Mr Brendon Bruschi v BHP Billiton Mitsui Coal Pty Ltd T/A BHP BMC Poitrel
[2018] FWC 2864
•11 JUNE 2018
| [2018] FWC 2864 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Brendon Bruschi
v
BHP Billiton Mitsui Coal Pty Ltd T/A BHP BMC Poitrel
(C2018/813)
COMMISSIONER HUNT | BRISBANE, 11 JUNE 2018 |
Application to deal with contraventions involving dismissal - extension of time – exceptional circumstances - extension of time granted.
[1] Mr Brendan Bruschi was employed by BHP Billiton Mitsui Coal Pty Ltd T/A BHP BMC Poitrel (BHP) from 7 September 2017 until his dismissal on 25 January 2018. Mr Bruschi has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed in contravention of the general protection provisions of the Act.
[2] Mr Bruschi first made an application on 16 February 2018. An amended application was filed by Mr Bruschi on 21 February 2018 under a covering letter which stated, “I have attached a Form 8 that i hope is presented in more appropriate format”. The application filed on 16 February 2018 was both complete and accompanied by the filing fee and is therefore taken to be lodged on that date.
[3] Section 366 of the Act states:
‘366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.’
[4] For Mr Bruschi to have made his application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 15 February 2018. The application has been made one day out of time.
[5] Mr Bruschi seeks an extension of time within which to make his application. He contends that during the 21 days following his termination he was engaged in disputing the dismissal with the company through its internal resolution process and an independent resolution process.
[6] Further, on 15 February 2018, being the last day within the time limit in which to bring the claim, Mr Bruschi attempted to lodge the application on the Fair Work Commission (Commission) Online Lodgment Service (OLS) between 12.00pm and 2.00pm. He did so unsuccessfully.
[7] The parties were invited to file material relevant to s.366 of the Act. On 16 April 2018 correspondence was sent to the parties asking if a hearing was sought, or if the parties were content with the application being determined ‘on the papers’. Both parties communicated that they wished for the matter to be determined on the papers. However, following this communication it became apparent that BHP was not aware of some material relevant to Mr Bruschi’s attempts to use the OLS on 15 February 2018. Accordingly, a telephone hearing was held on 7 June 2018. Mr Bruschi represented himself and gave evidence. Ms Catherine Berry of Herbert Smith Freehills was granted leave pursuant to s.596(2)(a) of the Act to represent BHP.
Submissions and Evidence of Mr Bruschi
[8] Mr Bruschi provided statements dated 12 and 13 March 2018 for the Commission’s consideration. The statements largely addressed the merits of his substantive claim.
[9] The statements describe the events of 28 December 2017 when Mr Bruschi participated in a random drug and alcohol screening at the BHP Billiton Mitsui Coal Poitrel Mine, and the events following the test in which Mr Bruschi raised concerns with management. Mr Bruschi stated that he followed the dispute resolution process set out in the enterprise agreement that covered the work performed by him.
[10] Mr Bruschi stated that following the urine sample being provided at the screening on 28 December 2017, the collector identified the test as non-conforming, and transferred the sample into another cup. The second cup was also identified as non-conforming. A second collector was called into the room to inspect the test cups, and both collectors agreed to transfer the sample to a third cup. The third cup was identified as conforming and tested non-negative for methamphetamine and amphetamine. The collector took a sample from the third cup to dispatch for laboratory testing. Mr Bruschi estimated this process to have taken between 45 minutes and an hour.
[11] The first collector advised a supervisor of the result of the initial test. The supervisor then accompanied Mr Bruschi to camp, along with the acting production superintendent. Mr Bruschi was issued a letter notifying him that he was directed to stand aside and not attend work.
[12] Mr Bruschi maintained contact with BHP regarding his concerns about the testing procedures used, and on the next available appointment that could be made, he returned a negative result on all substances.
[13] The test result was sent to BHP, however the test was not accepted as it was not a NATA accredited result. Mr Bruschi then took another test and these results were accepted by BHP. Mr Bruschi stated that he had never failed a drug or alcohol test throughout his ten years of experience in mining.
[14] Mr Bruschi was issued with a show cause letter on 11 January 2018. He provided a written response on 14 January 2018. Mr Bruschi maintains that between 31 December 2017 and 25 January 2018 he raised his concerns regarding the testing procedures with various supervisors as required in the Issue Resolution Procedure of the enterprise agreement (EA) covering his employment with BHP.
