Mr Joel Bruce-Morich v Bhp Billiton Iron Ore Pty Ltd

[2013] FWC 2910

[2013] FWC 2910

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Joel Bruce-Morich
v
BHP Billiton Iron Ore Pty Ltd
(U2012/17179)

COMMISSIONER CLOGHAN PERTH, 20 MAY 2013

Unfair dismissal.

[1] This is an application by Mr Bruce-Morich seeking a remedy for alleged unfair dismissal. The application was not filed within 14 days as then required under ss.394(2) of the Fair Work Act 2009 (FW Act). Accordingly, it is necessary for the Commission to determine whether exceptional circumstances exist to allow a further period for Mr Bruce-Morich to file the application.

RELEVANT BACKGROUND

[2] On 29 December 2012, Mr Bruce-Morich made application to the then Fair Work Australia, now Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with BHP Billiton Iron Ore Pty Ltd (Employer).

[3] The application is made pursuant to s.394 of the FW Act.

[4] The Applicant commenced employment with the Employer on 8 August 2011 as a Production Technician.

[5] On 9 May 2012, Mr Bruce-Morich was issued with a new updated contract of employment. The contract expressly includes that the Applicant:

• “...must hold any qualifications, licenses...you told the Company you have prior to commencing employment...” and



• is required to “maintain all necessary qualifications which enable you to fulfil your duties and must notify the Company if any of those qualifications are either temporarily or permanently cancelled, revoked, suspended or invalidated...Failure to do so may result in termination of your employment” (my emphasis); and



• is “required to comply with all of the Company’s workplace policies, standards, procedures and the Staff handbook as amended from time to time”.

[6] As part of his employment, Mr Bruce-Morich is required to have and maintain a full Class C Australian driver’s licence. This requirement is set out in the Staff Handbook and the Employer’s Light and Road Going Vehicle Use Policy (Policy). Relevantly, the Policy provides:

• “in the event that a driver loses his/her licence for any reason, they must notify their supervisor immediately and forfeit all [BHPBIO] driving privileges;



• Driving breaches can be classified as minor, serious or very serious and penalties shall apply accordingly. Employees found in breach of the rules stated in this document will be subject to disciplinary action; and



• Very serious breaches include...driving without an appropriate licence...Very serious breaches may result in final written warning or termination of employment”.

[7] In early October 2012, Mr Bruce-Morich sought additional annual leave to attend court and advised the Employer that he was required to attend court concerning his driving licence suspension.

[8] Following enquiries, the Employer stood aside the Applicant on his return from annual leave on 24 October 2012.

[9] On 31 October 2012, the Employer held a disciplinary meeting with the Applicant in which it was alleged, contrary to his contract of employment, Staff Handbook and Policy, Mr Bruce-Morich had driven on site without holding a valid driver’s licence, and furthermore, he had failed to inform his supervisor of the suspension of his licence.

[10] It is not necessary to go into detail but further disciplinary meetings were held on 6 and 27 November 2012.

[11] On 27 November 2012, the Applicant was issued with a letter terminating his employment. Mr Bruce-Morich’s employment was terminated with four weeks’ pay in lieu of notice.

[12] In the letter terminating his employment, the Employer refers to the Applicant’s failure to notify the Company that his driver’s licence had been suspended and that he had driven a vehicle on the work site while his licence was suspended. The Employer explained that these actions were a serious breach of his contract of employment, Company policy and other workplace documentation.

[13] For the Commission to have jurisdiction to hear and determine the merits of Mr Bruce-Morich’s application, it is necessary for the Commission, in the first instance, to be satisfied that there are exceptional circumstances, taking into account the provisions in ss.394(3) of the FW Act to extend the period to file the application as it was not made within 14 days after the dismissal took effect. The criteria in ss.394(3) of the FW Act are as follows:

(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.

[14] To determine whether there were exceptional circumstances I issued procedural directions on 18 March 2013 and advised the parties that I would deal with the issue of an extension of time by way of written submissions.

