1 Fair Work Act 2009 s.365—General protections Christopher Ingate v Pilbara Iron Company (Services) Pty Ltd (C2023/6706) COMMISSIONER SCHNEIDER PERTH, 12 FEBRUARY 2024 Application to deal with contraventions involving dismissal [1] Mr Christopher Ingate (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Pilbara Iron Company (Services) Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act. [2] The Respondent has objected to the application on the ground that the application is out of time. [3] Before dealing with the dispute, I must be satisfied that the application was not made out of time. Dismissal date [4] Section 366(1) of the 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. [5] As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”1 [6] The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”2 [7] The parties do not dispute that the Applicant tendered his resignation on 5 September 2023. A copy of the Applicant’s resignation has been provided to the Commission. The effective end date asserted in the Applicant’s resignation is 5 October 2023. [2024] FWC 379 DECISION [2024] FWC 379 2 [8] The Applicant submits that the conduct of his Superintendent left him with no alternative but to resign from his employment with the Respondent. [9] At the Hearing, the parties agreed that the Applicant’s final day of employment with the Respondent was 5 October 2023. [10] As a result, I am satisfied that the Applicant’s final day of employment is 5 October 2023. [11] It is a matter of record that the application was made on 30 October 2023. [12] As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”3 [13] As I found above, the dismissal took effect on 5 October 2023. The final day of the 21- day period was therefore 26 October 2023 and ended at midnight on that day. The application was made on 30 October 2023. The application was made four (4) days late. [14] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made. Relevant law – Extension of time [15] Section 366(2) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. [16] The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised, taking into account: (a) the reason for the delay; and (b) any action taken by the Applicant 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 Applicant and other persons in a similar position. [17] Each of the above matters must be considered in assessing whether there are exceptional circumstances.4 [18] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.5 [2024] FWC 379 3 [19] 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.6 [20] 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 [21] 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.8 [22] The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.9 [23] I set out my consideration of each matter below. Submissions and Evidence – Extension of time What are reasons for the delay? [24] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 26 October 2023. The delay is the period commencing immediately after that time until 30 October 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.10 [25] The Applicant submits the following reasons as contributing to the delay: • After resigning from his employment with the Respondent, the Applicant was considering several different avenues through which to agitate his issues with the Respondent. The Applicant outlined that he was considering options not limited to the Fair Work Commission, including the Human Rights Commission and the media. Accordingly, the Applicant submits that this decision-making process resulted in the delayed application with the Commission. • The Applicant was seeking that the Respondent engage an independent third party to investigate his complaint. The Applicant submits that the delayed response from the Respondent in confirming if a third party would investigate his complaint contributed to the delay in filing the application. • The Applicant submits that he had been employed by the Respondent for over twelve (12) years and that the decision to resign from the Respondent had taken a toll on his mental health. The Applicant submits that this impacted on his ability to lodge within the 21-day period. • The Applicant was also completing a pre-employment medical assessment for his new employment in a remote location which further impacted his ability to file his application with the Commission. [2024] FWC 379 4 [26] In relation to the reason for the delay, the Respondent made the following submissions: • The Respondent submits that the status of the Applicant’s MyVoice complaint or any other internal review process had no impact on the ability of the Applicant to file his claim with the Commission. The Respondent submits that there was no conduct of the Respondent which contributed towards the Applicant being delayed in filing his claim with the Commission. • The Respondent submits that the Applicant deciding which course of action to take in relation to agitating his workplace complaint is not an exceptional circumstance. • The Respondent submits that the Commission has previously found that difficulties in obtaining legal advice or ignorance of the time limit are not exceptional circumstances for the purposes of the Act. • The Respondent acknowledged that mental