Phillip Moroney v - [2024] FWC 3473

[2024] FWC 3473

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 365—General protections

Phillip Moroney
v

BHP

(C2024/7835)

COMMISSIONER LIM

PERTH, 12 DECEMBER 2024

Application to deal with contraventions involving dismissal – application made out of time – error as to the correct jurisdiction – extension not granted.

Introduction

BHP employed Mr Moroney from November 2018 until Thursday 3 October 2024, when he was dismissed for failing to attend work. On Monday 4 November 2024, Mr Moroney filed an application under s 365 of the Fair Work Act 2009 (Cth) alleging that his dismissal was in contravention of Part 3-1 of the Act

Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, pursuant to s 366(1)(b), within such further period as the Commission allows under s 366(2). In Mr Moroney’s case, the period of 21 days ended at midnight on Thursday 24 October 2024. His application is 10 days out of time.

Mr Moroney seeks a further period for his application to be made under s 366(2). BHP opposes this. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 366(2)(a)–(e) of the Act.

I conducted a hearing on Monday 9 December 2024. Mr Moroney represented himself and gave evidence. Ms Miriam Power of BHP Limited represented BHP and Mr Tyson Ninyette’s (BHP Superintendent Mining Production) witness statement was tendered unchallenged into evidence.

Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that justify an extension of time.

The detailed reasons for my decision follow.

The evidence

Mr Ninyette’s evidence is that Mr Moroney went on a period of annual leave from August 2023 to December 2023. Mr Moroney did not return to work after his leave ended.

Mr Moroney’s limited evidence seems to suggest that he was angry about a roster change that was implemented from June 2023. Mr Moroney appeared to be aggrieved at the impact of the roster change on his personal circumstances and that other employees were not affected by the roster change.

Mr Ninyette’s evidence is that there were several attempts to contact Mr Moroney regarding the rosters and his attendance. These are set out in a letter dated Sunday 16 June 2024 from Mr Ninyette to Mr Moroney and include emails, phone calls and text messages over December 2023 to June 2024.

In the Sunday 16 June 2024 letter, Mr Ninyette informed Mr Moroney that he was directed to return to work or to provide reasonable supporting evidence to explain his absence. Mr Moroney was put on notice that his absence was unauthorised and that if he failed to present for work (or provide medical evidence) to support his absence, he would be asked to show cause…

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 Phillip Moroney v

Details

AGLC: Phillip Moroney v [2024] FWC 3473
Case: [2024] FWC 3473
Decision Date: 12 DECEMBER 2024

CaseChat Overview and Summary

Phillip Moroney brought an application against his employer, BHP, alleging that his dismissal was in contravention of Part 3-1 of the Fair Work Act 2009 (Cth). Section 365 of the Act allows for an application to be made within 21 days after the dismissal took effect. Mr Moroney's application was filed 10 days outside this time period, and he sought an extension under s 366(2) of the Act. BHP opposed the extension, and the Commission was required to decide whether there were exceptional circumstances that warranted extending the time limit. The Commission considered the evidence provided by both parties and the factors outlined in s 366(2) of the Act. Commissioner Lim found that Mr Moroney had not provided a satisfactory explanation for the delay in filing his application and that the merits of his case were poor based on the unchallenged evidence presented by BHP. Therefore, the Commissioner did not find exceptional circumstances and dismissed Mr Moroney's application.

The final orders of the Commission were that Mr Moroney’s application be dismissed. The Commissioner found that there were no exceptional circumstances that warranted an extension of time for the application to be made. Mr Moroney's reasons for the delay in filing the application were not deemed satisfactory, and the merits of his case were poor based on the evidence presented by BHP. As a result, the application was dismissed, and Mr Moroney's opportunity to challenge his dismissal under s 365 of the Act was denied.

Orders