APPLICANT’S SUBMISSION

Reason for the delay - s.394(3)(a)

[15] Mr Bruce-Morich submits that the reasons for the delay in not filing the application within 14 days are as follows:

• ill-health, low self esteem, poor well being and dire personal circumstances. The Applicant felt unable to take action and was exhausted;



• that he was discharged from Port Hedland Hospital after 15 day stay suffering an acute illness. His medical certificate advised Mr Bruce-Morich to rest until 26 November 2012;



• he was extremely concerned for family and financial commitments due to proximity to Christmas;



• the alleged demeaning process of his dismissal which made the Applicant reluctant to “relive the experience once again”.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

[16] Mr Bruce-Morich submits that he only became aware of the dismissal after it had taken effect and that his letter of termination of employment states, “on this basis, your employment will be terminated with a payment of four weeks’ pay in lieu of notice...”

[17] The Applicant submits that “will be” indicates intent and not a specified date of termination. Accordingly, he was not able to “pin point” an actual date to file the unfair dismissal application.

Action taken to dispute the dismissal - s.394(3)(c)

[18] The Applicant advises that he made contact with the Commission on 29 December 2012 for “the purpose of lodging an unfair dismissal claim”. The application received by the Commission on 29 December 2012 was undated and unsigned.

[19] As a consequence, the Commission, on 2 January 2013, requested a signed and dated application within 14 days. On 21 January 2013, Mr Bruce-Morich provided a signed and dated application.

[20] In both his applications on 29 December 2012, 2 and 21 January 2013, Mr Bruce-Morich states in response to the question, “date dismissal took effect” - “not yet effective”.

[21] The Applicant does not advise, in his submission, of any other action to dispute his dismissal.

Prejudice to the employer - s.394(3)d)

[22] The Applicant asserts that there is no prejudice to the Employer and the delay occurred due to emotional, psychological and physiological impacts rather than any intention to cause delay.

Merits of the application - s.394(3)(e)

[23] The Applicant refers to, in his submission, to “communication and procedures throughout the duration of this difficult period”. In particular, Mr Bruce-Morich refers to; the lack of priority or urgency in his final pay; becoming unemployed at short notice; the expense of relocating to his family; cessation of communication by the Employer from 27 November 2012 and the alleged contradiction of the Employer’s policy of being a family friendly employer with its insensitive and uncompassionate attitude towards him.

Fairness between the Applicant and persons in a similar position - s.394(3)(f)

[24] Mr Bruce-Morich did not provide any submission in relation to this criterion.

EMPLOYER’S SUBMISSION

[25] Shortly put, the Employer disputes a number of the facts asserted by Mr Bruce-Morich and submits that there are no exceptional circumstances which warrant the Applicant being granted an extension of time to make his unfair dismissal application beyond the standard 14 days provided for within the FW Act.

CONSIDERATION

[26] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“...a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[27] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[28] The vast majority of employees who do make application to the Commission alleging unfair dismissal, do so within 14 days. However, the Parliament has provided the Commission with the discretion to extend the 14 days where there are “exceptional circumstances”. In my view, Parliament’s prescription of having applications filed within 14 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.

[29] The burden lies with Mr Bruce-Morich to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[30] The Applicant asserts that his letter of 27 November 2012 states that his employment “will be” terminated and consequently he was unable to “pin-point” the actual date to file the application. Consequently, it is necessary to determine whether this issue formed part of the reason for the delay.

[31] The circumstances leading up to the letter of termination of employment are that: Mr Bruce-Morich was stood aside from having to work on 24 October 2012 and attended two disciplinary meetings before 27 November 2012. At the meeting on 27 November 2012, the Applicant was fit enough to return to work to attend what he describes as a “show cause” meeting. At that meeting, the Employer asserts that Mr Bruce-Morich was advised that his employment was to be terminated and the letter of termination was read and given to him.

