Dean Phillips v LMP Project Services
[2025] FWC 691
•10 MARCH 2025
| [2025] FWC 691 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dean Phillips
v
LMP Project Services
(U2024/14576)
| COMMISSIONER HUNT | BRISBANE, 10 MARCH 2025 |
Application for an unfair dismissal remedy – Application made one day beyond 21-day time limit – Applicant suffered workplace injury – Applicant accessed Commission’s website during 21-day period – Applicant had capacity to make application within time – Reasons for delay not supportive of extension – No exceptional circumstances – Application dismissed
On 5 December 2024, Mr Dean Phillips made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment with LMP Project Services Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.
Mr Phillips was dismissed on 13 November 2024. To be within the 21-day time limit to bring an unfair dismissal application, the application needed to have been made by 4 December 2024. The application has therefore been made one day out of time. Mr Phillips seeks an extension of time within which to make his application.
Legislative requirements
Section 394 of the Act states:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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:
(a) the reason for the delay; and
(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
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Hearing
Directions were issued, providing the parties with an opportunity to file witness statements and submissions in relation to Mr Phillips’ application for an extension of time. A hearing was convened by video using Microsoft Teams on 28 February 2025. Mr Phillips represented himself at the hearing and gave evidence. The Respondent was granted permission to be represented by Mr Craig Joy of Craig Joy Workplace Consulting.
Background
Mr Phillips commenced employment with the Respondent on 21 February 2024 as a plumber. The Respondent is a labour hire provider. Mr Phillips performed work for the Respondent’s client, BHP Mitsubishi Alliance at the Goonyella Riverside Mine (the Site).
On 3 November 2024, Mr Phillips suffered a workplace injury involving a burst water pipe. He was struck by pressurised water and received facial injuries, including a suspected cribriform plate fracture, resulting in headaches and nasal discharge. Mr Phillips made a workers’ compensation claim to WorkCover Queensland, which was accepted on 5 December 2024 and backdated to 12 November 2024.
On 9 November 2024, Mr Kieran Hollard, Director of the Respondent, issued Mr Phillips a show cause letter. The letter is reproduced below:
“Dear Dean,
As you are aware, the company have had ongoing issues with your conduct and attitude towards fellow employees, your employer, and your client’s employees. You have been warned about this on previous occasions, but have continued with your abusive and offensive language regardless.
On Sunday 3rd November you were involved in an incident at work, which led to you being offered light duties by our client’s site superintendent. You were particularly hostile to her, acting in an angry manner and being abusive. You also spoke with our own personnel and declined assistance that was offered to you, and you continued your aggressive and abusive approach.
Our client has subsequently indicated that you are not to return to site, due to having called their Site Superintendent a cunt, and this being particularly offensive to her and not acceptable in any circumstances.
Your conduct amounts to serious misconduct, and aside of the personal abuse, also damages our relationship with our client and our reputation in the industry. You have confirmed that you are aware that your conduct has been reported and amounts to a serious breach of your obligations. It clearly breaches our policies and site policies, in regard to which you recently attended a refresher session and signed as having received and understood the instructions.
Your conduct has also resulted in you now being prohibited from accessing that site, to work. We are satisfied that it would now be appropriate to terminate your employment, and seek your response as to why this should not occur.
You are directed to provide your response, and not to return to work until further directions are provided.
Yours sincerely
Kieran Hollard”
On 13 November 2024, Mr Phillips was summarily dismissed by the Respondent and issued with the following termination letter:
“Dear Dean,
As you are aware, following serious conduct alleged to have been committed by you, the company provided you with a Show Cause letter requiring you to demonstrate why your employment should not be terminated.
You have acknowledged receipt of that letter, but has not provided a response to the prospect of your employment being terminated. Most recently you have advised us that you have a GP appointment, but that you can’t get to that appointment. Whether or not you have a GP appointment does not prevent you from responding to the Show Cause letter.
We are further advised that the site health team have been in contact with you and have urged you to attend the local hospital, which you have refused, and you have refused any other assistance from them. As such they regard the matter as closed.
