Christopher Paul James Marshall v Telecaster Pty Ltd as Trustee for D Hayhurst Family Trust and Hayhurst Nominees Pty Ltd as the Trustee for JH Family Trust
[2022] FWC 2469
•15 SEPTEMBER 2022
| [2022] FWC 2469 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Christopher Paul James Marshall
v
Telecaster Pty Ltd as Trustee for D Hayhurst Family Trust and Hayhurst Nominees Pty Ltd as the Trustee for JH Family Trust
(C2022/3030)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 15 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal–jurisdictional objection - no dismissal – extension of time – termination at the initiative of the employer – extension of time granted
On 18 May 2022 Mr Christopher Paul James Marshall (Applicant) lodged an application pursuant to section 365 of the Fair Work Act 2009 (Act) (Application), for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal from his employment with Telecaster Pty Ltd as Trustee for D Hayhurst Family Trust and Hayhurst Nominees Pty Ltd as the Trustee for JH Family Trust (Respondent).
The Respondent objected to the Application on the basis that Mr Marshall had not been dismissed (No Dismissal Objection) and, if he had been dismissed, he had filed the Application outside the 21-day statutory time frame (Extension of Time) (collectively, Jurisdictional Objections).
On 29 August 2022 the Jurisdictional Objections were the subject of a determinative conference before me. Mr Marshall appeared on his own behalf and Mr David Hayhurst appeared on behalf of the Respondent.
Mr Marshall submits that his employment ended on 20 April 2022.[1] The GP Application was lodged on 18 May 2022. The period of 21 days ended at midnight on 11 May 2022 and the GP Application was therefore lodged 7 days out of time. Mr Marshall seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent company opposes the grant of an extension of time.[2]
No Dismissal Objection
Part 3-1 of the Act deals with general workplace protections. Subdivision A of Part 3-1 deals with contraventions involving dismissal. Section 365 is contained within Subdivision A of the Part 3-1 and provides that if a person has been dismissed and alleges that the dismissal was in contravention of Part 3-1, an application may be made to the Commission for the Commission to deal with that dispute.
Section 386(1) of the Act, relevantly, defines when a person has been dismissed as follows:
“Section 386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
…”
Observations
I first make some general observations as to the witnesses and evidence given in this matter. I found Mr Marshall to be direct, credible and candid. Conversely, I found Mr Hayhurst’s evidence to be vague, lacking in detail and prone to generalisations. Further, his evidence on a number of matters, such as whether communications occurred between Mr Marshall and he in the period 4 April to 18 April 2022, was clearly inconsistent with and unsupported by the documentation before the Commission. I did not find him a compelling witness.
Background and findings of fact
Employment- was Marshall a casual employee?
The Respondent is a small family business located in Western Australia, which manufactures and services industrial wash bays. The Respondent is the business of Mr David Hayhurst (Mr Hayhurst) and his brother, Mr Joseph Hayhurst, and trades under the name of PSI Systems.
Mr Marshall commenced employment with the Respondent in September 2021 in the position of Construction Worker Level 1. Mr Marshall’s duties were to service and repair the wash bays manufactured by the Respondent.
The Respondent contends that Mr Marshall was engaged as a causal employee.[3] Mr Marshall disputes this.
Section 15A(1) of the Act provides that:
“A person is a casual employee of an employer if:
(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.”
Section 15A(2) provides that:
“…in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.”
Section 15A(3) and (4) make clear that a regular pattern of hours does not, of itself, indicate a firm advance commitment to continuing and indefinite work and that whether an employee is a casual employee is to be assessed on the basis of the offer of employment and the acceptance of that offer and not on the basis of any subsequent conduct of the parties.
Mr Hayhurst’s evidence at the determinative conference was that Mr Marshall was a full-time casual employee. Mr Marshall was not employed pursuant to a written contract of employment.
Mr Hayhurst evidence was that the Respondent offered Mr Marshall employment on an initial 3 month period on a trial basis “to see if we liked him and he liked us”. After that 3 month period had been completed Mr Marshall would be provided with a pay rise and a company vehicle to perform his duties. He “didn’t think” that Mr Marshall had been expressly offered employment as a casual employee but said that Mr Marshall “had not not been told that he was engaged as a casual.” He did not know if Mr Marshall was paid a casual loading but agreed that on the pay slips in evidence before the Commission[4] Mr Marshall was not identified as a casual employee and no loading was disclosed.
Mr Marshall’s evidence was that he was not offered employment as a casual employee and it was his understanding that he was a permanent full time employee. Consistent with Mr Hayhurst’s evidence Mr Marshall’s evidence was that he was offered employment on an initial 3 month trial basis and if that period was satisfactorily completed he would be provided with a pay rise and a company vehicle and would be “going out on his own”. Mr Marshall’s evidence was that he worked 38 hours per week between 7.30 am to 3.30 pm, Monday to Friday. His evidence was that the Respondent’s wash bays were serviced on a regular 3 monthly schedule and that the future servicing schedule was written up on a white board. His evidence was that he would attend for work in the morning and servicing work would be allocated to him by the Respondent in accordance with the servicing schedule contained on the whiteboard. In addition, any urgent or repair work was allocated as it came in and he undertook this as directed and required by the Respondent. He said that he was required to be at work each working day, except when ill or on leave.
Mr Hayhurst agreed that Mr Marshall worked 38 hours per week, between 7.30 am to 3.30 pm Monday to Friday. He agreed that Mr Marshall was required to be at work each working day other than when he was ill or took leave and agreed with that the manner in which Mr Marshall said he was allocated work.