[15] On 25 January 2018 he was called to a meeting where his employment was terminated. Mr Bruschi said there was no mention of any investigation into his concerns regarding the testing of the first sample supplied by him.
[16] Following this, Mr Bruschi requested the General Manager’s contact information as the next in the ‘chain of command’ pursuant to the Issue Resolution Procedure of the EA.
[17] Mr Bruschi also described his frustration, disappointment and stress in dealing with BHP throughout the process, which caused some detriment to his mental health for which he utilised BHP’s Employee Assistance Program (EAP). 1 A particular instance is that Mr Bruschi was told to vacate his accommodation and that alternative accommodation arrangements would be made for him, but there was no booking upon his arrival.
[18] Addressing s.366(2)(a) and (b) of the Act in tandem, Mr Bruschi submitted that the delay in filing his application was due to his attempts to resolve the issue in accordance with the Issue Resolution Procedure of the EA.
[19] On 7 February 2018 Mr Bruschi had a discussion with Mr Edan Stolberg, General Manager, where it was agreed that pursuant to Part 21(f) of the Issue Resolution Procedure, produced below, an independent arbitrator, ‘EthicsPoint’ would be appointed to review Mr Bruschi’s concerns:
‘(f) Where the matter remains unresolved, the company or employee or the employee's representative of their choosing, may refer the matter to FWA or, by agreement of both parties, an agreed private arbitrator or mediator to conciliate on the matter.’
[20] Mr Bruschi stated that between 7 and 15 February 2018 he participated in the EthicsPoint process.
[21] Between 5 and 7 February 2018 Mr Bruschi sought legal advice in respect of an ‘unfair dismissal claim’. Mr Bruschi attached to his submissions copies of correspondence between himself and Hall Payne Lawyers on 5 and 7 February 2018. Mr Bruschi had initially intended on pursuing an unfair dismissal claim, but was advised (correctly) on 7 February 2018 that his period of employment did not meet the minimum employment period to successfully bring a claim of unfair dismissal.
[22] On 15 February 2018 Mr Bruschi attempted to use the Commission’s OLS to lodge the application. This attempt was undertaken between 1.10pm and 1.41pm. A reference # 42482 was generated. Mr Bruschi’s evidence is that when using the OLS he provided his credit card details. He had no reason to believe that his credit card details would be declined or that the application would not be lodged, as he had sufficient money available on his credit card.
[23] Following what Mr Bruschi considered to be a successful lodgment of his application he printed off the document generated by the Commission. He did not revisit the document until later that evening, when he noticed for the first time the printed document stated ‘Draft Application’ at the top. The first page of the document states:
‘Lodgment details
Lodgment date: Application not lodged
Lodgment time: Application not lodged
State: QLD
Reference number: 42482
Comments
Hi I request that you consider the submission of this Form 8. I ask you would consider affording me to amend a few items as I have run out of time for lodgement. I have been in gauged with the companies dispute resolution service.’
[24] Upon discovering that the application had not been lodged, Mr Bruschi considered it appropriate to contact the Commission early the next morning to enquire why he had received notification that the application had not been lodged. He initiated contact with the Commission the morning of 16 February 2018. He was informed by Registry staff to make inquiries of his bank to see if his credit card had been charged for the application fee.
[25] At 2.01pm on 16 February 2018 Mr Bruschi sent the following email to the Commission’s Brisbane Registry with the subject ‘1 of 3 Brendon Bruschi Form 8 Ref # 42482’:
‘To the Fair Work Commission I request that you accept my Form 8 application. On a follow up call it has been identified as not lodged as I used the online lodgement service.’
[26] It appears that Mr Bruschi’s credit card was not charged on 15 February 2018. Only later when the Registry staff spoke with Mr Bruschi on the telephone and took his credit card details was his card charged the application fee.
[27] Mr Bruschi submitted that he considered on 15 February 2018 that his application had been lodged. He stated that he was not familiar with the OLS, and he thought that he had completed all that he needed to do to bring a valid application.
[28] In respect of s.366(2)(c), Mr Bruschi submitted that there would be no prejudice to the employer caused by granting the extension, as the employer had been informed of his concerns from 31 December 2017 in respect of the procedures surrounding non-conforming drug and alcohol test kits. Mr Bruschi had initially raised this even prior to being given a show cause letter and before providing his response to show cause. Mr Bruschi further submitted that BHP had been involved every step of the way throughout the internal dispute resolution process and the external process with EthicsPoint.
