Jodie Moore v OS ACPM Pty Ltd (BHP Operations Services)
[2022] FWC 1950
•29 JULY 2022
| [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 early hours of the next morning and she was locked in the facility. Meaning, Ms Moore was unable to depart the facility, even on foot.
Ms Moore reports that the next day she was instructed not to attend work whilst a formal process ensued into the events leading to her fatigue breach. After having investigated the fatigue breach, Ms Moore said the Respondent provided to her, and read out in its entirety, a show cause letter, to which she was required to provide a written response. Having provided a written response, a formal outcome meeting was held on 18 May 2022 in which Ms Moore was informed she was dismissed effective that day with a payment made in lieu of notice.
The Respondent submitted that prior to the incident leading to her dismissal, Ms Moore had been issued with a final written warning for attendance issues on 9 March 2022, following another show cause process. The Respondent next submitted that Ms Moore had, in addition, been issued with a written warning on 21 December 2021.
Extension of the 21-day period
Consideration turns to whether to extend the 21-day period within which Ms Moore’s unfair dismissal application was to be brought. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[3]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[4] Whilst it considered the general protection provisions of the Act, the reasoning in Nulty is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.[5]
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[6] 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 can be considered exceptional.[7]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[8] the Full Bench provided clarification regarding the assessment of ‘exceptional circumstances’, stating:
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.[9]
At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.
The reason for the delay
The Commission takes into account whether an applicant has provided a credible reason for the whole of the period in which the application was delayed.[10] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[11] 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 are 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.[12]
In Pottenger v Department of Caffeine,[13] the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[14] or a reasonable explanation.[15] It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable or for that matter credible explanation.[16]
The absence of any explanation for any part of the delay will usually weigh against an applicant in such an assessment.[17] Similarly, a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, though it is a question of degree and insight.[18]
Ms Moore’s dismissal was effective as of 18 May 2022. To comply with the statutory timeframe in s 394(2), her application for unfair dismissal would have to be filed by 8 June 2022.
Ms Moore gave evidence that prior to and post the termination of her employment, she had been battling with high levels of stress and anxiety. Ms Moore noted that it had taken over a week just to get her head together to be in any sort of mental space to approach the unfair dismissal application with some attempt of clarity and thoroughness. Ms Moore observed that there were many ‘boxes to tick’ in this matter, which required her to contact the Apprenticeship Association of Australia, the North Metro TAFE (Midland) Campus, and the Respondent to chase up her final payslip.
Adding to Ms Moore’s stress was the ongoing worry of financial hardship, with her time occupied with completing lengthy hardship applications with her banking institution and making long phone calls. Ms Moore spoke of her financial hardship being evidenced by her filing of a Form F80.
Mr Moore provided further detail that she also had her elderly parents staying with her after they had journeyed from Melbourne to offer support. Ms Moore noted that whilst this had lifted her spirits, it had taken up most of her time and attention given the need to tend to and care for them with their daily living activities.
Whilst appreciative that the Commission needed to set a timeframe in which unfair dismissal applications must be submitted, Ms Moore emphasised that her stress, anxiety, and the numerous tasks required in order to gather and best collate all information to submit for the unfair dismissal application, had been immense, and regard should be had to her fragile mental and emotional state. Ms Moore continued that should a medical certificate be required to substantiate this, she was more than willing to have her GP issue one to the Commission.
By way of documentation filed in support of the reason for the delay, Ms Moore provided several documents. The first was a ‘Letter of Support’ dated 4 July 2022 from Dr Oladipo Idris, Harvest Lakes Medical Centre. The letter set out that it was to certify Ms Moore had been experiencing ongoing mental health challenges which had required psychotherapy intervention. It continued that these (presumedly the mental health challenges) had been compounded by financial and work-related stresses, which had impacted negatively on her functioning, and she should be granted the deserved considerations and concessions.
The second letter of support was from Aubin Grove Physiotherapy, which acknowledged that Ms Moore had engaged in several physiotherapy sessions for treatment on her lower back during November and December 2020, and had attended the clinic in 2021 for treatment of a non-related knee injury, which Ms Moore was cleared for work in May 2021.
The third letter of support was a ‘Treatment Report’ from BSS Psychology, a provider of psychology services funded by the Respondent’s Employee Assistance Program. The Treatment Report detailed that Ms Moore had attended for sessions on 3 March, 17 March, 23 June, and 29 June 2022.
While sympathetic to Ms Moore’s mental health challenges, I am not satisfied that this reason constitutes a plausible reason for the delay in making her unfair dismissal application for the following reasons.
Ms Moore provided a letter of support from a medical practitioner. Whilst that letter detailed that Ms Moore had been experiencing ongoing mental health challenges which had required psychotherapeutic intervention, no timeframe was placed around those challenges. I further observe that the letter was dated 4 July 2022, near one month after the statutory deadline for making her unfair dismissal application.
One may garner support for one’s case after an event has occurred, in this case the period of delay. This may be by way of seeking out a medical certificate or a letter of support from a medical practitioner. However, in circumstances where the documentation is not contemporaneous with the event and provides no temporal reference regarding the period of mental challenge, the direct evidence holds little to no probative weight.
The letter of support from the physiotherapist similarly does not assist Ms Moore. The periods of her attendance at the clinic bear no temporal reference in respect of the period of delay, if that was the purpose for evincing such attendance.
The Treatment Report sets out that Ms Moore had sought out assistance in March 2022 and thereafter in the later part of June 2022. No assistance was sought during the period of the delay.
