Mr Seth Parker v BHP Olympic Dam Corporation Pty Ltd
[2024] FWC 3068
•6 NOVEMBER 2024
[2024] FWC 3068
The attached document replaces the document previously issued with the above code on 6 November 2024.
The word ‘limit’ is inserted to replace the word ‘limited’ in the final sentence of Paragraph [43].
Amended by the Associate to Deputy President Anderson
Dated 6 November 2024.
| [2024] FWC 3068 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Seth Parker
v
BHP Olympic Dam Corporation Pty Ltd
(U2024/12081)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 6 NOVEMBER 2024 |
Application for an unfair dismissal remedy – extension of time – counting error – delay in accessing termination letter – family circumstances – whether exceptional circumstances – extension refused – application dismissed
On 9 October 2024, Seth Parker (Mr Parker or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy in relation to a dismissal by BHP Olympic Dam Corporation Pty Ltd (BHP, the respondent or the employer) which took effect on 17 September 2024.
The application is one day outside the statutory 21-day period for making unfair dismissal claims. Mr Parker seeks an extension of time. The respondent opposes an extension.
This decision determines that question.
I issued directions on 24 October and heard the extension of time issue by video on 1 November 2024.
Mr Parker and BHP were self-represented.
The facts are largely not in dispute.
Facts
BHP operates in the mining industry including at Roxby Downs in regional South Australia.
Mr Parker lives in Adelaide. He commenced working as a general miner at Roxby Downs in March 2016.
His employment was terminated for cause on 17 September 2024 by superintendent Levi Chitty. BHP alleged breaches of company policies and procedures following a short investigation and show cause process. Mr Chitty told Mr Parker the reasons. Mr Parker agreed with some, disagreed with others. He was that day sent a termination letter but did not open it.
Mr Parker was paid four weeks in lieu of notice.
Mr Parker considered aspects of his dismissal unfair. About six days after dismissal (23 September) Mr Parker spoke to friends, including one who had some legal expertise. This friend advised him that his treatment sounded unfair, he had a right to file an unfair dismissal claim and had 21-days to do so.
Based on this advice, Mr Parker decided that he would challenge the dismissal.
Mr Parker did two things. Firstly, he checked the online calendar on his phone and calculated that 21-days from the dismissal was 9 October. He thought that he had until this date to make the claim. Unknown to him, he had made a counting error.
Secondly, that same day (23 September) Mr Parker tried to look at the dismissal letter he was sent on 17 September. He was unable to open the attachment and read the letter. Mr Parker immediately sent Mr Chitty a text message to that effect. Mr Chitty did not respond.
On 27 September Mr Parker phoned BHP and spoke to the human resources department. He was advised to create a ‘case’ with an online request for the information he sought.
Mr Parker did not immediately do so because of a family emergency. He was informed that afternoon by his sister that his grandmother was gravely ill. In the days following he travelled to the Yorke Peninsula where he stayed, returning to Adelaide around 2 October.
On 3 October 2024, Mr Parker did as had been suggested to him on 27 September. He logged a case with the BHP human resources department seeking access to the termination letter.
Four days later, on 7 October 2024, BHP sent Mr Parker by email a fresh code to access the termination letter. Mr Parker entered the code and was then, on 7 October, able to read the termination letter, and did so.
The following day, 8 October, Mr Parker completed an unfair dismissal application. He decided to leave it for his partner to look at overnight, thinking he had until the following day to file.
Mr Parker’s partner checked the application and informed Mr Parker on 9 October that everything looked in order. Mr Parker went onto the Commission website and at 7.22pm (SA time) that evening (9 October) lodged an online unfair dismissal application.
In his application, Mr Parker stated that he was filing within the 21-day time limitation.
Upon its receipt of the application, Mr Parker was advised by the Commission that his application may be out of time.
Submissions
Mr Parker
Mr Parker submits that an extension should be granted because he is a lay person who had sought to inform himself of his rights, made a genuine attempt to file an in-time application and believed in good faith that he had filed on-time.
