Shaun Findlay v BHP Nickel West Pty Ltd
[2024] FWC 2473
•23 SEPTEMBER 2024
| [2024] FWC 2473 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shaun Findlay
v
BHP Nickel West Pty Ltd
(U2024/9316)
| COMMISSIONER SLOAN | SYDNEY, 23 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – unfair dismissal application filed out of time – anxiety and depression claimed – circumstances not exceptional on the evidence provided – application dismissed
On 19 July 2024, Shaun Findlay was informed of his dismissal from BHP Nickel West Pty Ltd (BHP). The dismissal took effect that day.
On 10 August 2024, Mr Findlay filed with the Fair Work Commission (Commission) an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Act).[1] The application was filed one day later than the 21 day time limit prescribed by s 394(2)(a). Mr Findlay has applied for the Commission to grant him an extension of time under s 394(2)(b) (“extension application”).
I have determined to dismiss Mr Findlay’s extension application. These are my reasons.
Principles governing extensions of time
The Commission may allow an extension of time to file an application for an unfair dismissal remedy if it is satisfied that there are “exceptional circumstances” (s 394(3)). Circumstances will be “exceptional” if they are out of the ordinary course, or unusual, or special, or uncommon, but they do not need to be unique, or unprecedented, or very rare.[2] Exceptional circumstances may 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.[3]
In determining whether there are “exceptional circumstances”, the Commission is required by s 394(3) to take into account:
“(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
The requirement to “take into account” these matters means that each of them must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[4]
These proceedings
The Commission sent an email to Mr Findlay and BHP on 16 August 2024, which observed that the unfair dismissal application appeared to have been filed one day late. The email outlined the requirements of ss 394(2) and (3) and provided hyperlinks to the Commission’s website for further information regarding extensions of time. Mr Findlay was asked to respond by email explaining why he considered that there were exceptional circumstances in his case. He was informed that he “may provide evidence which supports [his] application for an extension of time”.
The Commission received an email from Mr Findlay later on 16 August 2024. The email stated, in total and verbatim:
“Extension of time was needed as still suffering from mild anxiety and depression. Furthermore to this BHP had failed to pay me in due time as per the fair work act
Kind regards
Shaun”
I convened a directions hearing on 30 August 2024, at which I made directions in anticipation of hearing and determining the extension application. These included that Mr Findlay file and serve an outline of arguments and any evidence on which he wished to rely in respect of the extension application.
Mr Findlay did not file any material by the directed date. I arranged for an email to be sent to him on 10 September 2024 asking him to confirm his intentions.
The Commission received an email from Mr Findlay later on 10 September 2024. The email stated, in total and verbatim:
“To whom it may concern
An application of extension was sent in via email to the Commissioner on the 16th August stating why I needed a 1 day extension for my unfair dismissal application. In response to BHPs email today extension application has been made and I feel that should be sufficient evidence moving forward. No further evidence for extension will be forwarded. Furthermore to this application I would like to include more evidence of my treatment at BHP leinster if allowed.
Kind regards
Shaun”
BHP filed its submissions in response to the extension application on 12 September 2024. The submissions set out the grounds on which BHP opposed Mr Findlay being allowed an extension of time.
The hearing of the extension application took place on 20 September 2024. Mr Findlay’s submissions at the hearing were limited to reiterating the grounds in his email to the Commission of 16 August 2024. He stated that at the time he was due to file his unfair dismissal application he was “still suffering from mild depression” and “still going through the mental health program”. He also stated that at the time he had not received payment of his accrued entitlements from BHP, which he understood were required to be paid within seven days of dismissal.
At the hearing, BHP stated that it relied on its written submissions. It submitted that Mr Findlay had not produced any medical evidence to support the extension application.
I asked BHP to clarify its position regarding Mr Findlay’s contention that there had been a delay in him being paid his entitlements on termination. BHP’s response came down to two propositions. First, Mr Findlay had received payment of those entitlements on 7 August 2024. Although this was some time after his dismissal, any prejudice caused by the delay in payment would have been offset by the fact that he had effectively been overpaid. That is, he had been paid for the whole of July, despite being dismissed on 19 July 2024. Second, Mr Findlay had not explained how any delay in him receiving the payment caused his delay in filing the unfair dismissal application.
Consideration of the s 394(3) factors
I will consider in turn each of the factors in s 394(3) in light of the evidence and submissions outlined above.
The reason for the delay
For the purposes of s 394(3)(a), the relevant “delay” is the period after the statutory time period. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[6]
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.[7] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[8]
Given the position taken by Mr Findlay, I have little evidence on which to assess his explanation for his delay in filing his unfair dismissal application. Attached to the application was a document that appears to be a referral from Mr Findlay’s general practitioner to (presumably) a psychologist for Mr Findlay to receive “psychological counselling under [a] Mental Health Care Plan”. That referral is dated 29 May 2024. It offers little insight as to Mr Findlay’s condition as at 9 August 2024 (the date on which the Application was to be filed in compliance with s 394(2)(a)).