The health team also advise that on each occasion they have contacted you, you have been intoxicated, which would explain why you have not attended your GP. On that basis we conclude that you have had ample opportunity to respond to the Show Cause letter, and have no intention of providing a meaningful response.
We have therefore chosen to proceed with the conclusion of the matter. Based on the conclusive evidence provided, the unquestionably indefensible conduct you engaged in, and the fact that you cannot return to site in any event, we confirm that your employment is terminated on the basis of serious misconduct, without notice and effective immediately.
Your outstanding wages and any accrued annual leave will be paid into your account in the usual manner. We thank you for your time with us, and wish you well for the future.
Yours sincerely
Kieran Hollard
Director
LMP Project Services”
Evidence of Mr Phillips
In his Form F2 – Unfair dismissal application, Mr Phillips did not declare that he was making his application outside of the 21-day timeframe.
In response to correspondence from the Commission on 17 January 2025 seeking an explanation for the delay in making his unfair dismissal application, Mr Phillips stated the following:
“As I have stated, I didn’t realise how much the incident was affecting me, I am still affected by it. The incident was not my fault as claimed by my employer. I was working with my supervisor at the time and all of the permits JSA all was cleared to proceed work, the burst pipe was exposed for a couple of days, there was no threat of anything. But it did and I am going through this. Physically, mentally and emotionally, I am struggling with this. I was only doing my job. Nothing was done to help me on the day. People that I worked with said I was acting out of character, as well as my supervisor, I was offered help but because of my confused state of mind I refused not knowing that I was doing. I was for a couple of weeks feeling that I will get through this, I was wrong, I had trouble taking a shower because I was too scared of the water, I have been blamed for the incident but it’s not my fault and there are witnesses to support me. The incident happened in front of the main access gate to admiration of goonriver riverside mine and therefore there must be video evidence, can you find it, it will/should be in the investigation and also on ICAM. I am not well and struggling, I would like to know the details of the investigation into the incident.”
Mr Phillips stated that during the 21-day period following his dismissal, he attempted to make an unfair dismissal application. He provided evidence of a telephone call he made to the Commission on 29 November 2024, which lasted seven minutes. Mr Phillips stated that during this call, he believes he was instructed to make his unfair dismissal application online on the Commission’s website. In relation to his attempts to file his application online, Mr Phillips stated, “When I attempted to the system wouldn’t allow me to finish the application on a couple of occasions.”
Mr Phillips stated that he attempted to apply online on 2 and 3 December 2024 but claimed that the Commission’s online lodgement system would not allow him to submit his application. Mr Phillips provided evidence of his internet browsing history, which demonstrates that he accessed the Commission’s website on 2 December 2024. His browsing history shows he visited the Commission’s unfair dismissal page, but there was no attempt to create an account on 2 December 2024.
There is no evidence of Mr Phillips having accessed the Commission’s website on 3 December 2024, or 4 December 2024 (the 21st day after his dismissal).
Mr Phillips’ internet browsing history shows that on the morning of 5 December 2024, he accessed the Commission’s website and online lodgement system. Mr Phillips filed his unfair dismissal application on 5 December 2024 at 11:25am (AEST), around one hour to two hours after opening the Commission’s webpage. In response to questions from me during the hearing about his attempts to file his application online, Mr Phillips stated that he was “not tech savvy” and that when attempting to file his application on 2 December 2024, he probably got frustrated because he was unable to submit the application and gave up.
What is clear from the browsing history is that Mr Phillips did not reach the Commission’s ‘Apply now’ page until 5 December 2024.
During the hearing, Mr Phillips confirmed that he purchased a computer on 12 November 2024, one day prior to the dismissal. Accordingly, for the entire period between the dismissal and making his application for unfair dismissal, he had access to a computer.
Mr Phillips denied during the hearing that he was intoxicated when contacted by the Site’s medical team, stating that while he had consumed a few alcoholic drinks, he was not intoxicated.
