Aaron Chapman v BHP Group Limited [2024] FWC 2771

1 Fair Work Act 2009 s.394 – Application for unfair dismissal remedy Aaron Chapman v BHP Group Limited (U2024/9493) COMMISSIONER SCHNEIDER PERTH, 4 OCTOBER 2024 Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed [1] Mr Aaron Chapman (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with BHP Group Limited (Respondent). [2] The Respondent has objected to the application on the ground that the application is out of time. [3] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time. When must an application for an order granting a remedy be made? [4] Section 394(2) of the FW Act provides that such an application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the Commission allows. The hearing & submissions [5] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. [6] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act). [2024] FWC 2771 DECISION -- 1 of 7 -- 2 [7] The Applicant was directed to file submissions on 18 September 2024, however failed to do so. The Applicant was provided a final opportunity to file submissions by 23 September 2024. The Applicant filed limited submissions which did not include any substantive evidence to support his extension of time request. [8] The Respondent filed submissions in the Commission on 1 October 2024. The Respondent included a witness statement from Ms Breanna Cameron (Superintendent Production Underground), I have accepted the evidence of Ms Cameron as per her statement. [9] The hearing was listed for 1pm (AWST) on 3 October 2024. The Applicant failed to attend the hearing, as a consequence of the Applicant’s failure to attend the hearing as directed, I am determining the matter of the material before the Commission. When did the dismissal take effect? [10] The parties are in dispute about when the dismissal took effect. Evidence [11] It was the evidence of Ms Cameron that the Applicant was issued with a notice of termination on 23 July 2024 via email. Ms Cameron confirms that there was a minor typographical error in the termination letter which referenced the 20 July 2020. Ms Cameron explained that this occurred by the Respondent was unable to contact the Applicant on 20 July 2024 and this date was not updated on the letter. Findings [12] I find that the Respondent notified the Applicant by email on 23 July 2024 that his employment had been terminated. The email was sent to an email address to which the Applicant conversed with the Respondent prior to his termination. [13] Having regard to the matters I have referred to above, I find that the dismissal took effect on 23 July 2024. When was the application made? [14] It is not in dispute, and I so find, that the application was made on 15 August 2024. Was the application made within 21 days after the dismissal took effect? [15] As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”1 [16] As I found above, the dismissal took effect on 23 July 2024. The final day of the 21 day period was therefore 13 August 2024 and ended at midnight on that day. As I found above, the application was made on 15 August 2024. -- 2 of 7 -- 3 [17] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. Was the application made within such further period as the Commission allows? [18] Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the Applicant first became aware of the dismissal after it had taken effect; and (c) any action taken by the Applicant 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 Applicant and other persons in a similar position. [19] Each of the above matters must be considered in assessing whether there are exceptional circumstances.2 [20] I set out my consideration of each matter below. Reason for the delay [21] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 August 2024. The delay is the period commencing immediately after that time until 15 August 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.3 [22] 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.4 [23] 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.5 Submissions [24] The Applicant submitted that the delay was for the following reasons: • The Applicant was suffering from mental health challenges. -- 3 of 7 -- 4 • The Applicant was the primary care giver for his partner who had recently undergone surgery. • The confusion over the termination date of the Applicant’s employment. [25] Despite being provided multiple opportunities to do so the Applicant did not file any evidence in support of the above submissions. [26] In relation to the reason for the delay, the Respondent submitted that the Applicant had previously provided generic medical certificates with no detail for his absences from work from 7 April till 14 June 2024. [27] The Respondent submitted that the Applicant had not provided any substantive evidence which outlines how the Applicant was incapacitated and unable to file his application within the required period. Findings [28] Having regard to the above, I find that the reasons for the delay are understandable. Did the Applicant first become aware of the dismissal after it had taken effect? [29] As I have found above, the Applicant was notified of his dismissal on 23 July 2024 via email from Ms Cameron. As I have found above this was the date of dismissal, therefore the Applicant had the benefit of the full 21 day period to file his application. What action was taken by the Applicant to dispute the