illness may be considered an exceptional circumstance, where the illness is so significant that it effects the Applicant’s mental capacity to prepare and file an application. • The Respondent submits that the Applicant has not provided a credible explanation for the entire delay in the lodgement. The Respondent also submits that either individually or combined the Applicant’s reasons do not give rise to exceptional circumstances as required by the Act. [27] Having regard to the materials before me, I am satisfied that some, but not all, of the reasons relied upon by the Applicant would understandably contribute to delay. Notably, the Applicant’s mental health issues, especially noting his tenure with the Respondent, and likelihood that such a change after that length of time would exacerbate the expected negative reaction one has to ending employment. [28] However, as discussed above, the reason is not the only criteria to be considered and must be weighed against the following to assess whether there are exceptional circumstances. What action was taken by the Applicant to dispute the dismissal? [29] The Applicant was not dismissed by the Respondent, rather the Applicant resigned from his employment with the Respondent. [30] The parties agreed that the Applicant had taken steps to raise his workplace complaints with the Respondent. [31] The Applicant noted the following regarding the actions taken to dispute the dismissal: • The Applicant made an initial request with the Respondent, on 21 February 2023, in relation to a fair treatment complaint. [2024] FWC 379 5 • On 8 August 2023, there was an outcome discussion held between the Applicant and his Superintendent. • On 5 September 2023, following further discussions with his Superintendent, the Applicant resigned from employment. • The Applicant submitted a MyVoice complaint with the Respondent on 6 September 2023. • Between the 14 September and 28 September, the Applicant had discussions with various representatives of the Respondent in relation to his complaint. In summary, the Applicant was seeking an independent third party to investigate his issues, whilst the Respondent was of the position that the allegations being put forward could be investigated by internal HR staff. • The Applicant was not satisfied with the approach determined by the Respondent and ultimately decided not to continue with the internal HR process. [32] The Respondent submits that, when it took action to commence an internal HR process, the Applicant advised the Respondent that he no longer wished for the investigation to be undertaken. [33] The Respondent provided a copy of a text message exchange between the Applicant and the Respondent’s Human Resources representative, which read as follows: “Hey Chris, this is Jess Vry from Rio Tinto HR reaching out to arrange a time to connect and discuss your MyVoice Submission. I don’t work Fridays but am available to call anytime Monday afternoon or anytime Tuesday, please let me know when suits you. Kind regards, Jess.” “Jess, thanks for reaching out, i have no interest in discussing my voice further with Rio Tinto. My last shift is the 29th night shift. After this date I would prefer no further contact from anyone connected with rio tinto unless it concerns my final paycheck lol regards Chris” “Thanks for your response Chris, all the best. If you change your mind please feel free to reach out. Kind regards Jess.” [34] It is evident from the text message exchange between the Applicant and the Respondent’s representative that the Applicant made it clear that he no longer wished to continue with his internal complaint on 28 September 2023. [35] The Applicant filed his application with the Commission on 30 October 2023, more than 1 month after advising the Respondent that he did not wish to continue with the internal process. [36] Accordingly, I am not satisfied that the disagreement between the Applicant and the Respondent over the nature of the investigation to be completed would reasonably contribute to such a lengthy delay in filing. This was not a situation whereby the Applicant was awaiting [2024] FWC 379 6 the outcome or finding of an internal review into his dismissal and, whilst doing so, the 21-day filing period passed. What is the prejudice to the employer (including prejudice caused by the delay)? [37] The Respondent submits that it would suffer prejudice if an extension of time were granted. [38] Specifically, the Respondent submits that, if an extension of time were granted, it would suffer the following prejudice: • The time and cost of having to defend the matter should the Commission grant an extension of time. [39] In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. What are the merits of the application? [40] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials. [41] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.11 [42] It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. [43] In the circumstances, I find that it is not possible to make an assessment of the merits of the application. Fairness as between the Applicant and other persons in a similar position [44] 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? [45] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above. [46] 