[29] Mr Bruschi made no submissions in respect of s.366(2)(d) and (e), however as stated. Much of the material submitted discusses matters going to the merits of the application.
Submissions of BHP
[30] It was submitted for BHP that no exceptional circumstances have been identified by Mr Bruschi, nor do any in fact arise. BHP’s submission is that the Commission should refuse Mr Bruschi’s request for an extension of time and dismiss the application.
[31] BHP submitted that Mr Bruschi has not made any submissions or provided any evidence which go toward establishing the existence of ‘exceptional circumstances’, nor has he sufficiently addressed the statutory criteria set out in section 366(2) of the Act. Instead, he has placed material before the Commission which is not relevant or is misconstrued.
BHP’s submissions on s.366(2)(a) – the reason for the delay
[32] At the hearing before me, BHP submitted that even allowing for Mr Bruschi’s attempt to lodge the application through the OLS, Mr Bruschi has been unable to demonstrate that there was a technical error on the Commission’s behalf. BHP state that the error is, more than likely, user error.
[33] Upon printing off the document, Mr Bruschi should have been alerted to the fact that the application had not been lodged. He had approximately three hours from 2.00pm on 15 February 2018 to discuss this issue with the Commission. If he did only discover the issue in the evening, it was submitted that he should have made email contact with the Commission.
[34] BHP summarised the reasons for the delay broadly identified by Mr Bruschi as follows:
(a) engagement with the “BHP BMC Poitrel dispute system chain of command”;
(b) engagement with the Respondent’s “EthicsPoint” process;
(c) an inability to communicate with the General Manager of Poitrel mine;
(d) consultation with a legal adviser in relation to unfair dismissal prospects;
(e) “learning available options”; and
(f) misunderstanding the online lodgment service.
[35] It is BHP’s submission that these explanations, whether considered independently or in combination, do not constitute a sufficient reason for the delay in filing the application. Further, these circumstances are not exceptional.
[36] With respect to the dispute resolution procedure under clause 21 of the EA, BHP submitted the dispute resolution procedure had not been enlivened, as it could only apply to an issue arising out of the interpretation or application of the EA, or matters related to the NES. Any issue Mr Bruschi had concerning the application of the drug and alcohol testing regime did not fall within these issues.
[37] It is submitted that Mr Bruschi has attempted to reverse engineer a scenario by which his conduct during the dismissal process and after dismissal fell within the ambit of the dispute process so as to provide somewhat of an explanation for the reasons for the delay in bringing the application.
[38] BHP contended that if Mr Bruschi attempted to draw in the application of the Issue Resolution Procedure by relying on clause 6.5 of the EA, which deals with adherence to health and safety requirements, policies and procedures, together with medical examinations for physical or psychological impairment, he is incorrect.
[39] BHP submitted that where the Commission might attribute weight to an applicant’s involvement in a formal dispute resolution process or alternative FWC application, such weight should not be attributed in the circumstances because Mr Bruschi’s conduct did not amount to involvement in a formal dispute process. If the Commission is satisfied that the parties’ conduct did constitute engagement under the dispute resolution procedure, BHP submitted that such participation is not exceptional and does not justify a failure to comply with s.366(1) of the Act. Participation in a dispute resolution process does not preclude an employee from filing a separate application in the Commission simultaneously.
[40] BHP submitted that Mr Bruschi’s use of the EthicsPoint process is not exceptional and does not justify a failure to comply with section 366(1) of the Act.
[41] Mr Bruschi first engaged with the EthicsPoint process on 7 February 2018. Evidence before the Commission demonstrates the following dialogue between EthicsPoint and Mr Bruschi: 2
‘EthicsPoint: 12 February 2018 at 8.57am Thank you for raising this concern. An investigation into the concerns raised is now complete and appropriate action taken. The decision to terminate your employment, confirmed by a letter to you dated 25 January 2018 remains unchanged. Regards, BMC HR
Mr Bruschi: 12 February 2018 at 4.11pm Thank you for your brief statement in regards to my termination ! Can you please explain with more detail in regards to the collection process contaminating the sample that was tested. Regards Brendon
EthicsPoint: 15 February 2018 at 12.17pm Hi Brendon, We can confirm the process was in accordance with the Poitrel Drug and Alcohol Management Plan and Australian Standards. Regards, BMC HR’
[42] BHP contended that prior to and during the time that Mr Bruschi was engaged with the EthicsPoint process, he was aware that he was able to commence a Fair Work Commission process to dispute his dismissal. This is evidenced by the fact that Mr Bruschi sought legal advice in relation to commencing an unfair dismissal process between 5 February 2018 and 7 February 2018.