In short, the documentation provided does not disclose that Ms Moore was otherwise unable to function. It is evident that she could complete daily tasks, entertain and care for her elderly parents, attend to long phone calls, and complete lengthy documentation in respect of hardship applications. It appears to be the case that Ms Moore prioritised these factors over that of making her unfair dismissal application.
The unfair dismissal application form available from the Commission is a simple and straightforward document. It is accompanied by extensive guidance on the Commission’s website about unfair dismissal applications, including how to lodge an application. Furthermore, the application does not require an applicant to include any additional information other than that asked of by the form, such as a final payslip. While a payslip may be sought to confirm the correct legal identity of an employer, one would anticipate that a former employee would have past payslips to hand, or a letter of offer or employment contract, or otherwise could access a PAYG payment summary. Ms Moore’s suggestion that the delay in making her unfair dismissal application can in part be attributed to collating paperwork or ascertaining information (precisely what information is unclear) from various institutions cannot be sustained as a plausible reason for the delay. The Form F2 does not require such information; the questions asked in the Form F2 are able to be answered absent such documentation or information.
On the material available to the Commission, I am unable to conclude that Ms Moore was incapable of filing an unfair dismissal application in the requisite period and I do not consider that she has provided a plausible explanation for the entire period of the delay. Importantly, there was no probative medical evidence to support a finding that Ms Moore suffered such incapacity that she was rendered unable to lodge an unfair dismissal application in the statutory period.
The evidence in this case concerning Ms Moore’s level of incapacity during the period up to 8 June 2022 and thereafter to the time of filing her unfair dismissal application, whether considered alone or in combination with the other reasons relied upon by her, does not give rise to a finding that her difficulties were out of the ordinary course, unusual, special, or uncommon.
I have considered the delay as the period beyond the 21-day period, but have, in addition, considered the reasons for that delay by reference to the circumstances from the date the dismissal took effect. I am not satisfied that Ms Moore has made out an acceptable or reasonable explanation for the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.
Whether Ms Moore became aware of the dismissal after it took effect
At all material times from 18 May 2022 until the date the unfair dismissal application was made, Ms Moore knew that she had been dismissed – she conceded as much. Therefore, this is a neutral consideration in this matter.
Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[19] Ms Moore took no action to dispute her termination of employment during the statutory timeframe. I do not consider that this weighs in favour of a finding that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted. The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. I therefore consider this to be a neutral factor in the present case.
Merits of the application
The nature of the matter is such that consideration must be given to whether the application was made within the period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
In Telstra-Network Technology Group v Kornicki,[20] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench 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.[21]
Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application.[22] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time was granted and the matter proceeded.
In light of the materials filed by the parties, I consider this criterion to be neutral. However, I would observe that Ms Moore, appropriately in my view, conceded that she had in effect breached fatigue management guidelines by remaining on site post-shift, falling asleep and thereafter finding herself locked in a facility. Furthermore, if it is correct that only two months earlier she had been issued with a final written warning for attendance issues and had also received a written warning on 21 December 2021, the Respondent is quite correct when it contends that the unfair dismissal application has low prospects of success. This is particularly the case in circumstances where the Respondent can show there was not a significant procedural fairness deficit.
Fairness between the person and other persons in a similar position
In Morphett v Pearcedale Egg Farm,[23] the Deputy President considered this criterion and 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.[24]
My attention has not been drawn to other persons in a position similar to that of Ms Moore. I am satisfied that the issue of fairness as between her and other persons in a similar position is not a relevant consideration in this matter and is therefore a neutral factor in determining whether to grant an extension of time.
Conclusion
Having considered the matters referred to in paragraphs [15] – [44] above, I am, on balance, not satisfied that there are exceptional circumstances that warrant extending the time for Ms Moore to make her unfair dismissal application.
This is particularly the case when there is no satisfactory explanation for the delay in making the application. In this respect, the totality of the evidence is insufficient to ground a finding that Ms Moore’s circumstances were out of the ordinary course, unusual, special, or uncommon. Furthermore, I do not consider that it would be fair and equitable to grant an extension.
The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order[25] will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ms J Moore for herself;
Mr D Tuxworth, on behalf of the Respondent.
Hearing details:
2022.
Perth (via telephone).
27 June.
[1] Fair Work Act 2009 (Cth) s 394(3).
[2] Form F2 Unfair Dismissal Application.
[3] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [21].
[4] (2011) 203 IR 1, 6 [15].
[5] Ibid.
[6] Ibid 5 [13].
[7] Ibid 6 [13].
[8] (2018) 273 IR 156 (‘Stogiannidis’).
[9] Ibid 165–6 [38] (emphasis in original).
[10] Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408–9.
[11] Henderson v Hoban Recruitment Pty Ltd[2016] FWC 5041, [10].
[12] Shaw v Australia & New Zealand Banking Group Limited (2015) 246 IR 362, 366 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society [2016] FWCFB 349, [29]–[31].
[13] [2018] FWC 3403.
[14] Ibid [31], citing Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[15] Ibid, citing Roberts v Greystanes Disability Services[2018] FWC 64, [16].
[16] Stogiannidis (n 8) 166 [40].
[17] Ibid 166 [39].
[18] Ibid.
[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300.
[20] (1997) 140 IR 1.
[21] Ibid 11.
[22] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Guidice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [38].
[23] [2015] FWC 8885.
[24] Ibid [29].
[25] PR744131.
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