Anthony George Johnathan Barbone v Saviour Property Pty Ltd T/A Property Investment Store
[2025] FWC 378
•10 FEBRUARY 2025
| [2025] FWC 378 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anthony George Johnathan Barbone
v
Saviour Property Pty Ltd T/A Property Investment Store
(U2024/13277)
| COMMISSIONER P RYAN | SYDNEY, 10 FEBRUARY 2025 |
Application for an unfair dismissal remedy — application filed out of time — circumstances not exceptional — application dismissed
Introduction
This decision concerns an application by Mr Anthony George Johnathon Barbone (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).
The Application was made on 7 November 2024 and identified two respondent employers: Saviour Property Pty Ltd and Sooley Management Pty Ltd.
On 28 November 2024 and prior to the allocation of this matter to my Chambers, the Applicant submitted an amended Application identifying the employer respondent as Saviour Property Pty Ltd (Respondent).
The Applicant states that his employment with the Respondent was terminated with effect from 16 September 2024.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 7 October 2024. The Application was therefore made 31 days outside the 21-day period.
In its Form F3 Response, the Respondent objected to the Application on the basis that:
· The Application was filed out of time;
· The Applicant has named the wrong respondent and that the correct respondent is Sooley Management Pty Ltd; and
· The Applicant was not an employee of the Respondent or Sooley Management Pty Ltd.
Upon the allocation of the matter to my Chambers, I determined to deal with the extension of time issue first[1] and directed the parties to file materials in support of, or in opposition to, whether an extension of time should be granted.
The matter was heard on 4 February 2025 as a determinative conference. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr R Pearson.
The following materials were admitted into evidence:
· Applicant’s Bundle of Documents in Chief (Exhibit A1);
· Applicant’s Bundle of Documents in Reply (Exhibit A2);
· Letter titled: Notice to Produce Further and Better Particulars, dated 17 September 2024 (Exhibit A3);
· Letter titled: Notice of Default, dated 2 October 2024 (Exhibit A4);
· Letter titled: Final Notice, dated 17 October 2024 (Exhibit A5); and
· Document titled: Contractor Agreement Market Development Manager between Sooley Management Pty Ltd and Atomic Pty Ltd ATF The DLF Trust (Exhibit R1).
The parties relied on documentary material and written submissions which were supplemented by oral submissions during the conference.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3). In determining the extension of time issue, it has been necessary to assume that the Applicant was an employee of the Respondent.[2] However, as set out in the reasons that follow, no findings have been made as to whether the Applicant was an employee of the Respondent, or whether he was dismissed within the meaning of s.386 of the FW Act.
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[3] 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.[4]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[5]
I now consider these matters in the context of the application.
Reason for the delay
The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[6]
Furthermore, the period of the delay with which any explanation is concerned is the period commencing immediately after the time for making an application expires and ending on the day on which the application was ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[7]
The Applicant relies on a medical emergency involving his son, follow-up medical appointments and an interstate relocation as the reason for the delay.
By way of background, the Applicant was working remotely in Indonesia at the time he was advised of the ‘dismissal’ on 16 September 2024.
On 18 September 2024, the Applicant’s young son suffered a medical episode and was hospitalised in Indonesia for approximately one week. On or about 25 September 2024, the Applicant’s son was transported to Tweed Valley Hospital in northern New South Wales on a medical repatriation flight.
On 26 September 2024, the Applicant’s son was discharged from Tweed Valley Hospital. The Applicant’s son was again admitted to Tweed Valley Hospital on 1 October 2024, before being discharged on 2 October 2024.
Thereafter, the Applicant’s son required follow-up medical appointments and, at some point after 2 October 2024, the Applicant’s family relocated from the north coast of New South Wales to Victoria.
The Applicant submitted that the medical emergency involving his son, the numerous follow-up medical appointments, and relocating to Victoria are exceptional circumstances in that they are not regular, routine, or normal. The Applicant submitted that had it not been for these matters, he would have been able to complete research and inform himself that an unfair dismissal application was the best course of action within the 21-day period. The Applicant submitted that an extension of time should be granted.
I accept that the medical emergency involving the Applicant’s son would have been distressing to the Applicant and his family. However, the Applicant’s son was discharged from Tweed Valley Hospital on 2 October 2024, 16 days after the ‘dismissal’ took effect.
