Denis Resetar v BHP Billiton Iron Ore Pty Ltd

[2015] FWC 7204

[2015] FWC 7204

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Denis Resetar
v
BHP Billiton Iron Ore Pty Ltd
(U2015/13255)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Denis Resetar alleged that the termination of his employment by BHP Billiton Iron Ore Pty Ltd on 8 September 2015 was unfair.

[2] His unfair dismissal application lodged on 30 September 2015 was not made within 21 days of the date of the dismissal.

[3] On 9 October 2015, BHP’s representative advised the Fair Work Commission that BHP did not object to Mr Resetar’s application for an extension of time. As a result, I caused correspondence to be sent to the parties asking if they consented to the matter being determined on the papers. Both parties advised that they consented to this course.

[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 1where 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]

(a) the reason for the delay;

[6] Mr Resetar gave evidence that he was represented by a solicitor, Ms Victoria Mihalakopoulos at the termination meeting of 8 September 2015. Ms Mihalakopoulos advised him to seek an internal review and subsequently advised him to engage the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to assist him. Mr Resetar gave evidence that Ms Mihalakopoulos continued to deal with BHP and the CEPU on his behalf.

[7] Mr James Murie, Divisional Assistant State Secretary of the CEPU, filed a witness statement and said that on 16 September 2015, he was contacted by Ms Mihalakopoulos seeking assistance from the Union about Mr Resetar’s internal appeal. Ms Mihalakopoulos told Mr Murie that Mr Resetar was dismissed on 14 September 2015. Mr Murie relied on this date in relation to any potential unfair dismissal. Mr Murie said that on 28 September 2015 he told Ms Mihalakopoulos that he needed to be sure about the termination date and asked her to send him the termination letter. Ms Mihalakopoulos emailed the termination letter to Mr Murie on 29 September 2015, a day that Mr Murie was absent from work due to illness. Mr Murie said when he opened the email on 30 September 2015 he realised the termination date was 8 September 2015. Mr Murie filed the unfair dismissal application that day.

[8] In Robinson v Interstate Transport Pty Ltd, the Full Bench distilled the principles to be considered when dealing with representational error: 2

“[25] The approach in Clark's Case was summarised in Davidson's Case as follows:

"In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted."”

[9] I accept that Mr Resetar had a reasonable explanation for the delay. He was entitled to rely on his representatives to lodge his application. He was entitled to rely on Ms Mihalakopoulos providing the CEPU with the correct information about his termination date. Her failure to do so meant that the application was one day late. This weighs in favour of a finding of exceptional circumstances.

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

[10] Mr Resetar was notified of his dismissal on 8 September 2015. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[11] On 17 September 2015, Mr Resetar sought an internal review of the decision to terminate his employment. He provided documentation to BHP in support of his appeal. BHP was aware that Mr Resetar disputed his dismissal. This weighs in favour of a finding that there are exceptional circumstances.

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

[12] There were no submissions or evidence of any prejudice to the BHP. This weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[13] Mr Resetar submitted that BHP dismissed him because of alleged breaches of BHP’s charter and code of conduct and because he displayed a pattern of unsafe behaviour. Mr Resetar submitted that his employment was terminated following an incident on 14 August 2015 where he was accused of not locking in the safety pins on the forklift tine. Mr Resetar submitted that the tines were locked. Mr Resetar further submitted that BHP had not adequately considered the workplace environment where he had endured constant harassment and abuse from other employees. He submitted that the work environment had caused mental stress and management had ignored this.

[14] BHP did not dispute Mr Resetar’s evidence, and while I accept that it did so in the context of an extension of time application it did not oppose, on the material before the Commission the merits of the application weigh in favour of a finding that there are exceptional circumstances.

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

[15] No submissions were made on this criterion.

Conclusion

[16] I consider that there are exceptional circumstances. Mr Resetar has a reasonable explanation for the delay in lodging his application. His claim that his dismissal was unfair is not unarguable and while he had the full 21 days to lodge his application, he was entitled to rely on his representatives to file his application. He took action to dispute his dismissal and there is no prejudice to the employer. Having found that there are exceptional circumstances, I have decided to exercise my discretion to grant Mr Resetar an extension of time.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975.

 2   [2011] FWAFB 2728.

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