Mr Parker submits four reasons for the delay:
as a lay person, he made a calculation error. He should not be prejudiced for making a counting error about a legal timeframe;
he could not initially open the termination letter provided by BHP;
BHP did not quicky respond to his complaint about not being able to open the termination letter; and
his family and personal circumstances had to be given higher priority, including the passing of his grandmother, and having to look for other jobs in the industry in circumstances where his access has been blocked to BHP sites.
Mr Parker also submits that an extension should be granted because he has a genuine claim of unfairness, and needs the record to be corrected to protect his reputation.
Mr Parker submits that, in combination, these are exceptional circumstances.
BHP
BHP submit that an extension should not be granted because there are no exceptional circumstances.
Mr Parker was responsible for the delay because:
he made the counting error; and
he waited until late on what he believed to be the last available day before making the claim. He could have done so earlier.
BHP submit that it responded promptly when advised that Mr Parker was unable to open the termination letter attachment. Irrespective of the problem opening the attachment, he was told the reasons on the day of dismissal.
The application should be dismissed.
Consideration
Unfair dismissal applications are required to be filed within twenty-one days of a dismissal taking effect. However, s 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(3)The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which the applicant asserts constitute exceptional circumstances.[1]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[2] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[3]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[4]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[5]
It is not in dispute that Mr Parker’s application is one day out of time.
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[6] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[7]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[8]
The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[9]
I now deal with each of the reasons advanced by Mr Parker.
Counting error
Mr Parker made a counting error. Using his mobile phone calendar on 23 September 2024 it is likely that Mr Parker counted three full weeks from the day after dismissal took effect (Wednesday 18 September) and considered that he had until Wednesday 9 October to file the claim. This was an error because the FW Act provides for a 21-day time limit (counted in days), not a three week time limit counted by looking at a comparable day of the week.
The counting error was the primary reason for the delay. Once the error was made Mr Parker had it in his mind that he had until 9 October to file. This explains why he did not file on 8 October and allowed further time for his partner to look over the application.
I take into account that Mr Parker was a lay person and was counting a legal timeframe. However, counting twenty-one days sequentially from the day after a dismissal takes effect is not a complex task. Mr Parker was not provided misleading or incorrect information about how to undertake the count.
Whilst the counting error was a genuine mistake, had more care been taken by Mr Parker, it was avoidable. It is only somewhat of a reasonable explanation and does not of itself suggest exceptional circumstances.
Problem accessing termination letter
There are two aspects to this reason:
Mr Parker could not initially open the termination letter provided by BHP; and
BHP did not quicky respond to his complaint about not opening the termination letter.
There is some merit in this explanation though it did not have a material impact on the late filing. BHP did send the termination letter on 17 September as an attachment which Mr Parker could not open. It did not cure that error until 7 October, one day before the filing deadline and two days before the application was lodged. It is also reasonable that Mr Parker wanted to access the termination letter in order to populate and complete an unfair dismissal application.
The delay from 17 September to 7 October is in part due to BHP’s actions, but only in part. Mr Parker chose not to open the attachment for six days. Then, after being told by BHP to log a request, he took another six days to do so. However, BHP was also partly responsible. It did not respond to Mr Parker’s text on 23 September, requiring Mr Parker to follow up four days later. Further, it took another four days for BHP to respond to the request once logged.
Acknowledging that both parties were in part to blame for the late receipt of a readable termination letter, it must also be taken into account that Mr Paker knew the reason for dismissal from day one and, according to his evidence, discovered nothing particularly new once he read the letter.
The delay in Mr Parker having access to the termination letter is somewhat unusual but does not reasonably explain the delay.
Family and personal circumstances
There are two aspects to Mr Parker’s reliance on family and personal circumstances:
the passing of his grandmother; and
having to look for other jobs in the industry in circumstances where his access has been blocked to BHP sites.
Attending to the family emergency and travelling to and from the Yorke Peninsula reasonably occupied Mr Parker for about five of the days in the twenty-one day period. This is in part an explanation but only in part. It does not reasonably explain the late filing because Mr Parker was back in Adelaide and attending to his affairs a full six days before he filed the claim.