Beyond the bare statement that there were numerous follow-up medical appointments and that the Applicant’s family relocated to Victoria following 2 October 2024, there is no evidence as to when those events occurred in the period between 2 October 2024 and the date the Application was made on 7 November 2024. Without more, I do not consider a dependent’s medical appointments or relocation, even interstate, is out of the ordinary, unusual, special, or uncommon.[8]
Furthermore, I note that on 2 October 2024 (16 days after ‘dismissal’ took effect) and 17 October 2024 (31 days after ‘dismissal’ took effect), the Applicant sent detailed correspondence addressed to the Respondent, the Respondent’s legal representative, and Sooley Management Pty Ltd.[9] The Applicant has not satisfactorily explained how he was able to prepare that correspondence during the period of 2 October 2024 to 17 October 2024, but was unable to complete and lodge an application for unfair dismissal. To the extent that the Applicant’s submission regarding research suggests he was unaware of unfair dismissal laws, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[10]
Had the period of delay been much less than 31 days, I would have placed greater weight on the impact of the medical emergency involving the Applicant’s son. However, as the Application was made some 36 days after the Applicant’s son was discharged from hospital, I do not consider those events adequately explain the period of delay.
Accordingly, I am not satisfied that there is an acceptable or reasonable explanation for the delay in making the Application. In the absence of an acceptable or reasonable explanation, this circumstance weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find that the Applicant was aware that the ‘dismissal’ took effect from 16 September 2024. Therefore, the Applicant had the full period of 21 days to make the Application. I consider this to be a neutral consideration.
Action taken to dispute the dismissal
Where an applicant takes action to contest a ‘dismissal’, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[11]
In Hunter Valley Developments Pty Ltd v Cohen[12], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[13]
On 17 September 2024, 2 October 2024, and 17 October 2024, the Applicant sent correspondence to the Respondent, the Respondent’s legal representative, and Sooley Management Pty Ltd, disputing the ‘dismissal’ and stating that unless the matter was resolved, he would initiate all available avenues for compensation.[14] I am satisfied that this correspondence put the Respondent on notice that the ‘dismissal’ was contested.
This factor weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. However, where the merits of the substantive application turn on contested points of fact or law, it is well established that they are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.[15]
As stated earlier, the Respondent objects to the Application on the grounds that the Applicant has named the wrong respondent and that he was not an employee. In evidence before me is a copy of an agreement titled Contractor Agreement Market Development Manager, which records the parties as Sooley Management Pty Ltd and Atomic Pty Ltd ATF The DLF Trust.[16] That document was executed by both parties in accordance with s.127 of the Corporations Act 2001 on 24 August 2022.
During the proceedings the Applicant confirmed that:
· Atomic Pty Ltd ATF The DLF Trust is a corporate trustee, the directors of which are the Applicant and the Applicant’s wife. The Applicant is also the company secretary;
· The DLF Trust is a discretionary trust, the beneficiaries of which are members of the Applicant’s family;
· The Applicant was the Representative (or human hand) of Atomic Pty Ltd ATF The DLF Trust and performed the work pursuant to the Contractor Agreement; and
· Atomic Pty Ltd ATF The DLF Trust submitted invoices for work performed and that payments were made into the bank account of the corporate trustee. Although the invoices are made out to the Property Investment Store, a business name of the Respondent, it is unclear why that occurred and which entity paid those invoices.
Mr Pearson for the Respondent stated that the Respondent and Sooley Management Pty Ltd have a common director, Mr Anthony Soole, but are not otherwise related or associated entities.
Applicant’s submissions
Notwithstanding the parties to the Contractor Agreement, the Applicant contends that he was an employee of the Respondent. In support of this contention, the Applicant submitted that insofar as the Contractor Agreement states it is between Sooley Management Pty Ltd and Atomic Pty Ltd ATF The DLF Trust, it is a sham contract. The Applicant submitted that the true parties to that agreement are the Applicant and the Respondent and that the relationship was one of employment. The Applicant submitted that the terms of employment are as set out in the Contractor Agreement. The Applicant cited the decision of the High Court in Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd[17] (Personnel Contracting) and submitted that how the parties choose to label their relationship has little bearing on the determination of the true character of the relationship.
In relation to his ‘dismissal’, the Applicant contends that he was ‘dismissed’ because he raised concerns regarding the legality of a managed investment scheme and failed to meet unreasonable performance targets.
Respondent’s submissions
The Respondent submitted that the documentary material before the Commission is compelling and that any legal relationship was between Sooley Management Pty Ltd and Atomic Pty Ltd ATF the DLF Trust and that the Application must be dismissed.
