Troy Bodle v Mineral Resources Limited T/A Crushing Services International Pty Ltd

[2015] FWC 2446

[2015] FWC 2446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Bodle
v
Mineral Resources Limited T/A Crushing Services International Pty Ltd
(U2015/3058)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Troy Bodle alleged that the termination of his employment by Mineral Resources Limited (Mineral Resources) on 20 January 2015 was unfair.

[2] Mr Bodle’s unfair dismissal application lodged on 13 February 2015 was not made within 21 days of the date of the dismissal.

[3] Mr Bodle gave evidence and was available to be questioned by Mineral Resources. Mineral Resources did not question Mr Bodle’s evidence. No-one from Mineral Resources gave evidence.

[4] 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.

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

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."

[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;

[6] Mr Bodle said that he did not lodge his application within 21 days because he was trying to resolve the matter without making an application. He contacted Mineral Resources but the people he was told to contact were on annual leave and did not respond to his emails. Further, he said that he thought he had 30 days to lodge his application.

[7] On 26 January 2015, Mr Bodle sent an email to Mr Mark Ruttley who signed his termination letter. That email asked for advice on appealing the decision to terminate his employment. He said that if he did not receive advice, he would seek legal counsel on the process of unfair dismissal. He asked for a response by close of business on 30 January 2015. He said if this did not happen he would speak directly to Fair Work Australia.

[8] When asked why he did not lodge his application when he did not get a reply, Mr Bodle said he did not want to lodge an unfair dismissal claim. He wanted to clear his name and sort the matter out without taking this course. Further, he thought he had 30 days to lodge his application.

[9] While I accept that Mineral Resources knew that Mr Bodle disputed the dismissal, there is no evidence that Mineral Resources led Mr Bodle to believe that there was an internal review process which caused him to delay making his application.

[10] Ignorance of the 21 day time limit is not unusual. Mr Bodle was aware that he needed to lodge his application with the Fair Work Commission but did not use the Commission’s website to obtain information on the time limit for lodging applications.

[11] While I understand why Mr Bodle sought to resolve this matter without recourse to litigation, this is not a satisfactory explanation for the whole of the delay. When he did not have a response to his email by 30 January 2015, he still had time to lodge his application within 21 days.

[12] Mr Bodle’s reasons for the delay do not weigh in favour of a finding of exceptional circumstances.

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

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

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

[14] Mr Bodle actively contested his dismissal. He spoke to the person who signed his termination letter. He sought to speak to other company representatives but they were not available. He wrote to his employer and sought an explanation for the reasons he was terminated. This weighs in favour granting an extension of time.

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

[15] Mineral Resources said in its submissions that it would be prejudiced, but called no evidence to support this submission. It submitted that it no longer had an Industrial Relations Manager and if the application had been made in time the Manager could have worked through the issue. It was also submitted that they will need to invest considerable time and resources to defend a claim which has no reasonable prospects of success. No evidence was given about when the Manager left. Given the application was three days late, it is difficult to see how this prejudice would arise. I do not consider any prejudice to Mineral Resources weighs against granting an extension of time.

(e) the merits of the application;

[16] Mr Bodle gave evidence that the reasons he was dismissed were significantly different to the reasons he was stood down. He submitted that the reasons for his dismissal have tarnished his reputation and this has affected his prospects of future employment.

[17] Mineral Resources submitted that the dismissal was fair. However, no evidence was called to support that submission.

[18] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, as I am unable to conclude that Mr Bodle’s claim has no prospects of success, this weighs in favour of granting an extension of time.

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

[19] No relevant submissions were made on this criterion. I consider it a neutral consideration.

Conclusion

[20] I do not consider that there are exceptional circumstances warranting the granting of an extension of time. Mr Bodle has not satisfactorily explained the whole of the delay. This is not a situation where the strength of Mr Bodle’s claim outweighs his lack of an explanation for the delay. Consequently, Mr Bodle’s application for an extension of time is dismissed and his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

T Bodle on his own behalf.

S Dean on behalf of the Respondent.

Hearing details:

2015.

Melbourne and Perth via telephone:

8 April.

 1   [2011] FWAFB 975.

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