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 [2024] FWC 379 7 unprecedented, nor even very rare.12 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.13 [47] There is no doubt that the Applicant was aggrieved and upset with the Respondent, so much so that the Applicant decided to resign his employment 12 years of service. I have no doubt that this was not an easy decision for the Applicant to make. [48] I have found that some of the reasons put forth as contributing to the delay, and some of the action taken after the dispute, could understandably contribute to lateness and weigh in favor of a finding of exceptional circumstances. [49] However, upon assessment of all criteria and the circumstances of this matter, I am not satisfied there are exceptional circumstances giving rise to an extension of time. My reasons for this conclusion follow. [50] I understand that the Applicant was considering his options to escalate his dissatisfaction with his former employer and was weighing up his choices regarding the best type of action to pursue. [51] Following the end of an employment relationship, there are several causes of action an aggrieved ex-employee may seek to pursue. Such considerations are a normal part of the process, and, in the circumstances of this matter, I am not satisfied that this decision-making process is an excusable reason for delay nor lends itself to a finding of exceptional circumstances. [52] I note the Applicant’s submission, that he was not aware that the Commission had a 21- day filing period. However, as the Commission has found previously, ignorance of the 21-day filing deadline does not give rise to exceptional circumstances and, in this matter, I see nothing to depart from such conclusion. [53] I accept that the Applicant’s mental health was impacted by his decision to resign and that such impact, following 12 years of employment, would be noteworthy. I am satisfied that such decline in mental state could contribute to some level of difficulty in preparing an application. [54] However, on assessment of the materials before the Commission, I am not satisfied that the Applicant’s decline in mental health was of such an extent that it would lead to such late filing nor in favor of exceptional circumstances. [55] There is no medical evidence before the Commission that would suggest the nature or severity of any decline in the Applicant’s health would hinder the ability to file. [56] The Applicant, in his materials, confirmed that during the period following his resignation he was seeking alternative employment and completing a pre-employment medical assessment for a new employer. [2024] FWC 379 8 [57] Although it is understandable one would wish to prioritize securing new employment, the fact that the Applicant was not hindered from engaging in such pursuits does not support the position that he had declined to such a point that he was unable to prepare this application. [58] As noted above, the Applicant decided to not continue with the internal investigation process over a month before he finally filed this application. [59] Therefore, I am not satisfied that any conduct of the Respondent unreasonably delayed the Applicant in making this application. [60] The fact that the Applicant had attempted to address the issues leading to his resignation reflects that it was open to him, prior to and during the period of delay, to undertake the task of completing this application if it was indeed the desired course of action. [61] I also note that, in this situation, the Applicant, through his resignation, determined the final date of employment. Although I do not draw any conclusion on the nature of the resignation as it may relate to the jurisdictional question of whether there was a dismissal for the purposes of the Act, one can conclude, from the materials, that the Applicant’s decision to resign was not easy and involved careful consideration. [62] It follows that, in the context of this matter, the Applicant had the benefit of preparing himself for the potential action he would opt to pursue while coming to the decision to resign well before the end of the 21-day time period and, obviously, benefit of the full 21-day period following his resignation. [63] Having regard to all of the matters listed at section 366(2) of the Act, I am not satisfied that there are exceptional circumstances. Conclusion [64] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. [65] The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order to that effect has been issued.14 COMMISSIONER Appearances: [2024] FWC 379 9 C Ingate, Applicant. J Illich, Respondent. Hearing details: 2024. Perth (by video): January 31. Printed by authority of the Commonwealth Government Printer <PR771235> 1 [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 [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; [2015] FWCFB 1877. 3 [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. 4 [2018] FWCFB 901, [39]. 5 [2011] FWAFB 975, at [13]. 6 [2011] FWAFB 975, at [13]. 7 [2018] FWCFB 901, [39]. 8 [2018] FWCFB 901, [40]. 9 [2018] FWCFB 901, [17]. 10 [2015] FWCFB 287, [12] (Watson VP and Smith DP). 11 [2011] FWAFB 975, [36]. 12 [2011] FWAFB 975, [13]. 13 [2011] FWAFB 975, [13]. 14 [PR771236].