dismissal? [30] It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 15 August 2024. What is the prejudice to the employer (including prejudice caused by the delay)? [31] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. What are the merits of the application? [32] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials. Submissions [33] The Applicant did not file any substantive submissions in relation to the merits of the application. -- 4 of 7 -- 5 [34] The Respondent submits that the Commission should have particular regard to the following matters in its consideration of the merits of the application: • The Applicant was employed by the Respondent as a Loader Operator at its Leinster Underground Nickel Mine located in Western Australia. • The Applicant was required to comply with the policies and procedures in force at the Mine during his employment. • The Respondent held several concerns regarding the Applicant’s performance, including, among other things, the Applicant’s conduct in the workplace and attendance. This was managed by way of a Performance Improvement Plan (PIP). • Following two unsatisfactory performance review meetings, on 13 March 2024, the Applicant was issued a Final Written Warning for failing to demonstrate the required improvement in performance. • From 7 April 2024, the Applicant remained absent from the workplace and continued to submit generic medical certificates up until the date of his dismissal on 23 July 2024. • During this time, the Respondent had made several unsuccessful attempts to engage with the Applicant to discuss his intentions to return to work and comply with his employment obligations. • On 22 June 2024, the Applicant was issued a Letter of Expectations requiring him to: i. contact the Respondent by 24 June 2024, ii. attend a Fitness for Work Assessment that the Respondent had arranged for him on 1 July 2024, and iii. remain in fortnightly contact with the Respondent. • The Applicant failed to comply with the above directions and did not provide a reasonable explanation for failing to do so. • The Applicant’s conduct was found in breach of the Respondent’s Code of Conduct and Charter Values. • The Respondent was also provided with procedural fairness during the process leading to the dismissal. • In the circumstances, it is open to the Commission to form a preliminary view that the Application has no reasonable, or very limited, prospects of success. [35] Having considered the submissions from the Respondent in relation to the merits of the Application, I am satisfied that the Respondent followed a procedurally fair process and from the submissions provided there was a valid reason for the termination of the Applicant’s employment. Findings -- 5 of 7 -- 6 [36] In all the circumstances, I find that the merits of the application are weak. Fairness as between the Applicant and other persons in a similar position [37] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [38] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding: (a) the reasons for the delay, being understandable however not exceptional; (b) the Applicant being aware of the dismissal at the time that it took effect]; (c) absence of any action being taken by the Applicant to dispute the dismissal prior to making the application; (d) the absence of any prejudice to the employer; (e) [the merits of the application being weak; and (f) no issue of fairness arising as between the Applicant and other persons in a similar position. [39] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.6 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 can be considered exceptional.7 [40] Having considered the submissions and evidence of the parties, I am not satisfied that there are exceptional circumstances as required by the Act that warrant an extension of time being granted. [41] The Applicant had the opportunity to provide evidence to support his reasons for a delay in filing the application, however the Applicant has not provided substantive evidence that supports he or his partner were so incapacitated that he was unable to file his application within the required 21-day time period. [42] If the Applicant had provided substantive evidence this would have assisted the Commission in better understanding if there were exceptional circumstances such as the Applicant or his partner being incapacitated for an extended period following the termination of this employment, however absent any evidence there are no grounds for the Commission to find there are exceptional circumstances that warrant an extension of time. -- 6 of 7 -- 7 [43] I accept that the letter of termination may have provided some confusion to the Applicant, however the Applicant still had ample opportunity to file his application with the Commission prior to the 21-day time period ending. [44] Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. Conclusion [45] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.8 COMMISSIONER Appearances: M Power of BHP Group Limited for the Respondent. Hearing details: 2024. Perth (by video). October 3. Printed by authority of the Commonwealth Government Printer 1 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 2 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 3 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40]. 6 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 7 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 8 PR779958. -- 7 of 7 --