Ms Tessa Bell v BHP WAIO Pty Ltd
[2022] FWC 3381
•30 DECEMBER 2022
[2022] FWC 3381
The attached document replaces the document previously issued with the above code on 30 December 2022.
Citation 2 amended
Associate to Deputy President Lake
Dated 3 January 2023
| [2022] FWC 3381 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tessa Bell
v
BHP WAIO Pty Ltd
(U2022/10213)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 DECEMBER 2022 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed
Ms Tessa Bell (the Applicant) lodged an application with the Fair Work Commission (the Commission) on 25 October 2022 for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by BHP WAIO Pty Ltd (the Respondent) on 30 May 2022. It was conceded the lodgement of the application was 148 days after the date of dismissal, being 127 days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension and a hearing was held before me on 22 December 2022.
Should a further period be granted?
Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it is satisfied that there are exceptional circumstances, taking into account:
(a)the reason for the delay;
(b)whether the person first became aware of the dismissal after it had taken effect;
(c)any action taken by the person to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f) fairness as between the person and other persons in a like position.
The test of “exceptional circumstances” establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:
“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.” [2]
Although Nulty considered the expression “exceptional circumstances” in the context of s.365 of the Act, its reasoning applies to s.394(3).
Applicant’s material
The Applicant submits that she should be granted an extension of time because exceptional circumstances exist in her case. She states that the reason for delay was that she attempted to resolve the matter amicably between herself and BHP directly through their official reporting system, which she was advised to do from the lead acquisition specialist who called her after she made a complaint to Human Resources through their email.
Further, the Applicant provided in her evidence that:
(a)she was employed by the BHP Group as a Trainee Maintenance Associate on 13 July 2020. The employing entity was OS ACPM Pty Ltd, and the role was located on the East Coast at Caval Ridge Mine. She suffered a workplace injury around November 2021 and cleared to work on May 2022. She was on workers compensation on and off for 18 months with physical and psychological injuries.
(b)She returned on light duties and was encouraged to identify a role that would better suit her capabilities. The Applicant applied for and was offered a role with BHP WAIO on the West Coast to commence on 6 June 2022. The Applicant then resigned her position with OS ACPM Pty Ltd on 30 May 2022.
(c)she states that she was asked to resign in her current role in order for her to pursue her new role and was provided a letter of offer.
(d)BHP WAIO withdrew the offer of employment prior to her planned commencement date.
(e)she states that she was unaware of the due diligence checks and that it was not her duty to know what the logistics of the recruitment process were. She agreed that she had to do a medical and background check for her original role at BHP but did not believe she had to do it again because she was an internal employee.
(f)she states that she tried to amicably resolve the matter between BHP WAIO and herself but was not able to contact someone directly.
(g)she states she was not informed of how long it would take to resolve the matter and when she asked for updates, she was told the case was still “under investigation”. She states she did not lodge an application with the Commission at the time, because she believed that she would have a full resolution with BHP and would not have to go down the route of involving a third party, as this is not something that she wanted to do if it meant she could solve it amicably with them directly.
Respondent’s material
The Representative of the Respondent provided a response for both responding entities as they are part of the group of BHP companies. The Respondent submits that the Applicant should not be granted an extension and has failed to demonstrate exceptional circumstances.
Further, the Respondent states that:
(a)the Applicant resigned from her employment with the Respondent on or about 31 May 2022 in anticipation of securing a role with BHP WAIO Pty Ltd (WAIO) and raises another jurisdictional objection that she was not dismissed.
(b)the Applicant was aware from at least 1 July 2022 that she had not been successful in securing employment with BHP WAIO.
(c)the Applicant made an EthicsPoint complaint on 4 July 2022 (Complaint).