Mr Phillips submitted various pieces of medical evidence to the Commission, including:
a) a pathology request for blood tests from 14 October 2024;
b) a WorkCover tax invoice for a consultation from 16 December 2024;
c) a paracetamol and ibuprofen prescription at the Blackwater hospital on 12 November 2024; and
d) an amoxicillin prescription at the Blackwater Hospital on 25 November 2024.
Mr Phillips also provided copies of work capacity certificates, one of which states that following an examination on 12 November 2024, he was experiencing symptoms of a cribriform plate fracture with a CSF leak. The certificate stated that Mr Phillips required treatment in the form of antibiotics, nasal decongestants and analgesic medications from 25 November 2024 to December 2024, and that he had capacity to resume some form work if suitable duties were available from 25 November 2024.
Mr Phillips submitted a letter from a psychologist from 4 February 2025, which stated that Mr Phillips was experiencing symptoms of post-traumatic stress, anxiety and other stress-related symptoms.
Respondent’s submissions
The Respondent submitted that Mr Phillips failed to provide meaningful evidence and submissions demonstrating exceptional circumstances warranting an extension of time. The Respondent submitted that the material filed by Mr Phillips was of “questionable relevance”.
It is noted that the following information was provided to the Commission in the way of submissions, not evidence. On account of the Respondent electing not to file evidence in the Commission, I will give the following submissions relevant weight.
Following Mr Phillips’ workplace incident, the Respondent noted that he was attended by site paramedics who judged him fit to remain on site and was offered the option of attending a medical facility, which he declined. The Site Superintendent then offered Mr Phillips the option of continuing on light duties which he also declined. The Respondent submitted that instead, Mr Phillips insisted on going home and that his conduct moving forward resulted in further action being taken by the Respondent, ultimately leading to his dismissal.
The Respondent submitted that the Site’s medical team attempted to assist Mr Phillips in the week following the incident, and each time they contacted him, he was intoxicated. After deeming that Mr Phillips had refused to participate in rehabilitation, the Site Superintendent informed Mr Hollard that his file would be closed. The Respondent submitted that Mr Phillips’ refusal to participate in rehabilitation itself amounted to serious misconduct.
The Respondent noted that on 10 November 2024, Mr Phillips acknowledged receipt of the show cause letter that had been issued the previous day. On 12 November 2024, Mr Phillips advised he had a medical appointment that he was unable to attend. The Respondent took this to mean that Mr Phillips was not going to respond to the show cause letter. As it eventuated, Mr Phillips did attend a medical appointment on 12 November 2024.
To the extent that Mr Phillips argues that shortcomings or failures of the Commission’s staff or website left him unable to lodge his application on time, the Respondent submitted that the evidence of Mr Phillips’ internet browsing history does not support this contention.
In relation to the work capacity certificate submitted by Mr Phillips covering the period 12 November – 19 November 2024, the Respondent submitted that it relates to the period commencing the day before the dismissal and extending into the early part of the 21-day period for the filing of an unfair dismissal application. The certificate notes “Inaction to take medical advice” as a factor “that may affect recovery”. Another work capacity certificate which relates to the period 25 November – 10 December 2024 (and includes the latter part of the 21-day period) stated that no medication that may impede safe work, travel, or cognitive function was prescribed to Mr Phillips, and that Mr Phillips could perform “suitable duties” from 25 November 2024. The Respondent therefore submitted that the work capacity certificates do not disclose that Mr Phillips’ ability to lodge his application on time was inhibited by any medication.
The Respondent submitted that the merits of Mr Phillips’ application are weak, given that he seeks compensation for lost wages and recovery of costs incurred. The Respondent contended that these remedies have been achieved through Mr Phillips’ workers’ compensation payments. Further, the Respondent submitted that Mr Phillips’ failure to seek and accept medical assistance and participate in rehabilitation also weigh against an order for compensation, and as such, an extension of time.
