Justin Wright v BHP Billiton Iron Ore Pty Ltd T/A BHP Billiton

[2016] FWC 818

[2016] FWC 818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Wright
v
BHP Billiton Iron Ore Pty Ltd T/A BHP Billiton
(U2015/16797)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] Mr Justin Wright alleged that the termination of his employment by BHP Billiton on 26 October 2015 was unfair.

[2] His unfair dismissal application lodged on 16 December 2015 was not made within 21 days of the date of the dismissal.

[3] 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.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where 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;

[5] Mr Wright said that after his dismissal, he met with his lawyer on 30 October 2015. As he was seeking reinstatement, he wrote to the President BHP on 6 November 2015 requesting a review of the decision to terminate his employment. Mr Wright was aware that he needed to make an unfair dismissal application within 21 days of his dismissal. Mr Wright contacted the Fair Work Commission and asked if he could make an application but not have it served until the review was completed. Mr Wright decided that his best chance of getting his job back was to await the outcome of the review before commencing proceedings. If unsuccessful, he would make an application out of time.

[6] At the hearing, Mr Wright stated that he thought his termination was stayed pending the review. Mr Wright did not give evidence that anyone at BHP told him that his dismissal had been stayed and that he had been reinstated pending the outcome of the review.

[7] Mr Wright was advised on 8 December 2015 that the review had been unsuccessful but he did not lodge his application until 16 December 2015. He said that he took the additional eight days because it took him this amount of time to put the application together as he lacked expertise in this area.

[8] It was submitted that Mr Wright had provided a reasonable explanation for the delay. Despite Mr Wright being told on 23 October 2015 that his services were no longer required, it was put that Mr Wright did not know his termination had taken effect until he received written notice of termination on 26 October 2015. It was said that the delay in lodging the review was because Mr Wright sought advice and had to prepare a detailed case for the President to consider. It was submitted that it was unusual for the President of BHP to be approached about a dismissal and it was unusual that the President would direct that a review would take place. This led Mr Wright to believe that he had a good chance of being reinstated.

[9] I am not satisfied that Mr Wright has a reasonable explanation for the whole of the delay. Even if I accepted that Mr Wright’s termination did not take effect until 26 October 2015, he sought advice on 30 October 2015. He was aware of the 21 day time limit. I am not satisfied that there was any reasonable basis for Mr Wright to believe that his dismissal had been stayed pending the outcome of the review. Further, I do not consider that an employee is entitled to ignore the time limits set by the Act because they believe that they will obtain a favourable outcome in a review. However, even if those circumstances were unusual, and there is no evidence on which I could find that the procedure adopted by BHP in reviewing a dismissal was unusual, once Mr Wright knew that the review was unsuccessful, he was obliged to act promptly. There is no reasonable basis on which Mr Wright could have concluded that time for lodging his application only commenced when the review ended. I do not find his explanation of why it took him eight days to lodge his application convincing. Mr Wright was aware of the time limit. He was legally represented. There was nothing to prevent him from preparing the application so that it could be lodged immediately if the outcome of the review was not successful. Further, I do not accept that it takes eight days to prepare an application.

[10] This weighs against a finding that there are exceptional circumstances.

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

[11] Mr Wright was aware of the dismissal when it took effect and 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;

[12] Mr Wright sought a review of the decision to terminate his employment. This weighs in favour of a finding that there are exceptional circumstances.

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

[13] BHP does not point to any particular prejudice. This weighs in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[14] Mr Wright was terminated for misconduct. He was alleged to have, whilst driving a company vehicle, crossed clearly marked double lines to pass another vehicle which had its right hand indicator on as it was intending turning right. Mr Wright did not immediately report the incident. It was said that this was misconduct.

[15] Mr Wright said that he was driving at 90km/hr and the vehicle in front of him was doing approximately 60km/hr. As he approached the vehicle in front, it signaled that it was going to turn right and slowed down even more. Mr Wright could not see any place where the vehicle could turn so he overtook the vehicle. After he did this, he noted that there was a turn off a few hundred metres in front of him. He also observed the double white lines which he had not noticed before overtaking. Mr Wright said there had never been any risk of a collision. Mr Wright said he reported the incident on the first occasion he saw his supervisor which was at 2pm on the same day.

[16] Mr Wright submitted that the investigation was flawed as the diagram showing where the incident occurred was inaccurate. He further said that he was not afforded a proper opportunity to respond to the allegations. Mr Wright alleged he was discouraged from using a support person. He said the dismissal was disproportionate as it was his first offence and he had a good work record. Finally, he said that he was inexperienced and his actions were an honest mistake.

[17] I am not able to make any assessment of the merits of the matter as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[18] No submissions were made on this criterion. I consider it to be neutral.

Conclusion

[19] I am not satisfied that there are exceptional circumstances. Mr Wright decided not to lodge his application knowing there was a 21 day time limit. I have found that his desire not to prejudice any internal review did not provide a reasonable explanation for the delay. Further, despite knowing that he should have lodged his application by 16 November 2015, once the review had been concluded, Mr Wright took another eight days to make an application. To have had any chance of succeeding in this application, he should have lodged his application promptly. The criteria that weigh in favour of a finding of exceptional circumstances are not sufficient as to outweigh his lack of a reasonable explanation for the whole of the delay. Mr Wright’s application for an extension of time is dismissed and hence his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S. Entriken for the Applicant.

Mr R. Wade with Ms E Jones for the Respondent.

Hearing details:

2016.

Melbourne and Perth (by telephone):

February 5.

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