Ian Scott v Mount Isa Mines Limited

[2022] FWC 358

[2022] FWC 358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ian Scott
v

Mount Isa Mines Limited

(U2021/12143)

DEPUTY PRESIDENT LAKE BRISBANE, 18 FEBRUARY 2022

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed

1. Ian Scott (the Applicant) lodged an application with the Fair Work Commission (the Commission) on 23 December 2021 seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment by Mount Isa Mines Limited (the Respondent) on 25 November 2021, effective immediately. The reasons given for his termination was his failure to comply with reasonable directions and procedures by the Respondent. It was conceded that the lodgement of the application was 28 days after the date of dismissal, being seven days outside the statutory time limit prescribed by s.394(2) of the Act.

1. The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension and a hearing was held before me on 16 February 2022.

Should a further period be granted?

1. Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it 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.

1. The test of “exceptional circumstances” establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:

“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.” [2]

1. Although Nulty considered the expression “exceptional circumstances” in the context of s.365 of the Act, its reasoning applies to s.394(3).

Applicant’s material

1. The Applicant submitted that on 25 November 2021, the day on which he was notified of his termination, he was misinformed that he would get his job back. He said he was told by Rebecca Roper, Manager GFM Operations, that he was not being blacklisted and could return to the field as a contractor. The Applicant advised he signed up for job agencies immediately and made attempts every day for a couple of weeks to get a position with the Respondent, by keeping in contact with Ross Lovejoy, Production Superintendent GFM and Ms Roper. He also applied for positions with BHP and through Seek. The Applicant stated he had hoped he would obtain his job back but he did not.

1. The Applicant noted that within a month of his dismissal, he was involved in a car accident in which the vehicle was written off. He had no car for some time, which was difficult for him as he needed to relocate back to the coast.  There were also other matters that required his attention during that period. His son and partner got sick, so he had to provide full time care to both. His attendance was also required at two court appearances, which meant that he spent the time leading up to them preparing and speaking with his lawyers. While the first appearance occurred while he still employed by the Respondent, the second one occurred on 8 December 2021 and he had to be at court all day (and thus prevented him from filing his unfair dismissal application). He further mentioned that he was also suffering from a mental health condition (and provided medical certificates to support that claim). All these stresses meant that he lost track of time.

1. In addition to the above matters which impacted his ability to file the application by the requisite time, the Applicant further claims that he faced issues with engaging his union representative. He tried, without much success, to receive any feedback or support from his union and to get the ball rolling. He was told that he was being “mucked around” and that he should obtain legal advice.

1. During this period, the Applicant was still of the belief that he might get his job back. There were positions being advertised for which he thought he was qualified and he applied but was unsuccessful. He states he received the relevant forms from the Commission on 22 December 2021. It was a couple of weeks until he could get a hold of his union representative to discuss the matter further. That conversation occurred in January 2022. Eventually, the Applicant decided to go ahead and make the application himself after speaking with the Commission.

1. During cross examination at the jurisdictional hearing, the Applicant confirmed that Ms Roper told him that he had the right to apply to for contractor roles at his own will. He further notes that he was advised he was not blacklisted and was welcome to apply the next day. He says he applied for a position with Glencore but did not receive any feedback. He received feedback from contracting companies, advising that it was difficult as not much was happening. The Applicant says he was under the impression that he would be guaranteed a role again. He knew that he had to go through an application process to be successful in obtaining the job.

Respondent’s material

1. The Respondent submits that in consideration of his reasons for delay, the Applicant had time to file for the application and get things in order. The Respondent does not hold the view that his difficulty in reaching his union representative justifies his late submissions, arguing that it is the Applicant’s responsibility to file it in time.

1. The Respondent further asserts that the Respondent has already been prejudiced if the Applicant were granted the extension because they had to sort through the Applicant’s evidence, and in some parts, the evidence is not accurate. For example, the Respondent contends that the conversation with Ms Roper on 25 November 2021 was a positive communication in which he was advised he had the right to apply for any vacancies but was still subject to a recruitment process where the hiring manager at the time has the discretion to employ him.

1. The Respondent submits that the application to the Commission was filed because he could not regain employment with the Respondent, and not because he believes his dismissal was unfair, unjust or unreasonable. The Respondent finds there is no merits to the application as the dismissal involved his persistent failure to follow directions and procedures. The Respondent felt they had no choice but to end the employment before of his failure to do so.

1. Ms Roper was gave evidence at the hearing and stated that she told the Applicant he could apply for any available job vacancies with either the Respondent or labour hire companies. She did not guarantee any of it and told him that he would be required to follow the standard recruitment process for both the Respondent and the contracting company.

1. The Respondent therefore submits that the evidence of the Applicant does not give reasonable grounds why he could not file within 21 days. The Respondent argues that the Applicant has not demonstrated why he should be granted an extension or continue with the substantial application.

Consideration

Reason for the delay (s.394(3)(a))

1. The Act does not specify what reasons for delay might constitute exceptional circumstances, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]

1. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

1. Whilst I accept that the Applicant made attempts to contact his union representative and thought he would regain employment, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”. Similarly, while the Applicant was also required to care for his family and attend court hearings, I do not except that these reasons justify the granting of an extension of time. The Applicant was capable himself to make enquiries about the process of challenging his dismissal, as can be seen through his own initiative to contact the Commission on or around 22 December 2021. I am not satisfied that there is any evidence justifying why these enquiries where not made within 21 days of his dismissal.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

1. The Applicant became aware of his dismissal on 25 November 2021. This consideration weighs neutrally.

Action taken to dispute the dismissal (s.394(3)(c))

1. It is uncontentious that the Applicant did not take steps to dispute the dismissal until he lodged this application. That said, it must be acknowledged that the Applicant did apply to various positions with the Respondent, believing that he would regain employment with the Respondent. There is no evidence, however, that the Applicant disputed the dismissal itself. This factor weighs neutrally in respect of the grant of an extension of time.

Prejudice to the employer (s.394(3)(d))

1. The Respondent submits there is prejudice to the employer primarily relating to the sorting of the Applicant’s evidence and in some parts, the evidence being inaccurate. Whilst I do not accept this to sufficiently justify there being prejudice to the employer, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group, the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). 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.” [8]

1. Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. I have not had the benefit of the parties’ substantive submissions in respect of this particular case. Consequently, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

1. The Commission may give consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[9]  Neither party made any specific submissions in respect of this factor, so I consider it to be neutral.

Conclusion

1. Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.   Accordingly, it is not appropriate to grant an extension of time. 

1. Accordingly, I order that the jurisdictional objection be upheld, and that the Applicant’s application be dismissed. 

DEPUTY PRESIDENT LAKE

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[9] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 [31].

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