Brett Summers v Des E Resources Pty Ltd

[2019] FWC 4846

[2019] FWC 4846

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Brett Summers
v
Des E Resources Pty Ltd
(C2019/1907)

COMMISSIONER YILMAZ MELBOURNE, 11 JULY 2019

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

[1] On 25 March 2019, Mr Brett Summers (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant alleges he was employed by Des E Resources Pty Ltd (the Respondent) in March 2018, and terminated on 13 February 2019. The Respondent contends that it was never the employer, and that it engaged the Applicant through labour hire firm, Summit Workforce Pty Ltd.

[2] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 19 days out of time.

Applicant’s submissions

[3] The Applicant was engaged on various projects by the Respondent, the last being at a West Melbourne site, where the Respondent secured a contract to install new infrastructure for plant. It is not contested that one of his roles was the safety of workers. However, it is alleged by the Applicant that after the head contractor removed an asbestos roof, the Applicant found remaining pieces of asbestos and reported his concerns. It is submitted that the reporting of the asbestos to the three contractors on the site (including the Respondent) strained the relationship with the Respondent.

[4] In uncontested evidence at the completion of the project, it was understood that the Applicant would not work for Des E Resources until a new project commences, one was expected to commence in February 2019.

[5] The Applicant submits that on 13 February 2019 it was confirmed by the Respondent that the asbestos complaint by the Applicant cost the Respondent the contract anticipated to commence in February 2019. Text messages of 13 February 2019, confirm that the Applicant was informed that the Respondent never wanted to see him again.

[6] In his application, the Applicant contends that the contraventions of the Act by the Respondent relates to:

•  s.340 on the basis that the Respondent has taken adverse action by excluding the Applicant from future work because he spoke up about safety concerns. 1

Respondent’s submissions

[7] The Respondent submits that the Applicant was never employed directly but engaged through a labour hire firm. It is submitted that the Applicant’s engagement ceased following the conclusion of the project on 15 December 2018.

[8] The Respondent submits that no further projects have been secured and the Respondent is also out of work.

[9] In regards to the allegation that the Applicant raised a serious asbestos safety issue, the Respondent provided a copy of the independent asbestos clearance certificate, which confirmed that the site had been cleared of visible asbestos. The certificate was issued on 11 December 2018. 2 It is also contended that the Respondent informed workers that should they not be happy to work outside the containment zone, that they were not required to do so.

[10] In addition, the Respondent provided documentation that confirmed that the Applicant was offered the role on 5 October 2018 to commence on 13 October 2018 with planning and organisation at the Summit Melbourne office. This document states that the Applicant is to confirm acceptance of the offer so that Summit Workforce can finalise and engage the correct pay structure. The Respondent also provided invoices paid to Summit Workforce Pty Ltd for the services of the Applicant.

Consideration

[11] On 13 June 2019, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application. I also conducted a telephone conference on 1 May 2019, to deal with procedural matters. Following the conference, the Applicant elected to proceed with the extension of time hearing and not apply to amend his application to a s.372 application.

[12] General protections applications involving dismissal must be made within 21 days.

[13] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[14] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 3 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 4

[15] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[16] The Applicant contends that on 4 March 2019, he intended to file online the Form F8, although he was “unwittingly led to instead filling out the F2 form”. 5

[17] It is submitted by the Applicant that he was informed by the Fair Work Commission of his error, he then obtained legal advice and filed a new claim. The Applicant made no submissions concerning the date of these events, although the Commission file shows that contact was made by the Commission on 14 March 2019 and both the new claim and a notice of discontinuance of the unfair dismissal claim was filed on 25 March 2019.

[18] In considering the reason for the delay I am required to consider all of the relevant matters.

[19] The Applicant provides no further explanation for the 19 day delay. No reasons were provided that could be described as exceptional circumstances. I do not consider the submissions weigh in the Applicant’s favour.

Steps taken to dispute the termination

[20] The Applicant states that no action was taken to dispute his termination because he was told via text message not to contact the Respondent again.

[21] Further, the Applicant did not provide any explanation for not contacting Summit Workforce Pty Ltd, that he had he had a grievance concerning s.340, other than statements that he had a relationship with the Respondent. Statements from the Applicant were conflicting concerning whether he was a direct employee or engaged through labour hire. However, based on the evidence submitted, it is most likely that the Applicant was a direct employee of the labour hire firm.

[22] I consider the lack of action by the Applicant to dispute the “termination” weighs against granting an extension for filing of the application.

Prejudice to the employer

[23] The Applicant contends there is no prejudice to the employer (in this case the Respondent). I disagree. The Respondent is out of work and has been for some time. Despite (on the evidence) that the Respondent is likely not the employer, the Respondent has already spent resources responding to this matter, firstly after receiving the unfair dismissal claim, then in this mater, including presenting for hearing when the Applicant failed to show.

[24] The Applicant refuses to accept the evidence of the Respondent that it is also out of work. The Applicant’s determination to bring the Respondent to task is likely in all events to lead to nothing. The Respondent has no work to provide and the pursuit of compensation may be difficult.

Merits of the application

[25] While the Applicant asserts his loss of employment is due to exercising a workplace right, the Applicant provided minimal materials to support a merit argument relating to the contravention.

[26] The Respondent on the other hand provided materials confirming the Applicant’s responsibility for the safety of the team, however, text messages suggest that the action taken by the Applicant when he confronted the contractors on site resulted in the Respondent’s loss of the contract. The Respondent also confirms that no further contracts have been secured to enable the recruitment of the Applicant or any other staff either directly or via a labour hire firm. The Respondent’s Directors also confirm they themselves have no paid work.

[27] Consequently, I cannot conclude on the prospect of success of a contravention matter pursuant to s. 340 of the Act.

Fairness between the person and other persons in a like position

[28] The Applicant submits that this consideration is irrelevant. Based on the limited material, I consider this to be a neutral factor in the present matter.

Conclusion

[29] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar. The reasons given for the delay and the limited steps taken to challenge the termination weigh heavily against the Applicant. I do find prejudice to the Respondent. The merits of the claim and the consideration of fairness against the Applicant, on balance, is not persuasive and the Applicant has not substantiated exceptional circumstances for an extension of time.

[30] I am not satisfied that the Applicant has met the requirement to substantiate exceptional circumstances warranting an extension of time. The application is therefore dismissed. An order 6 to that effect will be published separately.

COMMISSIONER

Appearances:

B Summers on his own behalf

J Matete and K Matete from the Respondent

Hearing details:

2019.

Melbourne (by telephone):

June 13.

Printed by authority of the Commonwealth Government Printer

<PR710244>

 1   Applicant’s Form F8 at 3.3 and oral submissions

 2   Attachment to Respondent’s response email dated 29 March 2019

 3   [2011] FWAFB 975

 4   Ibid at [13]

 5   Applicant’s Outline of argument: Extension of time at question 1d

 6   PR710245