Stuart Fisher v BHP WAIO Pty Ltd
[2022] FWC 1694
•22 JULY 2022
| [2022] FWC 1694 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Stuart Fisher
v
BHP WAIO Pty Ltd
(C2022/417)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 22 JULY 2022 |
Application to deal with contraventions involving dismissal – application filed one day out of time – no exceptional circumstances – no discretion enlivened to grant an extension of time – application dismissed.
Introduction
On 11 January 2022, Mr Stuart Fisher (Applicant) filed a general protections involving dismissal application (under s.365 of the Fair Work Act 2009 (Act)) with the Fair Work Commission (Commission). The Applicant alleges that he was dismissed by BHP WAIO Pty Ltd (Respondent) in contravention of Part 3-1 of the Act because of the outcome of three investigations described to be intentional and strategic adverse action.[1]
Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to the existence of “exceptional circumstances”, as required by s.366(2) of the Act).
The parties are not in dispute that the Applicant was “dismissed” on 20 December 2021, and was notified of his dismissal on that date.
The Applicant should have filed his Application on or before 10 January 2022. Given that the Applicant filed his Application on 11 January 2022, it has been filed one day past the 21-day statutory time limit.
At the hearing on 8 June 2022, the Applicant appeared for himself, and Ms Rachel Dawson, Partner, Herbert Smith Freehills, appeared with permission for the Respondent.[2] The Respondent relied upon the Witness Statement of Mr Daniel James Scully, Superintendent Locomotive Workshops, and their submissions dated 3 June 2022.[3]
The Applicant relied upon his submissions dated 20 May 2022.
Legal principles
Section 366(2) of the Act reads:
“366 Time for application
…
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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 like position.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, has stated:
“[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.
[14]Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”[4]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”[5]
(emphasis added)
In Mohammed Ayub v NSW Trains[6], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[7]:
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
..
[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
…
[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”[8]
Reason for delay[9]
On the issue of reason for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group[10], as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[11] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[12]
In summary, the Applicant submitted that his over-commitment to the preparation of the Application, coupled with his known “extreme and diagnosed anxiety/ stress with ever-increasing pressure and consequences” are the reasons for delay.[13]
The Respondent relevantly made the following submissions on the issue of the Applicant’s reasons for delay:
“5. The Applicant has raised, in summary, the following explanation for his delay:
(a) overcommitment at preparing;
(b) prioritising, filtering and referencing evidence;
(c) extreme and diagnosed anxiety and stress;
(d) highly important life matters;
(e) impaired ability to prioritise due to a reaction to bullying and harassment;
(f) navigating emotional and physical responses to committing nature;
(g) a desire to provide as much information as possible; and
(h) lack of confidence.
6. The Oxford English Dictionary definition of the word ‘exceptional’ is, ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’ and the Macquarie Dictionary definition is, ‘forming an exception or unusual instance; unusual; extraordinary.’
7. The threshold for an exceptional circumstance under the Fair Work Act 2009 (Cth) (Act) has been described by the Fair Work Commission as a ‘very high bar’ and ‘strictly limited’.
8. Recent case authority, where an extension of time was considered, weighs against the Applicant in the assessment of whether the matters he has raised are exceptional circumstances. To this end, it is noted that case authority on extension of time in the unfair dismissal context is equally applicable to the general protections context given the relevantly identical terms of section 394(3) and section 366(2) of the Act.
9. In Bianca Mamo an unfair dismissal application was lodged two days out of time and no extension was granted. The Full Bench of the Fair Work Commission articulated principles in relation to assessing delay where an Applicant asserts mental illness as follows:
(a) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves;
(b) 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;
(c) 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; and
(d) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.
10. 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. Applying Bianca Mamo, the Applicant has failed to adduce evidence of an illness, let alone an illness that had a material impact on his ability to lodge an application in the 21 day period after he was dismissed. His description of his capacity in his materials is a mere self-assessment.
11. In Ballarat a general protections claim was lodged 28 days late. The Full Bench overturned a finding that an applicant could not file in time due to depression and anxiety, finding that the evidence demonstrated she was able to act in her own capacity and engage in formal dealings relating to her dismissal including being able to contact Job Watch and WorkSafe, meet with a solicitor, write to her employer and provide a written summary of events.
12. On analogy with Ballarat, the Applicant engaged in formal dealings relating to his dismissal during the limitation period, which are similar to those that were considered in Ballarat:
(a)The Applicant demonstrated capacity and capability at engaging with the Issue Resolution Process regarding the post-employment internal review of his dismissal.11 On 7 January 2022, the Applicant was explicitly told by Warren Wellbeloved of the Respondent that there was a deadline for general protections claims that was independent to the Issue Resolution Process: ‘should you wish to submit an application for an Unfair dismissal or General Protections claim with the Fair Work Commission by the required deadline this is a decision that you will need to make. The appeal of your termination of employment and the Ethics Point cases will continue independently of any legal proceedings.’
(b)On 7 January 2022, the Applicant met with an employment lawyer who confirmed in writing following that meeting, ‘your claim must be filed within 21 days from the date that your dismissal took effect.’ The Applicant did not proceed with that engagement. On 10 January 2022, the employment lawyer reiterated, ‘please note that in order to reserve your interests in [sic] the application must be filed within 21 days from the date of the dismissal, that being 10 January 2022.’
