Phillip Moroney v
[2024] FWC 3473
•12 DECEMBER 2024
| [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 why his employment should not be terminated.
On Friday 5 July 2024, Mr Ninyette sent Mr Moroney a letter via registered post outlining that his absence was unauthorised and directing him to contact Mr Ninyette by Friday 12 July 2024. On Friday 12 July 2024, Mr Ninyette sent Mr Moroney another letter via registered post.
On Tuesday 23 July 2024, Mr Moroney sent Mr Moroney an email from a Hotmail email address. The email stated, “I was waiting for you to respond to my emails and calls text about alternative rosters”.
On Friday 13 September 2024, Mr Ninyette sent Mr Moroney an email to his Hotmail email address. This email outlined BHP’s attempts to contact him and that Mr Ninyette had not received any further emails, calls or text messages from Mr Moroney. Mr Ninyette informed Mr Moroney that he was directed to return to work on Tuesday 17 September 2024.
On Friday 27 September 2024, Mr Ninyette sent Mr Moroney another email to his Hotmail email address. This email contained a disciplinary outcome letter asking Mr Moroney to show cause why his employment should not be dismissed.
That same day, Mr Ninyette sent a screenshot of the email to Mr Moroney via text message, asking Mr Moroney to urgently read and respond to the email. Mr Moroney replied asking if the email had been sent to his Hotmail email address, which Mr Ninyette confirmed it had.
On Tuesday 1 October 2024, Mr Moroney replied from his Hotmail email address: “Hello Tyson. Reference to you[r] email. I wasn’t offered a[n] alternative roster, tra[n]sfer, or a 12 month transition like everyone else. I was just handed [a] 8/6 roster letter with the comments [M]erry Christmas! Last time I spoke to you on the phone, you were going to ask if I could continue 2 week on 4 off. Then I rang you again, and you sent a text saying [you’re] busy you call back.”
On Thursday 3 October 2024, Mr Ninyette sent an email to Mr Moroney advising that BHP held significant concerns about Mr Moroney’s ongoing and unauthorised absence and his lack of evidence to support the absence. Mr Ninyette’s email informed Mr Moroney that his employment would be terminated effective immediately.
Should an extension of time be granted?
Under s 366(1) and (2) of the Act, the Commission may allow a further period for an application made under s 365 to be made if the Commission is satisfied that there are exceptional circumstances.
It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[2]
In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2):
(a)the reason for the delay; and
(b)any action taken by the person to dispute the dismissal; and
(c)prejudice to the employer (including prejudice caused by the delay); and
(d)the merits of the application; and
(e)fairness as between the person and other persons in a similar position.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
3.1 Reason for the delay
For Mr Moroney’s application to have been made within 21 days after the dismissal took effect, Mr Moroney needed to lodge by midnight on Thursday 24 October 2024. The delay is the period commencing immediately after that time until Monday 4 November 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]
Mr Moroney gave three reasons why his application was filed late.
BHP did not call him to communicate his dismissal: It is not contested that BHP did not call Mr Moroney to inform him of their decision to end his employment. However, there is no requirement that an employer must call an employee, especially if the decision to dismiss has been conveyed in some other acceptable way.
BHP sent the termination letter to his ‘work email’: During the hearing Mr Moroney explained that he had two Hotmail email addresses, and that he used one of them for work-related correspondence and the second one for personal correspondence. The Hotmail email address that Mr Moroney used to communicate with BHP was his ‘work email’. Mr Moroney’s evidence is that he had two email accounts for work-life balance and that he had not seen the termination letter when it was first sent. Mr Moroney agreed that he had set up this ‘work’ Hotmail account of his own volition; that he had access to it; and as of the date of the hearing it was still active.
In Ayub v NSW Trains,[7] a Full Bench of the Commission found that where an employee is informed by email that they have been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the employee’s inbox. This is consistent with s 14A of the Electronic Transactions Act 1999 (Cth). The Full Bench noted that there may be circumstances where mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal – i.e. when the employee has not read the email due to incapacitating illness. However, “a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal”.[8]
In this case, I do not find that BHP sending the termination letter to Mr Moroney’s Hotmail email account that he had designated for work matters is a satisfactory reason for his application being filed late.
Mr Moroney initially filed his application in the wrong jurisdiction: Mr Moroney says that after he was dismissed, he rang Wageline. Wageline is an information service run by the Western Australian State Government that predominantly deals with employment matters for parties in the WA state industrial relations system. Mr Moroney says that Wageline informed him he had 28 days from the date of his dismissal to file an application.
