Ms Tessa Bell v BHP WAIO Pty Ltd - [2022] FWC 3381

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ms Tessa Bell v BHP WAIO Pty Ltd

Details

AGLC: Ms Tessa Bell v BHP WAIO Pty Ltd [2022] FWC 3381
Case: [2022] FWC 3381
Decision Date: 30 DECEMBER 2022

CaseChat Overview and Summary

In this case, Tessa Bell applied to the Fair Work Commission for an unfair dismissal remedy following her resignation from OS ACPM Pty Ltd and subsequent withdrawal of an offer of employment from BHP WAIO Pty Ltd. The application was made outside the statutory timeframe and the issue before the Deputy President was whether an extension of time should be granted. BHP WAIO opposed an extension of time. The Deputy President considered whether exceptional circumstances existed to warrant an extension of time. The Applicant argued that she attempted to resolve the matter amicably between herself and BHP directly through their official reporting system, and 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. BHP WAIO argued that the Applicant should not be granted an extension and had failed to demonstrate exceptional circumstances. The Deputy President found that the Applicant's reasons for delay were not out of the ordinary, unusual, special or uncommon and that the Applicant had not identified the correct Respondent. The Deputy President found that exceptional circumstances did not exist and dismissed the application for an extension of time.

The final orders were that the jurisdictional objection be upheld and that the Applicant's application be dismissed.

Orders