account the matters referred to in paragraphs [7]-[39] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Corunna’s application to be made. Mr Corunna’s circumstances, while undoubtedly distressing and significant for him, 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 and a lack of prejudice alone is insufficient to find exceptional circumstances.

[41] Mr Corunna’s application for an extension of time is refused and therefore his unfair dismissal application is dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

B Corunna on his own behalf.

Ms R Dawson for the Respondent.

Hearing details:

2016.

Melbourne and Perth (video link):

June 8.

 1   Exhibit A2.

 2 (2011) 203 IR 1.

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 4   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.

 5   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 6   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].

 7   Transcript PN 32.

 8   Transcript PN 33.

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].

 10   Transcript PN 79-80.

 11   Transcript PN 106.

 12   Exhibit R1 at [12] and Transcript PN 280.

 13   Transcript PN 199.

 14   Transcript PN40-42.

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 16   Exhibit A1 at Question 5.

 17   Transcript PN 89.

 18 Exhibit R1 at [10].

 19   Transcript PN 271.

 20   Transcript PN 107-108.

 21   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 22   Exhibit A1 at Question 6.

 23   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 24   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 25   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 26   Exhibit A1 at Question 7.

 27   Exhibit A2 at Question 3.2.

 28   Wilson v Woolworths[2010] FWA 2480.

 29 Ibid at [29].

 30   Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29].

 31   Exhibit A1 at Question 8.

 32   Transcript PN 76.

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