(d)in the Complaint the Applicant stated that the outcomes she expected from raising the matter were:
a.the reason(s) why the Applicant was unsuccessful in securing employment with WAIO;
b.reimbursement of loss of income incurred for the month of June 2022; and
c.reimbursement for the cost of flights booked by the Applicant in anticipation of securing employment with WAIO;
(e)the Respondent raised a number of cases where the choice by a dismissed employee to delay making an application to the Commission whilst they seek a review or an appeal of their dismissal internally with their employer was not an acceptable reason for the delay citing Z Gao v Department of Human Services,[3] McRae v Peerless Products Pty Ltd,[4] Wayne Nichols v Alsco[5] and Jordanka Petkoff v BLSSA Pty Ltd.[6]
(f)the Respondent ‘s representative raised that the Applicant had not identified the correct Respondent.
Consequently, the Respondent’s view is that the Applicant’s reasons for delay do not constitute exceptional circumstances that are out of the ordinary, unusual, special or uncommon.
Consideration
For the purposes of this decision, I have taken the dismissal to be the resignation she tendered on 30 May 2022.
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might constitute exceptional circumstances, however decisions of the Commission have referred to an acceptable[7] or a reasonable explanation.[8] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [9]
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[10]
As raised by the Respondent, the Fair Work Commission has established on numerous occasions that a choice by a dismissed employee to delay making an application to the Commission whilst they seek a review or an appeal of their dismissal internally with their employer is not an acceptable reason for the delay citing Z Gao v Department of Human Services,[11] McRae v Peerless Products Pty Ltd,[12] Wayne Nichols v Alsco[13] and Jordanka Petkoff v BLSSA Pty Ltd.[14]
I am not satisfied that her reasons provided for delay are not out of the ordinary, unusual, special or uncommon. I find this factor weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant states she resigned on 30 May 2022 and the offer was withdrawn on 1 July 2022. The Applicant was unsure in identifying the correct Respondent in lodging her application because of the multiple groups of companies within BHP group. I have used her date of her resignation with OS ACPM Pty Ltd as her date of alleged dismissal.
The Applicant resigned and was aware of her date of alleged dismissal. She had the opportunity to lodge an application within the 21-day time period but had chosen not to in her attempts to resolve the matter internally. This factor weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant in her evidence states that she took steps to dispute the dismissal stating that she was asked to resign to pursue a new role with BHP WAIO and raised a complaint to Ethicspoint on 4 July 2022. The Respondent argues that the Applicant did not dispute her dismissal but was seeking an outcome of why the Applicant was unsuccessful, reimbursement for loss of income in June 2022 and costs of flights booked by the Applicant in securing employment with BHP WAIO. I consider this factor to be neutral.
Prejudice to the employer (s.394(3)(d))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[15] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group, the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.” [16]
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. The Respondent raises that the matter would require further evidence to address the merits of the Applicant’s claim considering that the Applicant’s concerns with the recruitment process are outsourced and in fact that she was not dismissed from BHP WAIO. I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may give consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[17] There have been multiple instances in the Commission where an extension was not granted because of attempts resolving the matter with the employer.[18] This factor weighs against an extension of time.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. I am not satisfied that her situation reached the high bar of “exceptional circumstances” that the Act requires before an extension of time can be granted.
Accordingly, I order that the jurisdictional objection be upheld and that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 [14].
[2] [2019] FWC 25.
[3] [2011] FWAFB 5605.
[4] [2018] FWC 2173.
[5] [2019] FWC 1870
[6] [2020] FWC 1778.
[7] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].
[8] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].
[9] [2018] FWCFB 901 [39].
[10] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[11] [2011] FWAFB 5605.
[12] [2018] FWC 2173.
[13] [2019] FWC 1870
[14] [2020] FWC 1778.
[15] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[16] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[17] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 [31].
[18] Z Gao v Department of Human Services [2011] FWAFB 5605; McRae v Peerless Products Pty Ltd [2018] FWC 2173; Wayne Nichols v Alsco [2019] FWC 1870 and Jordanka Petkoff v BLSSA Pty Ltd[2020] FWC 1778.
Printed by authority of the Commonwealth Government Printer
<PR749286>
0
0
0