[43] BHP relied on the principles espoused in the Full Bench decision McConnell v A & PM Fornataro T/A Tony's Plumbing Service 3 and submitted that:
(a) the Applicant’s decision to engage in an alternative process (even where undertaken at the suggestion of another party) does not mitigate the Applicant’s obligation under section 366 of the Act to file an application with the 21 day time limit; and
(b) participation in an alternative process does not mitigate the Applicant’s ability to “investigate his claim still further and to come to a conclusion as to the appropriate course of action that he should take”. 4
[44] With respect to Mr Bruschi’s purported inability to communicate with the General Manager of the mine, BHP submitted that Mr Bruschi has failed to provide any evidence as to how an inability to contact the General Manager might have delayed the application. Furthermore, Mr Bruschi conceded that he did in fact speak with the General Manager, Mr Edan Stolberg, on 7 February 2018, after which time he still had a further period of 8 days to file his application.
[45] With respect to the legal advice obtained from Mr Bruschi on 7 February 2018, BHP submitted that is no basis to suggest that the advice received by him was incorrect or that representative error explains the delay in filing.
[46] BHP submitted that Mr Bruschi made only a brief reference in his amended application to his purported issues with using the OLS in his amended application and to learning of his available options. BHP submitted that Mr Bruschi has not advanced any basis upon which these events justify his failure to comply with s.366(1) of the Act.
BHP’s submissions on s.366(2)(b) – any action taken by the person to dispute the dismissal
[47] BHP does not dispute that Mr Bruschi took steps to dispute the dismissal from the date on which it took effect.
BHP’s submissions on s.366(2)(c) – prejudice to the employer (including prejudice caused by the delay)
[48] BHP acknowledges that the delay was short, and that it will not suffer undue prejudice were an extension of time be granted. BHP submitted that, as the Commission has repeatedly observed, a short delay does not of itself point towards the existence of exceptional circumstances.
[49] BHP submitted that Mr Bruschi has attempted to pursue an unfair dismissal application under the guise of a general protections application. If an extension is granted to Mr Bruschi, BHP would be prejudiced in being required to defend an unfair dismissal claim where the Applicant was precluded from such a claim at law.
BHP’s submissions on s.366(2)(d) – the merits of the application
[50] BHP contended the case to be wholly without merit in light of (amongst other things) of the following facts:
(a) the Applicant has failed to identify any basis on which his dismissal occurred because of a reason prohibited by Part 3-1 of the FW Act (rather the application merely refers to ‘contraventions’ of alleged workplace rights);
(b) the Applicant has failed to identify any particular ‘workplace right’ that was allegedly ‘contravened’; and
(c) the Applicant has failed to provide any evidence to support allegations of breaches of section 345 of the FW Act.
[51] It was submitted that Mr Bruschi has not identified any workplace right that was the alleged reason for his dismissal. The adverse action taken against the employee (i.e. his dismissal) was taken because Mr Bruschi provided a urine sample that tested non-negative for methamphetamine and amphetamine. 5
[52] Mr Bruschi alleged several misrepresentations of his ‘workplace rights’ in circumstances where the representatives of BHP did not agree to, respond to or escalate concerns raised by him throughout the investigation and dismissal process. BHP denies that it misrepresented Mr Bruschi’s workplace rights. Further, Mr Bruschi has not advanced any evidence or basis to suggest that any conduct of BHP or its representatives ‘knowingly or recklessly’ misrepresented his workplace rights.
[53] BHP submitted that Mr Bruschi is simply aggrieved by perceived unfairness in the investigation and dismissal process, however has received legal advice that he is ineligible to pursue an unfair dismissal application. 6 Accordingly, Mr Bruschi has misguidedly attempted to ‘fit a square peg into a round hole’7 by conveying his concerns of unfairness into the criteria for a general protections application.
