Peter Weeden v Fortescue Metals Group Limited T/A Fortescue

[2015] FWC 7200

[2015] FWC 7200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Weeden
v
Fortescue Metals Group Limited T/A Fortescue
(U2015/11711)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Peter Weeden alleged that the termination of his employment by Fortescue Metals Group Limited on 15 May 2015 was unfair.

[2] His unfair dismissal application lodged on 9 September 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[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]

(a) the reason for the delay;

[5] Mr Weeden submitted several reasons for the delay in filing his application.

[6] He gave evidence that he did not doubt that his redundancy was genuine until a meeting on 7 September 2015 with WorkCover, Fortescue and Fortescue’s insurer.

[7] Mr Weeden accepted that Fortescue had a downturn in its business that resulted in the need to reduce the number of employees. His main complaint was that he considered that he could have been redeployed and that the reason why he was not was because of his injury.

[8] It was his evidence that he had not given any consideration to whether his dismissal was unfair until 7 September 2015. He accepted that he did not receive any new information at the workers compensation conciliation that caused him to consider his redundancy was not genuine. He gave evidence that his capacity to recognise that this was not a genuine redundancy was reduced due to his mental anguish and poor health.

[9] Mr Weeden gave evidence that he was told at the time of his redundancy that his wife was leaving him. While his relationship difficulties are not fully resolved, the separation was for a period of three weeks. He also gave evidence that he suffered pain as a result of an injury he sustained at work, and was suffering financial hardship. He was suffering stress as a result of what had occurred. Mr Weeden accepted that his medical condition did not prevent him from lodging his application.

[10] Further, Mr Weeden has unsuccessfully applied for a significant number of jobs.

[11] Mr Weeden relied on the decision of Commissioner Roe 2 to support this application. Commissioner Roe found that he was “satisfied that that it is not an ordinary or usual circumstance for an employee to be advised of redundancy and then shortly thereafter to become aware of facts which suggest that the reasons given may not have been genuine. I am satisfied that this situation may contribute to a finding of exceptional circumstance.”3

[12] In that matter, the applicant had not been aware that a new position was to be created which had many of the responsibilities that had previously been done by the applicant. That is not the case here. Mr Weeden accepted that there had been no new information provided to him. That he had not considered that his injury might have been a factor in deciding to not redeploy him until September 2015 does not put him in a similar position to a redundant employee who finds out that his or her job has been advertised and filled by a new employee.

[13] I do not accept the submissions that Mr Weeden could not cognitively assess the facts at the time and was unaware of their significance. There is no evidence before the Commission that supports a finding that Mr Weeden suffered any cognitive impairment in this period. Mr Weeden did not call any medical evidence to support his claim. He had filed a medical certificate dated 15 September 2015 but that was not tendered. Even if it had been, it was dated 15 September 2015 which is after the application was filed.

[14] Mr Weeden also relied on a decision of Senior Deputy President Drake 4 who found that an applicant’s poor health provided a reasonable explanation for the applicant’s delay in lodging the application. In this matter, Mr Weeden, whilst pointing to his health issues, accepted that they did not prevent him from lodging his application.

[15] While I consider that Mr Weeden has provided a reasonable explanation for some of the delay, I do not consider he has provided a reasonable explanation for the whole of the delay. This is not a case of new information. Mr Weeden was aware of his injury at the time he was made redundant. While dealing with his emotional upset caused by his marital difficulties and financial difficulties, as well as his need to find alternative employment, explains some of the delay it does not explain why he took an additional 96 days beyond the statutory 21 days to lodge his application.

(b) whether the person first became aware of the dismissal after it had taken effect;

[16] Mr Weeden was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[17] Mr Weeden did not dispute his dismissal at the time. This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[18] Fortescue did not lead any evidence to support its submission that it would be prejudiced if an extension of time were granted. Apart from the inconvenience and costs, including time and resources required to defend the application, no other prejudice was relied upon. I do not consider that any prejudice is such as to weigh against a finding of exceptional circumstances.

(e) the merits of the application;

[19] Fortescue submitted that Mr Weeden’s position was redundant; it complied with its obligations to consult and that it was not reasonable to redeploy Mr Weeden. Mr Weeden disputes that there was a genuine redundancy and believes he was selected for redundancy due to his injury. Mr Weeden submitted that Fortescue did not consult him in accordance with its obligations and it unfairly redeployed other employees rather than him.

[20] I am not able to make any final assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[21] No relevant submissions were made on this criterion.

Conclusion

[22] I do not consider that there are exceptional circumstances. While accepting that the circumstances faced by Mr Weeden were difficult they do not explain the whole of the delay. The other criteria in this matter are neutral or weigh against a finding of exceptional circumstances. Accordingly Mr Weeden’s application for an extension of time is dismissed and his unfair dismissal application is also dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr P Weeden on his own behalf.

Mr A Kennedy for the Respondent.

Hearing details:

2015.

Telephone hearing:

October 15.

 1   [2011] FWAFB 975.

 2   Elliss v Wymap Group [2015] FWC 5668.

 3 Ibid at [11].

 4   Andrew v Aussie Cabinet Co Pty Ltd [2015] FWC 5448.

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