(c)The Applicant has adduced evidence of a screenshot of an electronic document properties profile for document entitled ‘termination and unfair dismissal Stuart Fisher’ that he spent 67 hours editing, that was created on 3 January 2022 and was last saved on 7 January 2022, during the limitation period.
(d)On 10 January 2022, the Applicant received an offer for a new job. An interference can be drawn he applied for this role during the limitation period. His capability in this regard indicates that he had the capability to complete the relatively short and straightforward Form 2 required to initiate an application.”[14]
(Citations omitted)
By reference to the evidence, and cross-examination of the Applicant, I make the following findings:
a) the Applicant was aware of the 21-day time limit to file his Application prior to 10 January 2022. As the Applicant states: “I’m owning all of that”;[15]
b) the Applicant was able to file his ethics complaint, and his internal dismissal review, between 21 December 2021 and 10 January 2022 (i.e. within the 21-day time period);[16]
c) the Applicant was able to attend upon a Solicitor to seek advice within the 21-day time limit; and
d) there is no evidence (before the Commission) that the Applicant was so unwell or otherwise incapacitated that he was unable to file, or was otherwise prevented from filing, his Application within the 21-day time limit.[17]
Having regard to the foregoing findings, even accepting that the Applicant’s delay in the filing of his Application was only one day (indeed, less than two hours), I do not accept that the Applicant’s reasons for delay are credible or acceptable. In my view, this weighs against any finding as to the existence of exceptional circumstances.
Action taken by the Applicant to dispute his dismissal[18]
The Applicant became aware of his dismissal the date that it took effect.
According to the Applicant, his dismissal arose from a year-long investigation by the Respondent into three allegations.[19] During this investigation, the Applicant says that he, on multiple occasions, attempted to (verbally and in writing) dispute the investigation process which he describes as amounting to “multiple accounts of adverse action.”[20] The Applicant says that he attempted to have a meeting to resolve (what he terms) Issue #1 on 3 February 2021, but that this meeting was cancelled on the same day because the Applicant had requested to have a support person for the meeting and was denied this request.[21] It appears that the Applicant says that (what he calls) Issues #2 and #3 arose on or after 3 February 2021. As the Respondent correctly points out, these so-called attempts by the Applicant to dispute his dismissal arose prior to the Applicant’s dismissal taking effect, and are not relevant for the purposes of considerations under s.366(2)(b) of the Act.[22]
The Applicant also highlights that he sought legal advice and assistance on 7 January 2022 to attempt to dispute his dismissal, made an ethics complaint in relation to his dismissal, and sought an internal review of his dismissal. In relation to these matters, the Respondent made the following submissions:
“25. The Applicant advances that he sought legal advice on 7 January 2022. This is a matter that weighs against a finding of exceptional circumstances, because it demonstrates he was on notice of the strict approach taken to the 21 day time limit.
26. Finally, the Applicant relies on an Ethics Point complaint regarding his dismissal, and also his instigation of an internal Issue Resolution Process to review his dismissal. It is accepted an Ethics Point report was lodged. However that report is not properly characterised as an action taken to dispute the dismissal. The role of the Ethics Point investigators is to make findings of breaches of BHP’s Code of Conduct, and not to revoke or review disciplinary outcomes such as dismissal.”[23]
(Citations omitted)
I concur with the Respondent that the Applicant seeking legal advice within the 21-day time period, in the circumstances of this case, does not weigh in favour of a finding as to the existence of exceptional circumstances (rather, it weighs against it). It is also apparent that the ethics complaint was directed towards compliance with the Respondent’s Code of Conduct, not the Applicant’s dismissal. Finally, on the issue of the Applicant lodging an internal review of his dismissal, I note the email from Mr Warren Wellbeloved to the Applicant on 7 January 2022 (2.12pm), which reads:
“Unfortunately, I will not be in a position to respond to your 74 page appeal document by 2.30pm today as I have not yet completed my review.
However, should you wish to submit an application for an Unfair dismissal or General Protections claim with the Fair Work Commission by the required deadline this is a decision that you will need to make.
The appeal of your termination of employment and the Ethics Point cases will continue independently of any legal proceedings.
If my decision is to overturn your dismissal, then you will be able to cancel the Fair Work Commission proceedings.
I aim to get back to you next week with the findings of my review and my decision.”[24]
Taking into account the matters raised by the Applicant in respect of the criterion under s.366(2)(b) of the Act, and the Respondent’s submissions in respect of same, I treat this criterion as a neutral consideration.
Prejudice[25]
The next criterion to be considered is any prejudice to the employer, including any prejudice caused by the delay. The Respondent does not contend that it would suffer any prejudice as a result of the Applicant being granted an extension of time.
The absence of prejudice to a respondent is not uncommon in these types of applications, but neither is such absence a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[26] In this matter, I treat this criterion as a neutral consideration.