It is understandable that Mr Parker gave priority to this and to looking for alternative work. However, carrying a burden of looking for alternative work after dismissal was not unique to Mr Parker. Most persons dismissed must do so. It does not reasonably explain the late filing.
Considered overall, the reasons for the delay are somewhat understandable but do not clearly point in favour of a finding of exceptional circumstances.
Action taken to dispute dismissal (s 394(3)(c))
No action was taken by Mr Parker after dismissal and before filing to put BHP on notice that the merits of the dismissal would be litigated. He did however seek a readable copy of the termination letter. His objective in doing so was to assist with making a claim but also to ascertain if the letter included information about a concern he held about post-employment site access restraints.
This is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
BHP would incur time and effort in responding to an unfair dismissal claim. That said, the prejudice to the employer has no unique features.
However, the absence of prejudice would not of itself be a reason to grant an extension.[10]
In the circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
The merits of Mr Parker’s unfair dismissal application appear to concern conduct issues and whether the conduct which triggered dismissal was a valid reason for termination.
Not having heard evidence on these issues, it is not safe to express even a provisional view on the merits. Given this, it is not possible to give weight to Mr Parker’s contention that time should be extended because he has a genuine belief of unfairness or damage to his reputation or employability.
In this matter, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
This issue does not arise in this matter.
Conclusion
The one day period of delay is the shortest possible. The FW Act however requires the circumstances to be exceptional for time to be extended for even a short period such as this.
The reasons for the delay, considered individually, have some merit but do not individually point to exceptional circumstances.
The question which then arises is whether those reasons and the circumstances, when considered collectively, can be characterised as exceptional. There are some unusual aspects, leading up to the late filing. These include that the termination letter was not accessible to Mr Parker until day twenty of the time period, and the death of a grandparent in the midst of that period.
However, the fundamental reason for the delay was the counting error. This was entirely Mr Parker’s error, was not conditioned by any of these unusual features, and was avoidable if more care had been taken.
I take into account that Mr Parker acted in good faith and genuinely believed he had filed within time. Notwithstanding, he waited to lodge until what he considered to be the last day permitted for filing. By waiting until the last day, Mr Parker gave himself no room for error.
An applicant who waits until the last day of a statutory time period generally bears the consequence of any error they may make by incorrectly calculating the last day. Such a circumstance is not, of itself, exceptional or warranting an extension of time. As observed in Shaw v Australia and New Zealand Banking Group Limited:[11]
“...a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation.”
Other factors are neutral. None weigh clearly in favour. Whilst Mr Parker held a genuine grievance about his dismissal, and a genuine but erroneous belief that he had lodged on time, and the lead-up to the late lodgement was a combination of unanticipated events, given that the primary reason for delay was an avoidable counting error and a related decision to file on what was wrongly believed to be the evening of the last permitted day, I do not find the circumstances to have been exceptional.
Disposition
There being no exceptional circumstances, the time for lodgement of application U2024/12081 cannot be extended.
Being out of time, the application must be dismissed.
An order[12] giving effect to this decision is issued in conjunction with its publication.
I make a final concluding observation. It was apparent from the hearing that Mr Parker seeks clarity from BHP as to if, when or how any post-employment restraints on his access to BHP controlled work sites may apply or be reviewable. His request for information has obvious implications for Mr Parker’s capacity to secure alternate work in the industry. If BHP has any additional information to what it was able to communicate at the hearing, I encourage it to do so, particularly as these proceedings are now concluded.
DEPUTY PRESIDENT
Appearances:
S. Parker, on his own behalf
L. Ryals, of and on behalf of, BHP Olympic Dam Corporation Pty Ltd.
Hearing details:
2024.
Adelaide (Video);
1 November.
[1] Smith v Canning Division of General Practice[2009] AIRC 959
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21]
[3] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[4] [2011] FWAFB 975, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251, [5]
[5] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954, [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167, [6]
[6] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [30] and [36]
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, [35]-[45]
[8] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[9] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
[11] [2014] FWC 3903, [28]
[12] PR780985
Printed by authority of the Commonwealth Government Printer
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