BHP’s submissions s.366(2)(e) – fairness as between the person and other persons in a like position
[54] BHP contended that Mr Bruschi does not point to any other relevant comparator for the purposes of subsection 366(2)(e). However, given the absence of any acceptable reason for the delay, it would be unfair to other applicants who have been refused extensions if one were granted in these circumstances. 8
Applicable Case Law
[55] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd9where the Full Bench said:
‘[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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]
[56] For exceptional circumstances to arise as contemplated by s.366(2) of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
[57] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,10 a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers11 stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:12
‘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.’ (original emphasis)
Consideration
Subsection 366(2)(a) - The reason for the delay
[58] Mr Bruschi sought to rely on a combination of factors as contributing toward the delay in filing his application and has set out a comprehensive statement of events leading up to his dismissal. In Mr Bruschi’s submissions, the reason for the delay is largely attributed to his engagement in other avenues for resolving his concerns about the drug testing process directly with the employer.
[59] Without dealing with BHP’s contention that the Issue Resolution Procedure had not been enlivened, it is not apparent from Mr Bruschi’s submissions how his purported participation in the Issue Resolution Procedure prevented him from properly filing his application within time. For the large part, Mr Bruschi’s reliance on the steps within the Issue Resolution Procedure was between the period of the commencement of the investigation and the date of the dismissal. Other than Mr Bruschi’s request for the General Manager’s contact details which then post-dates the dismissal, the other events pre-date the dismissal.
[60] Furthermore, it is not in dispute that Mr Bruschi engaged in BHP’s EthicsPoint process. EthicsPoint appears to offer employees of BHP with an avenue of internal appeal of decisions BHP has made. Mr Bruschi was informed of the outcome of the EthicsPoint process on 12 February 2018, with the last communication to him on 15 February 2018.
[61] Prior to his EthicsPoint application, Mr Bruschi had sought and was later provided legal advice about making an unfair dismissal application in relation to his dismissal. Mr Bruschi was advised that an application would have limited prospects for success and it appears that following this advice he decided to pursue the EthicsPoint application.
[62] Mr Bruschi does not explain how a decision to engage in the EthicsPoint process contributed to the delay in filing his application. It is conceivable that perhaps Mr Bruschi was holding out hope that BHP’s decision to terminate his employment would be overturned by BHP, and consequently did not want to make an application in the hope that course would eventuate.
[63] In light of the legal advice, which was quite properly sought by Mr Bruschi, it cannot be said that he was unaware of his ability to make an application to the Commission to dispute his dismissal or he was under some kind of mistaken impression that his EthicsPoint application prevented him from applying. Further, Mr Bruschi was informed of the outcome of his EthicsPoint application prior to the expiration of the statutory timeframe to make this application.
[64] In his amended application, Mr Bruschi made reference to issues that he had been having with using the OLS to file his application. In light of Mr Bruschi’s claim of misunderstanding, a report was requested by my Chambers from the Commission’s IT Department. It is evident that Mr Bruschi prepared his application on 14 February 2018 and attempted to file it through the OLS at approximately 1.10pm on 15 February 2018, and within the statutory time limit.
[65] This time accords with Mr Bruschi having received the final response from EthicsPoint at 12.17pm on 15 February 2018. It is evident that having received the final answer from EthicsPoint, Mr Bruschi set about to try and lodge the application. Mr Bruschi was ‘within time’ when he received the final notification from EthicsPoint that the decision made by BHP was final. Within an hour he sought to make the application. It is telling that he received a reference number. I accept Mr Bruschi’s evidence that he did attempt to make payment of the filing fee on 15 February 2018 with his credit card.
[66] I accept that it’s an event that is out of the ordinary course for Mr Bruschi to have considered that he validly made an application, attempted to make payment of the filing fee by credit card, only to discover hours later that the application was not lodged. While it is true that Mr Bruschi could have attempted to have emailed the Commission upon being alerted in the evening of 15 February 2018 that the lodgment had not been successful, I have had due regard to his conduct the following day.
[67] Early the next day Mr Bruschi initiated a telephone call with the Commission. He set about to file the application by email, using the reference number he had received and arranged for payment of the application fee.
[68] Mr Bruschi was agitating his dismissal, as evidenced in the consideration required in s.366(2)(b). In going to the Commission’s OLS on 15 February 2018, Mr Bruschi was completing the last step to bring his application alive. Upon becoming aware on 15 February 2018 that he had not successfully completed the action, he took all necessary steps to do so on 16 February 2018, without delay. I consider that Mr Bruschi being confronted with the difficulty he experienced with the OLS was out of the ordinary course of action of what he was attempting to achieve.
[69] In accepting the reason for the delay being the OLS issue Mr Bruschi experienced, I do not accept any other submission of Mr Bruschi as constituting an exceptional circumstance.