Applicable case law
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd,[1] where the Full Bench said:
“[10] It is convenient to deal first with the meaning of the expression ‘exceptional circumstances’ in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression ‘exceptional circumstances’ in s.394(3) and held:
‘[5] The word ‘exceptional’ is relevantly defined in The Macquarie Dictionary as “formatting an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression ‘exceptional circumstances’ was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
‘23. I am of opinion that the expression “exceptional circumstances” requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
“Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.”
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25 And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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” in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.’
[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.” [footnotes omitted].
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmon Oysters,[2]
a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[3] stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:[4]
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.” [emphasis in original]
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[5]
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[6]
Consideration
The reason for delay – s.394(3)(a)
The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[7] The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.[8]
A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[9] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[10]
In the entire period between the dismissal and making the application, Mr Phillips had a computer available to him.
On 29 October 2024, he spent some time talking to a Commission staff member about making an application. He then reviewed the Commission’s unfair dismissal page on 2 December 2024 but only went to the Commission’s application and lodgement pages on 5 December 2024, one day after the time period had lapsed.
When Mr Phillips determined to make the application on 5 December 2024, it did not take him long; he did it in around one to two hours, dependent on whether the time zones for AEST or AEDT on the evidence provided match. He has not provided a suitable explanation as to why it took him until 5 December 2024 to make the application when he accessed the Commission’s unfair dismissal page on 2 December 2024 and had capacity to bring the application then, in time.
Whilst Mr Phillips was experiencing uncomfortable medical issues during this time, they were not so debilitating to render him unable to make the application as he did so on 5 December 2024 in a relatively short period of time.
The reasons for the delay provided are, in my view, not reasons that are supportive of an extension of time being granted.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
Mr Phillips became aware of the dismissal on the day it took effect. I consider this to be a neutral factor in the determination of whether there are exceptional circumstances.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[11]
There is no evidence before the Commission that Mr Phillips took any action to dispute the dismissal. I consider this to be a neutral factor in the determination of whether there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)
I do not consider that there would be any prejudice to the Respondent caused by the delay in bringing the application. I consider this to be a neutral factor in the determination of whether there are exceptional circumstances.
The merits of the application – s.394(3)(e)
In the matter of Kornicki v Telstra-Network Technology Group,[12] the Commission considered the principles applicable to the exercise the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996. 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.”
The merits of the application to which Mr Phillips refers is that he was not responsible for the workplace incident, and he was dismissed one day after submitting a Workcover medical certificate. Further, he asserts that his conduct can be explained by having a confused state of mind.
The Respondent asserts that Mr Phillips’ conduct in abusing the client’s manager was entirely unsatisfactory and resulted in him no longer being permitted to being on site.
There is a contest between the parties that is not capable of being resolved at this time, nor is it desirable or required for me to do so. I do not regard either case as being highly meritorious or highly unmeritorious.
My consideration of the parties’ respective merits is that this is a neutral factor in the determination of whether there are exceptional circumstances.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
The criterion of “fairness as between the person and other persons in a similar position” was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[13] where it was said:
“...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.”
I am not satisfied that the criterion of fairness between Mr Phillips and other persons in a similar position weigh strongly in favour of either party. As such, I consider it a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s.394(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Whilst noting that Mr Phillips was dealing with a workplace injury, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(2).
Accordingly, the application must be dismissed. An order [PR785074] will be issued with this decision.
COMMISSIONER
Appearances:
D Phillips, the Applicant
C Joy of Craig Joy Workplace Consulting, for the Respondent.
Hearing details:
2025.
Video using Microsoft Teams.
28 February.
Final written submissions:
4 March 2025.
[1] [2011] FWAFB 975.
[2] [2018] FWCFB 975.
[3] (2010) 197 IR 403 at [16]–[18].
[4] [2018] FWCFB 901 at [38].
[5] Smith v Canning Division of General Practice [2009] AIRC 959.
[6] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[7] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]-[45].
[9] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.
[10] 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]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[12] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[13] [2015] FWC 8885 at [29].
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