Merits[27]
The principles stated in Kyvelos v Champion Socks Pty Ltd[28] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[29]
In Kornicki v Telstra-Network Technology Group,[30] a Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under s.170CE(8) of the (repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[31]
In his Application, the Applicant relevantly lists 11 different types of adverse action that he says have been taken against him, but then says that “I simply cannot tell you with any certainty the reasons this adverse action was initiated against me.” He goes on to state that in his “opinion”, the adverse action taken against him occurred because the Respondent wanted to silence him, because of his mental health status, because of his method of direct communication, because he embarrassed a previous manager, and because he became disgruntled.[32]
I observe that many of the matters that the Applicant alleges to be “adverse action”, are not adverse action within the meaning of Part 3-1 of the Act. Further, many of the reasons that the Applicant alleges that such adverse action has been taken “because of”, are not prohibited reasons within the meaning of Part 3-1 of the Act.
The merits of the Applicant’s case, by reference to his allegations, and the Respondent’s counter assertions,[33] were not fully tested before me (i.e. it is not the role of the Commission to “embark [upon] a detailed consideration of the substantive case” for the purpose of determining whether to grant an extension of time to an applicant to lodge his or her application).[34]
All in all, even taking the Applicant’s case at its highest, given the very limited evidence before me, and the disputed issues between the parties (of fact and law) which were not resolved at the extension of time hearing, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits of the Applicant’s case neither for nor against any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[35]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[36] The Applicant made no submissions as to this criteria.
The Respondent referred me to the cases of Pringle v BHP Iron Ore[37] (Pringle), and Parker v BHP Iron Ore Pty Ltd[38] (Parker) and submitted that the outcomes in each of these cases should also apply to the Applicant in this case as a matter of fairness. Whilst it is apparent that both of the applicant employees in Pringle and Parker filed their applications one day late, and were both denied their requests for an extension of time, I do not accept that either of these cases reflect the same, or similar, characteristics and/or circumstances, to those confronting the Applicant in this case. I therefore treat the criterion under s.366(2)(e) of the Act as a neutral consideration.
Conclusion
I have taken into account each of the criteria set out under s.366(2)(a)-(e) of the Act. In this regard, none of the criteria weigh in favour of the grant of an extension of time, and one criterion weighs against it.
I am not satisfied that there are exceptional circumstances in this case (whether I consider the criteria individually or collectively).[39] As I am not satisfied as to the existence of exceptional circumstances, there is no basis for me to grant an extension of time. I therefore decline to grant an extension of time. Accordingly, the Applicant’s Application in this matter must be dismissed. An Order to this effect will be issued contemporaneously with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr Stuart Fisher (the Applicant) appeared for himself.
Ms Rachel Dawson, Partner, Herbert Smith Freehills, appeared with permission for the Respondent.
[1] Form F8 Application, Attachment 2.
[2] The Applicant did not oppose permission for the Respondent to be legally represented at the hearing. I granted permission for the Respondent to be legally represented in these proceedings pursuant to s.596(2)(a) of the Fair Work Act 2009, having regard to the matter having some complexity, and my view that the matter would be dealt with more efficiently if the Respondent was legally represented. See email from Boyce DP Chambers to parties dated 3 June 2022 regarding permission to be represented by a lawyer; Respondent’s Submissions on representation dated 6 June 2022; Email from Applicant to Boyce DP Chambers dated 7 June 2022 not opposing permission being granted.
[3] Despite the Applicant cross-examining Mr Scully, none of his evidence was seriously put in issue (Transcript, PN114-PN167).
[4] [2011] FWAFB 975.
[5] Ibid.
[6] [2016] FWCFB 5500.
[7] [2018] FWCFB 901.
[8] Ibid, at [17], [19], [38]-[39].
[9] Section 366(2)(a), Fair Work Act 2009.
[10] [2021] FWC 3903.
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty LtdT/A Richmond Oysters[2018] FWCFB 901, at [39].
[12] Ibid, at [40].
[13] Applicant’s submissions (Exhibit A1), pp.3-5.
[14] Respondent’s Submissions, 3 June 2022, at [5]-[12].
[15] Transcript, PN22-PN39.
[16] Transcript, PN66-PN72.
[17] Transcript, PN177, PN186. Also adopting the position of Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group[2021] FWC 3903, at [19]-[25].
[18] Section 366(2)(b), Fair Work Act 2009.
[19] Form F8 Application, Attachments 1 and 2. Applicant’s Materials (Exhibit A1), pp.6-14.
[20] Ibid.
[21] Ibid.
[22] Respondent’s Submissions, 3 June 2022, at [24].
[23] Ibid, at [25]-[26].
[24] Form F8A Response, Attachment 2.
[25] Section 366(2)(c), Fair Work Act 2009.
[26] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[27] Section 366(2)(d), Fair Work Act 2009.
[28] (1995) 67 IR 298.
[29] Ibid, at [299]-[300].
[30] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[31] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[32] Form F8, Item 3.3.
[33] Respondent’s Submissions, 3 June 2022, at [27]-[31].
[34] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[35] Section 366(2)(e), Fair Work Act 2009.
[36] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[37] [2022] FWC 554.
[38] [2022] FWC 545.
[39] Again noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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