[70] Noting that the determination whether to grant an extension or not is a discretionary one, I have determined that the reason for the delay weighs in favour of exercising the discretion to grant an extension of time.
Subsection 366(2)(b) - Any action taken by the person to dispute the dismissal
[71] It is not contested by BHP, and so much is clear from the material filed by both parties, that from the outset Mr Bruschi intended to dispute the results of the drug test that led to his dismissal. Furthermore, Mr Bruschi took steps to dispute the dismissal, including by seeking legal advice about his prospects for success.
[72] Whether Mr Bruschi had a right to pursue the Issue Resolution Procedure of the EA, it appears that nobody from BHP ever suggested to him that he was incorrect in this pursuit. In any event, these activities occurred prior to the decision to dismiss. Regard need only be had for the action taken by Mr Bruschi to dispute the dismissal; that is, his post-termination conduct.
[73] Mr Bruschi took numerous steps to dispute the dismissal. I have determined that the action taken by Mr Bruschi to dispute his dismissal weighs in favour of exercising the discretion to grant an extension of time.
Subsection 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)
[74] BHP accepted that the delay was short, and that it did not suffer undue prejudice as a result of the application being filed late.
[75] I am not satisfied the delay of one day would cause any prejudice to BHP. This is a neutral consideration in determining whether to exercise the discretion to grant an extension of time.
Subsection 366(2)(d) - The merits of the application
[76] It is well established that in considering whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case’. 13 The Commission has further propounded this approach and the principles relating to the discretion to extend the time for making an application in Kornicki v Telstra-Network Technology Group,14 where it said:
‘If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.’
[77] After considering the material filed by both parties in relation to the substantive application, there is great weight to BHP’s submission that the application is essentially an unfair dismissal application disguised to attempt to fit the criteria of a general protections application.
[78] On the other hand, Mr Bruschi has not been able to articulate his application clearly, relevant to what he claims to be the workplace rights he says were affected. In Mr Bruschi’s show cause response to BHP he claimed that there had been privacy and confidentiality breaches regarding the testing of the specimens, and he stated, ‘I feel this could have an undesirable affect (sic) on my future pathway.’ It may be that this is the only alleged contravention of the general protections provisions that Mr Bruschi may be able to pursue.
[79] I do not consider that prima facie Mr Bruschi has demonstrated that his case has merit and this weighs against exercising the discretion to grant an extension of time.
Subsection 366(2)(e) - Fairness as between the person and other persons in a like position
[80] Mr Bruschi did not make submissions as to the relative fairness between himself and other persons in a like position. BHP submitted that given there is an absence of any acceptable reason for the delay, it would be unfair to other applicants who have been refused extensions if one were granted in these circumstances.
[81] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd: 15
‘Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’
[82] Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time. 16 Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.
[83] I am not satisfied that the issue of fairness as between Mr Bruschi and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.
Conclusion
[84] I have considered each of the criteria set out in s.366(2) of the Act. I have determined, on balance that there are exceptional circumstances in this case. The exceptional circumstances threshold having been met, I am also satisfied, for the same reasons, that it is appropriate to exercise my discretion to extend time.
[85] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I order that the time within which Mr Brendon Bruschi may make an application under s.366 of the Act be extended to 16 February 2018.
[86] The application will be scheduled for conciliation before a staff conciliator.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
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1 Applicant’s Submissions – Document 7.
2 Attachment to Affidavit of Brendon Bruschi dated 12 March 2018.
3 [2011] FWAFB 466.
4 Ibid at [19].
5 Document 6 attached to the Applicant’s EOT Statement dated 25 January 2018.
6 Attachment 3 to the Applicant’s EOT Statement.
7 Respondent’s Submissions at [50].
8 See, for example, Woollen v Steel-Line Group t/a Mirage Doors [2014] FWC 6025 at [13]; Ladd v Qube
Logistics Pty Ltd [2014] FWC 7771 at [12]; Tilley v R & T Partnership Pt Ltd T/A Harcourts Ashmore [2014] FWC 6028 at [13].
9 [2011] FWAFB 975.
10 [2018] FWCFB 901.
11 (2010) 197 IR 403 at [16]-[18].
12 [2018] FWCFB 901 at [38].
13 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].
14 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
15 [2016] FWCFB 6963 at [41].
16 See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O’Connor T/A Hair
Republic [2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.
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