Jodie Moore v OS ACPM Pty Ltd (BHP Operations Services) - [2022] FWC 1950

[2022] FWC 1950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jodie Moore
v

OS ACPM Pty Ltd (BHP Operations Services)

(U2022/6472)

DEPUTY PRESIDENT BEAUMONT

PERTH, 29 JULY 2022

Application for an unfair dismissal remedy

Ms Moore applied for an unfair dismissal remedy having been dismissed from OS ACPM Pty Ltd (the Respondent) on 18 May 2022. She lodged her unfair dismissal application with the Commission on 20 June 2022, some 12 days outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the basis that the application was filed outside of time. This decision deals with that objection.

Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

It is not contested that Ms Moore’s application was made out of time. However, for Ms Moore’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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 issues before me are whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.

Ms Moore advanced several reasons why I should find that there are exceptional circumstances. In short, however, I am unpersuaded that such circumstances are exceptional, and I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed. My reasons follow.

BACKGROUND

Ms Moore commenced her position with the Respondent on 17 July 2020. From all accounts, it appears that she was an apprentice working toward the attainment of a trade qualification – mechanical fitter.[2]

An incident appears to have occurred on 28 April 2022, where after having been informed that she had failed to complete two core units from the March 2021 curriculum, Ms Moore decided to stay after shift to locate the Learner Guides and Handbook material on the ‘BHP’ server. Ms Moore notes that her extreme fatigue caused her to fall asleep and when she awoke it was the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 1950
Decision Date: 29 JULY 2022

CaseChat Overview and Summary

Jodie Moore sought a remedy for an unfair dismissal from OS ACPM Pty Ltd (BHP Operations Services), arguing her dismissal was unjust. The Fair Work Commission considered the dismissal application lodged 12 days beyond the statutory 21-day period as prescribed by the Fair Work Act 2009 (Cth). The primary issue before the Deputy President was whether the circumstances were exceptional enough to warrant an extension of time to lodge the application. The Deputy President evaluated the application based on the criteria outlined in section 394(3) of the Act, including the reason for the delay, awareness of the dismissal, action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between the parties. The Deputy President found that Ms Moore's reasons for the delay, which included stress and anxiety, were not exceptional, as the evidence did not substantiate that she was unable to file the application within the statutory period. Consequently, the Deputy President ruled that the application for an extension of time was not warranted, upheld the jurisdictional objection, and dismissed the substantive unfair dismissal application.

Orders