Bellingham v Downer EDI Mining Blasting Services Pty Ltd [2016] FWC 119 (7 January 2016) [2016] FWC 119 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Matthew Bellingham v Downer EDI Mining Blasting Services Pty Ltd (U2015/15301) DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 JANUARY 2016 Application for relief from unfair dismissal. [1] Mr Matthew Bellingham alleged that the termination of his employment by Downer EDI Mining Blasting Services Pty Ltd on 20 October 2015 was unfair. [2] His unfair dismissal application lodged on 30 November 2015 was not made within 21 days of the date of the dismissal. [3] 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. [4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said: “[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; [5] On 12 October 2015, Mr Bellingham was advised that he was required to relocate from Boulder, Western Australia to Perth, Western Australia. Mr Bellingham was required to advise if he agreed to this relocation by close of business on 14 October 2015. On 14 October 2015, Mr Bellingham asked for, and was granted, an extension of time to consider the proposal. On 20 October 2015, he was asked if he had made a decision and he advised that he was not able to decide in such a short period of time. As a consequence his employment was terminated immediately. On 30 October 2015, Mr Bellingham received his final pay advice and he queried his payment but was not satisfied with the response. On 30 November 2015, Mr Bellingham sought advice and lodged his application that day. [6] He said the reason for the delay was that he was waiting for a response to his inquiries and that he had to wait to make an appointment to receive advice as there is no Fair Work Ombudsman and limited lawyers and only one industrial relations consultant in his area. Mr Bellingham said he looked up information on the internet about his entitlements but not about unfair dismissal. He said he rang the Fair Work Ombudsman but could not get through. [7] I am not satisfied that a dispute about whether Mr Bellingham was paid the correct amount on termination provides a reasonable explanation for the delay in lodging an unfair dismissal claim. [8] Mr Bellingham’s dispute about his entitlements is independent of any claim that he was unfairly dismissed. I am further not satisfied that the lack of advisors in his region provides a reasonable explanation for the delay. Mr Bellingham lives within a short distance of Kalgoorlie which is a large regional centre in Western Australia. It is not unusual for dismissed employees, even in capital cities, to be unable to get an appointment with an advisor within the 21 days provided for applicants to lodge their application. Further there are other sources of information about unfair dismissal rights including the Commission’s website. Further a Google search of the term ‘unfair dismissal’ provides a list of advertisements from advisors, some of which offer a free consultation. Mr Bellingham did not take any steps to inform himself about his unfair dismissal rights prior to 30 November 2015. [9] I am not satisfied that Mr Bellingham has provided a reasonable explanation for the whole of the delay. [10] This weighs against a finding that there are exceptional circumstances. (b) whether the person first became aware of the dismissal after it had taken effect; [11] Mr Bellingham was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances. (c) any action taken by the person to dispute the dismissal; [12] Mr Bellingham took no action to dispute the dismissal. This weighs against a finding that there are exceptional circumstances. (d) prejudice to the employer (including prejudice caused by the delay); [13] Mr Bellingham submitted that there would be no prejudice to Downer as he had attempted to contact them about his concerns about his payout. Downer submitted that it would be prejudiced because it will need to expend time and resources defending the claim. I accept this submission but I do not consider the prejudice to Downer is sufficient to weigh against a finding that there are exceptional circumstances. I consider this criterion to be neutral. (e) the merits of the application; [14] At the hearing Mr Bellingham gave evidence. Given his admissions I asked Downer if it intended calling its witnesses. I asked the parties if they agreed that the following paragraph accurately reflected their respective positions and if they accepted that I would not be able to resolve these differences at this hearing. Both parties agreed. As a result Downer did not call any evidence. [15] Downer submitted that it was entitled to terminate Mr Bellingham’s employment because he refused a reasonable and lawful direction to relocate to Perth. It was Downer’s evidence that since June 2015 it had been paying for Mr Bellingham to travel to Perth and providing for his travel to sites. It submitted that this meant that Mr Bellingham was unavailable on short notice to attend emergency breakdowns. Mr Bellingham submitted that he was prepared to travel to Perth and fulfill all the obligations of his role. He submitted that what had occurred was that his position in Boulder was redundant and he was entitled to redundancy pay. Mr Bellingham submitted that there was inadequate consultation with him about the redeployment. [16] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral. (f) fairness as between the person and other persons in a similar position. [17] Mr Bellingham made no submissions on this criterion. Downer submitted that to grant Mr Bellingham an extension of time would be inconsistent with the majority of extension of time decisions and it would be at odds with the requirement that time limits should be complied with. I consider that this criterion is neutral. I do not accept that this criterion is concerned with the issues raised by Downer. Each application must be dealt with on its merits and this criterion is applicable if there are others in a similar position. I do not consider that the expression “other persons in a similar position” refers to dismissed employees who have not filed within the 21 day time period. Conclusion [18] I am not satisfied that there are exceptional circumstances. Mr Bellingham has not provided a reasonable explanation for the delay. None of the other criteria weigh in favour of a finding that there are exceptional circumstances. Accordingly Mr Bellingham’s application for an extension of time is dismissed and therefore his application for an unfair dismissal remedy is dismissed. DEPUTY PRESIDENT Appearances : M. Bellingham on his own behalf. J. Goos for the Respondent. Hearing details: 2016. Melbourne, Perth and Brisbane by telephone link: 6 January. 1 [2011] FWAFB 975 Printed by authority of the Commonwealth Government Printer <Price code C, PR575900>