Mr Moroney filed a screenshot of an email titled ‘unfair dismissal’ that was sent to the Wageline general email address on Tuesday 29 October 2024. This email only contained the words, “Thank you[,] Phillip Moroney” with eight attachments that were not identified or provided separately to me to examine. Mr Moroney says that on Wednesday 30 October 2024, emailed and informed him that he needed to file an application in the Fair Work Commission. Mr Moroney then filed this application on Monday 4 November 2024.
Mr Moroney filed extremely limited evidence in support of this submission. He did not provide details as to when he called Wageline, or any evidence such as call logs. Mr Moroney did not explain what had led him to believe that he could file any application at all with Wageline, when Wageline is an information service, not a tribunal. Mr Moroney also did not provide the alleged email that Wageline sent to him on Wednesday 30 October 2024.
Mr Moroney also did not explain why he filed his application with the Fair Work Commission on Monday 4 November 2024 if he knew on Wednesday 30 October 2024 that he had attempted to file in the wrong jurisdiction.
There are certainly examples where the Commission has found that an applicant’s error in filing in the wrong jurisdiction has constituted an acceptable reason for delay. However, each case turns on its own facts.
In this case, Mr Moroney bears the onus of proving his case. I accept that he thought he had filed material with Wageline to dispute his dismissal. However, without any evidence to support his contentions that he had called Wageline at some earlier, unidentified date, and without details of what was discussed, it is difficult to accept Mr Moroney’s reason for why his application was filed late.
Even if I did accept that Mr Moroney made inquiries with Wageline and he genuinely thought he had filed an application in the state industrial relations system, he has not provided any reason for the delay between Wednesday 30 October 2024 and Monday 4 November 2024.
I find that overall Mr Moroney has not provided a satisfactory explanation for the delay in filing his s 365 application. This is a factor that weighs against a finding of exceptional circumstances.
3.2 Action Mr Moroney took to dispute the dismissal
Mr Moroney submits that he sent an application to Wageline “asking for what he was entitled to”. Mr Moroney did not expand on this submission. Mr Moroney’s email to Wageline on Tuesday 29 October 2024 was titled, “unfair dismissal”, but based on the screenshot I cannot determine what the attachments to that email are.
Based on the limited evidence and submissions I can only determine that Mr Moroney contacted Wageline by email on Tuesday 29 October 2024 regarding his dismissal. This was already outside the 21-day deadline for him to file this application. In the circumstances, I treat this factor as neutral.
3.3 Prejudice to the employer (including prejudice caused by the delay)
Mr Moroney submits that there will be no prejudice caused to BHP. BHP agrees. However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[9] In these circumstances I treat this consideration neutrally.
3.4 Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[10] Further, the primary consideration is whether Mr Moroney has an arguable case.[11]
In cases like this where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing the applicant’s case at its most favourable.[12]
Mr Moroney submits that he was the only employee who did not receive an alternative roster or the option to keep his prior roster pattern for a 12-month transition period. He also submits that he should have been transferred to another BHP role.
Mr Moroney did not challenge Mr Ninyette’s evidence that he had been absent from site since December 2023. Mr Moroney also did not challenge the evidence that he had failed to attend meetings to discuss his absence and that he had not responded to various emails, letters, calls and text messages. Mr Moroney did not address any of this in his written materials or when he was given the opportunity to make oral submissions during the hearing.
Mr Moroney’s Form F8 identified that he believes he was dismissed due to family or carer’s responsibilities. However, he has not provided any evidence or submissions to flesh this contention out. Based on the unchallenged evidence from Mr Ninyette, I find that Mr Moroney’s case has poor merits. This is a factor that weighs against a finding of exceptional circumstances.
3.5 Fairness as between the Applicant and other persons in a similar position
Mr Moroney submits that his situation is less fair than the situation of other people in a similar position as “other people probably get phone called”. I take this to be a submission that other people have received a phone call regarding the decision to dismiss them.
I refer to my comments in [27] of this Decision and find that this is a neutral consideration in assessing whether there are exceptional circumstances.
Conclusion
Having considered all the circumstances of this matter and the factors in s 366(2), I am not satisfied that there are exceptional circumstances. I find that Mr Moroney does not have a satisfactory reason for why his application was filed late and based on Mr Ninyette’s unchallenged evidence, the merits of Mr Moroney’s application are poor.
As I am not satisfied that there are exceptional circumstances, I order that Mr Moroney’s application be dismissed.
COMMISSIONER
Appearances:
P Moroney, Applicant.
L Strawbridge for the Respondent.
Hearing details:
2024.
Perth, by Video using Microsoft Teams:
9 December.
[1] Nulty v Blue Star Group Ltd[2011] FWAFB 975 [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 [39].
[6] Ibid [40].
[7] [2016] FWCFB 5500.
[8] Ibid [50].
[9] Jovcic v Coopers Brewery Limited [2023] FCA 797.
[10] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[11] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 [32]-[34].
[12] Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 [42].
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