[32] I am satisfied that Mr Bruce-Morich was informed, on 27 November 2012, that his employment was terminated immediately with four (4) weeks’ pay in lieu of notice. In reaching this conclusion, I take comfort from the fact that on the following day, the Applicant emailed the Employer as follows:

“I would like to be supplied with a certificate of service and separation certificate, as I have had my bhp billiton employment terminated very recently...

If you could also inform me my official termination of employment date that would be nice.” (my emphasis)

[33] Further, in the days immediately after 27 November 2012, the Applicant had to complete what is described as a “Site Termination Clearance”. The Employer’s document states a termination date of 27 November 2012. Mr Bruce-Morich had to have the various sections signed off which included a hearing test before he would receive his final pay. On 28 December 2012, the Applicant received a copy of his final payslip, certificate of service and separation certificate.

[34] I now turn to the other reasons stated by Mr Bruce-Morich for the delay in filing the unfair dismissal application.

[35] Mr Bruce-Morich relies upon his ill health, low self esteem and general poor wellbeing as a reason for not filing the application within 14 days. It should go without saying that, for most employees, being dismissed is not a positive experience - that is the norm. Dismissed employees, having made the decision to seek a remedy for alleged unfair dismissal have 14 days to implement that decision by filing an application in the Commission. The “bottom line” to use a colloquial expression, is that, despite any negative feelings and the practical consequences of being dismissed, the dismissed employee has to implement their decision to challenge the fairness of a dismissal - and do so, within 14 days.

[36] To accept as exceptional, the Applicant’s “ill health, low self esteem, poor wellbeing and dire personal circumstances”, without any evidence, enables Mr Bruce-Morich to unilaterally self determine what is exceptional, and accordingly, an extension of time - a situation which is not sustainable.

[37] The negative financial, emotional or physical impact of being dismissed is, unfortunately, the norm and is not exceptional. While the impact can vary from individual to individual, Parliament has provided 14 days for employees to make a decision. Mr Bruce-Morich’s circumstances are neither exceptional nor extraordinary.

[38] For completeness, I note that the Applicant’s period of hospitalisation and rest all occurred prior to his termination of employment. Further, and finally, notwithstanding his physical and emotional circumstances, he states that in trying to think positively, he “decided to obtain government benefits...[and was] advised...to present them [Human Services Department] with an employment separation certificate”. While it may be argued that the Applicant had to do this out of necessity, it is illustrative of his capacity to undertake activities of an enquiring nature and make application to a government department.

[39] Having considered the above, I am not satisfied that the reasons advanced by Mr Bruce-Morich are exceptional.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[40] For the reasons I have set out above in paragraphs [28] to [31] I am satisfied that Mr Bruce-Morich became aware of his dismissal on 27 November 2012.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[41] The Applicant submits that he took no action to dispute his dismissal until making contact with the then Fair Work Australia on 29 December 2012.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[42] Mr Bruce-Morich submits that the Employer has suffered no prejudice caused by the delay in filing the application. The Employer asserts that it has suffered prejudice but without setting out the reasons. I have adopted a neutral position with regards to this criterion.

Paragraph 394(3)(e) - the merits of the application

[43] While I have considered the submissions of the parties, I consider that only after a hearing will the veracity of these assertions be determined. However, in view of the nature of the alleged unfair dismissal, much of the merits of the application would be determined on the facts. In the overall circumstances of the application, I have adopted a neutral consideration regarding this criterion of whether time should be extended to file the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[44] Both parties did not provide a submission regarding this criterion. Consequently I have adopted a neutral view in relation to whether there are exceptional circumstances.

CONCLUSION

In conclusion, for the reasons I have set out generally and those in particular, I am not satisfied that exceptional circumstances existed which led to the delay in Mr Bruce-Morich filing his application. Accordingly, the application must be dismissed. An Order to this effect will be issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 4 April 2013.

Respondent: 18 April 2013.

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