Mark Thomson v Newmont T/A Newmont Boddington Gold Mine

[2016] FWC 2273

[2016] FWC 2273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Thomson
v
Newmont T/A Newmont Boddington Gold Mine
(U2016/533)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Mark Thomson alleged the termination of his employment by Newmont T/A Newmont Boddington Gold Mine on 15 December 2015 was unfair.

[2] His unfair dismissal application lodged on 9 February 2016 was not made within 21 days of the date of the dismissal.

[3] Newmont objected to Mr Thomson’s application on the basis that it was not Mr Thomson’s employer and his application was lodged out of time.

[4] On 7 March 2016, Mr Thomson was advised of Newmont’s objection and asked to provide information about the identity of his employer. He provided documentation which indicated that he was employed by Titan Recruitment Pty Ltd. Upon receipt of that information, he was advised that if Titan was his employer he needed to file an application to name it as the respondent to the application. Mr Thomson filed a form F1 but did not state what he wanted. When contacted, he advised that he was unsure what to do but Newmont sacked him and not Titan. He subsequently confirmed that he wanted to pursue his claim against Newmont despite acknowledging that Titan paid him and employed him.

[5] The Fair Work 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.

[6] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 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;

[7] Mr Thomson said he needed to get legal advice and he was told he needed to lodge his application on line. He does not have good computer skills and he needed to obtain assistance.

[8] Neither of these factors is unusual but they do not weigh in favour of a finding that there are exceptional circumstances.

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

[9] Mr Thomson knew of his dismissal when it took effect. This weighs against a finding that there are exceptional circumstances.

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

[10] Mr Thomson did not dispute his dismissal when it occurred. This weighs against a finding that there are exceptional circumstances.

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

[11] There was no evidence given of any prejudice to Newmont. Newmont submitted that it would be prejudiced because of the cost, time and effort it would need to put into defending the claim. I accept that there would be prejudice but this prejudice is not sufficient to weigh against a finding that there are exceptional circumstances.

(e) the merits of the application;

[12] Mr Thomson accepted that he was not employed by Newmont. Despite this he persisted with his application. His application is bound to fail. This weighs strongly against a finding of exceptional circumstances.

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

[13] There was no evidence of any other person in a similar position. This criterion is neutral.

Conclusion

[14] I am not satisfied that there are exceptional circumstances. None of the criteria weigh in favour of such a finding. Mr Thomson’s application for an extension of time is dismissed and accordingly so is his application for an unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

M. Thomson on his own behalf.

C. Mitchell for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

April 8.

 1   [2011] FWAFB 975

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