In relation to the ‘dismissal’, the Respondent submitted that the Contractor Agreement between Sooley Management Pty Ltd and Atomic Pty Ltd ATF the DLF Trust was terminated because Applicant, as the Contractor’s Representative, breached confidentiality obligations and failed to meet key performance targets.
Merits of the application - Consideration
To bring an application for an unfair dismissal, a person must have been employed, be protected from unfair dismissal in that employment, and be dismissed from that employment at the initiative of the employer.[18] Unless the person is an employee, they cannot be dismissed within the meaning of s.386.[19]
The only basis upon which the Applicant contends that he was employed by the Respondent is that the Contractor Agreement is a sham and that true parties to that contract are the Applicant and the Respondent.
In Deliveroo Australia Pty Ltd v Diego Franco[20] (Deliveroo), a Full Bench of the Commission summarised the ‘well-understood’ meaning of sham as follows:
In Equuscorp Pty Ltd v Glengallan Investments, the High Court said that “sham” refers to “steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences”. The important point is that the requisite intention must be that of both parties to the ostensible contract, usually if not always with the objective of deceiving a third party.[21]
(Emphasis added)
As this matter is at an interlocutory stage, there is no evidence of the intention of the parties. However, if the Contractor Agreement was found to be a sham, I do not see how that would result in a finding that the Respondent was a party to a contract of employment with the Applicant.[22] Similarly, if in any ultimate determination, the corporate veil is pierced and it was found that there was an employer-employee relationship, I do not see how that would result in a finding that the Respondent was a party to that contract in place of Sooley Management Pty Ltd.[23] The more likely outcome in each of these scenarios is a finding that there was an employer-employee relationship between the Applicant and Sooley Management Pty Ltd, which would lead to this Application being dismissed.
Having said that, if the true parties to the contract were found to be the Applicant and the Respondent, then s.15AA of the FW Act is relevant. Section 15AA commenced on 26 August 2024 and applies to relationships entered into before its commencement that remain in existence at commencement such as the arrangement in this matter. Section 15AA overrides the common law as it has been since Personnel Contracting and ZG Operations Australia Pty Ltd v Jamsek[24] in determining whether a relationship is an employment relationship for the purposes of the FW Act. Section 15AA requires the totality of the relationship to be considered and that in doing so, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.
There are terms of the Contractor Agreement that point in different directions and no doubt the parties will lead evidence in any substantive hearing as to how the contract was performed in practice, but at this stage of the proceedings it is not appropriate to embark upon a detailed analysis. However, it is relevant to note one matter relating to the transitional provisions applying to s.15AA. If it was found that the Applicant was not an employee of the Respondent under the common law as existed prior to 26 August 2024, but in applying s.15AA the Applicant was found to be an employee of the Respondent, then the Applicant’s period of service as an employee of the Respondent would be limited to the three-week period between 26 August 2024 and 16 September 2024. In that scenario, the Applicant would not have completed a period of employment of at least the minimum employment period and therefore, would not be a person protected from unfair dismissal.
Having made those observations and noting the factual and legal matters have not been fully examined or agitated at this stage of the proceedings, I consider this factor to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).
The Application is dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
A. Barbone, the Applicant.
R. Pearson, solicitor for the Respondent
Hearing details:
Sydney (via Microsoft Teams video-link):
2025.
4 February.
[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[2022] FWCFB 234 (Herc) at [10]-[17].
[2] Ibid at [17].
[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [13].
[4] Ibid.
[5] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[7] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] (per Watson VP and Smith C); Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [24].
[8] Nulty at [13].
[9] Exhibit A4 and Exhibit A5.
[10] Nulty at [14].
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[12] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.
[13] Ibid at [19].
[14] Exhibit A3, Exhibit A4, and Exhibit A5.
[15] Nulty at [36]; see also GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB at [55] and authorities cited therein.
[16] Exhibit R1.
[17] [2022] HCA 1.
[18] See ss.382, 385, and 386 of the FW Act.
[19] See, for example, Redei Enterprises Pty Ltd & Anor v Maxwell Coulthard[2024] FWCFB 349 at [18]-[25].
[20] [2022] FWCFB 156.
[21] Deliveroo at [55].
[22] Personnel Contracting at [54] (per Keiffel CJ, Keane and Edelman JJ).
[23] See Roy Morgan Research Pty Ltd v Commissioner for Taxation [2010] FCAFC 52 at [43]; ACE Insurance Ltd v Trifunovski [2013] FCAFC 3 at [150]-[153].
[24] [2022] HCA 2.
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