Also attached to the unfair dismissal application was a screenshot of what appears to be an email message from an unidentified person to “Jono and Breanna”, seeking their assistance to meet with Mr Findlay to “discuss some current workplace bullying and harassment he is experiencing”. The message refers to Mr Findlay being “quite distressed” and having had to take “mental health leave”. The message is undated, although the screenshot appears to have been taken on 23 July 2024.
In short, beyond the statement in his email of 16 August 2024 that he was suffering from “mild anxiety and depression”, Mr Findlay has offered no evidence as to his condition as at 9 August 2024, and how he asserts that his condition caused or contributed to the delay in filing his unfair dismissal application.
In Mamo v ICLED Australia Pty Limited T/A SignsNational Group[9] Easton DP analysed (at [20]-[23]) several decisions in which the Commission had considered an applicant’s medical condition in the context of an extension of time application. In comments which are pertinent to Mr Findlay’s case, the Deputy President concluded:
“[24] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit.
[25] In summary the following principles apply:
(i)stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii)a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit (per Roberts and Underwood);
(iii)the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).”
Mr Findlay has similarly not explained how the delay in BHP making payment of his accrued entitlements caused or contributed to his delay in filing his unfair dismissal application. I have also had regard to the fact that he did not challenge BHP’s submission at the hearing that he received payment on 7 August 2024, which was two days before the end of the statutory time limit.
I am not persuaded that Mr Findlay has provided an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Mr Findlay was notified of the dismissal on the day it took effect. He had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.
Any action taken by the person to dispute the dismissal
Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[10] In the present case, there is no evidence that Mr Findlay took any action to dispute his dismissal, such as seeking to engage in dialogue or correspondence with BHP, prior to lodging his unfair dismissal application. This is a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
In its written submissions opposing the extension application, BHP accepted that the “prejudice to it caused by the delay is a neutral factor”. However, it contended that the absence of prejudice was not a factor which of itself should militate in favour of the granting of an extension of time.
I accept those submissions. The absence of prejudice to the employer is usual in extension of time matters and does not provide a positive basis for finding exceptional circumstances warranting an extension of time for lodgement.[11] This is a neutral consideration.
The merits of the application
In the context of an extension application, it is sufficient that an applicant establish that their claim is not without merit. The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.[12]
There is limited material before me as to the merits of the unfair dismissal application. In its written submissions, BHP contended that Mr Findlay was dismissed for committing a breach of its policies and procedures, giving rise to a serious safety incident. It argued that the seriousness of the breach was to be considered in light of Mr Findlay’s position, his responsibilities as a safety representative, and coaching he had received in 2023.
In his unfair dismissal application, Mr Findlay contended, in effect, that his conduct was caused by his mental health and “perceived work pressures” placed on him on the morning of the incident. In an email from Mr Findlay to BHP, which was copied to the Commission and received on 12 September 2024, Mr Findlay asserted that BHP was aware of, but ignored, his “failing mental health”.
There does not seem to be any dispute that Mr Findlay engaged in the conduct alleged against him. The questions for determination in the matter appear to be whether the seriousness of that conduct is mitigated by Mr Findlay’s mental state on the relevant day, and whether BHP was entitled to rely on the conduct to dismiss Mr Findlay given its alleged awareness of, and contribution to, his mental state.
I have no evidence on which to make even a preliminary assessment of the way in which these questions would be answered following a hearing of the substantive application. The merits of the application is a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Mr Findlay advanced no submissions in respect of this consideration. I have been provided no basis on which to find that fairness between Mr Findlay and other persons in a similar position favours the granting of an extension of time. This is a neutral consideration.
Conclusion
I have found that the considerations in s 394(3) are either neutral or do not support a finding of exceptional circumstances. I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. There is no basis on which I could allow an extension of time under s 394(3). Mr Findlay’s extension application is declined.
I order that the application for an unfair dismissal remedy be dismissed.
COMMISSIONER
Appearances:
Shaun Andrew Findlay, Applicant
Miriam Power with Chrisopher Koller and Emily Larsen for the Respondent
Hearing details:
2024
Sydney (by video)
September 20
[1] All legislative provisions referred to in this decision are references to provisions of the Fair Work Act 2009.
[2] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[3] ibid.
[4] See for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19]
[5] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [40]
[6] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[7] Stogiannidis at [39]
[8] ibid.
[9] [2021] FWC 3903
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300
[11] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890 at [21]
[12] See ICLED Australia at [43] and the cases there referred to.
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