Accordingly, on the basis of material before the Commission, I find that:
(a)the Respondent could not elect whether or not to offer Mr Marshall work and Mr Marshall could not elect to accept or reject that work;
(b)Mr Marshall worked as required according to the needs of the Respondent;
(c)Mr Marshall’s employment was not described as casual employment; and
(d)Mr Marshall was not entitled to a casual loading under the terms of the offer of employment made to him.
As such, in accordance with section 15A(2) of the Act, I find that the offer of employment made to Mr Marshall and accepted by him was on the basis of a firm advance commitment to continuing and indefinite work according to an agreed pattern of work. I therefore find that Mr Marshall was not a casual employee. Rather, Mr Marshall was employed as a permanent employee.
Events between 4 April 2022 and 20 April 2022
Mr Marshall’s partner was pregnant with an expected due date of between 23 and 25 April 2022.[5] Mr Marshall’s evidence is that in the weeks leading up to the due date for the birth of his baby he attempted to speak to Mr Joseph Hayhurst about taking some parental leave and annual leave when the baby was born.[6] His evidence at the determinative conference was that he wanted to put arrangements in place before the birth to ensure that he had some income whilst at home with his partner after the birth. His evidence was that Mr Joseph Hayhurst told him he “had enough on and didn’t care” so he spoke to Mr David Hayhurst. His evidence was that he told Mr Hayhurst the baby’s due date and said that he would receive a 2 week paternity leave payment from Centrelink. He says he asked that he use his annual leave entitlements to cover the difference in payment between the Centrelink payment and his usual pay or, if the Respondent was agreeable, take a week of annual leave so that he could take a third week off after the birth. His evidence was that Mr Hayhurst said that either was fine and they would “work something out.” Consistent with Mr Marshall’s evidence Mr Hayhurst’s evidence was that in the weeks prior to 4 April 2022 there was a discussion between he and Mr Marshall about the impending birth of Mr Marshall’s child and that Mr Marshall was planning on taking some time off.[7] His evidence was that he and Mr Marshall discussed the Centrelink paternity leave payment. However, his evidence at the determinative conference was that he “did not recall” the conversation regarding Mr Marshall accessing his annual leave entitlements at that time. His further evidence was, however, that but he “wasn’t saying it didn’t happen”. Accordingly, I accept Mr Marshall’s evidence as to this conversation.
On Monday 4 April 2022 Mr Marshall’s evidence is that he attended for work as usual at 7.30 am. He told both Mr Joseph Hayhurst and Mr Hayhurst that over the weekend he and his partner had attended the hospital as it appeared that she was going into early labour. His evidence was that he told the Respondent that the doctors had said that his partner may go in to labour in the next few days. He says that he told Mr Hayhurst that he was “on call” for his partner for the next few days and that if she went into labour he would need to leave work to be with her. He says he said that if he was near the workshop at that time he would return the work vehicle before going to the hospital, but if he was closer to the hospital, he would go straight there and make arrangements for the vehicle to be returned to the Respondent.
He says that he was asked to undertake a stocktake of his vehicle which he finished at 9.00 am.[8] His evidence at the determinative conference was that after this he spoke to Mr Joseph Hayhurst who told him he thought it would be better if Mr Marshall went home to be with his partner. Mr Marshall’s evidence was that Mr Joseph Hayhurst “did not like the idea” of having to wait for Mr Marshall to return the work vehicle if he needed to attend the hospital and was not near the workshop. He says that this appeared to be the reason why Mr Joseph Hayhurst told him to go home. Mr Hayhurst’s evidence was that on 4 April 2022 Mr Marshall was “stressed” and “distracted” and that at a toolbox meeting it was considered that it would be best if Mr Marshall went home to be with his partner. His evidence was that he did not agree that Mr Joseph Hayhurst told Mr Marshall to go home, as asserted by Mr Marshall, however, he also said that he was not involved in that conversation. Mr Joseph Hayhurst did not give evidence for the Respondent. Accordingly, I accept Mr Marshall’s evidence as to this conversation also.
On 7 April 2022 Mr Marshall’s evidence is that he realised that he had not been paid for that week. Mr Marshall contacted Mr Hayhurst by text and email saying:
“Morning Dave”
Can you please send me through payslips from previous pays?
I obviously didnt get paid anything this week and thought I may be using some annual leave that I would have accrued over the 8 months.Otherwise I need to be at work. Cant afford to take time off. Teneale is not working so unless I am at work we have no income.
I wasn’t aware that this was leave without pay.
Cheers”[9]
Mr Hayhurst replied by email:
“Hi Chris,
Hope all is going well with the birth.Please find attached Pay Slips.
You said you were going to take paternity leave during the birth of your child and claim from centre link.
I acted on your instructions.We’re a small company. We can’t afford to pay you week in week out at $1400.56 if you’re not here. It’s a simple equation, if you work here you make money. The money you make pays your wages.
I can’t remember the last time you did a full week. At this stage you cost us more money than you accrue.
If you are going to continue working here you’ll need to step up and be here a lot more.
So the question is, do you think you will be able to be a viable employee for PSI Systems?You’ve had flashes of brilliance, Unfortunately though, you’re mostly distracted or not here.
We’re at a crossroads. I like you as a person. As an employee so far you’re not financially viable.
What would you do if you were me?”[10]
On 10 April Mr Marshall contacted Mr Hayhurst again saying:
“Hey Dave. I’m going to need to come in to work tomorrow as I can’t afford to have another unpaid week off. Will sort out getting the ute back to you guys if the situation of Teneale going into labour occurs during the course of the day. Chris.”[11]
Mr Hayhurst replied saying:
“Work is as quiet as a mouse. There’s not much for you to do. You’ve probably got about a week in wages left in the tank. I’ll work it out tomorrow and pay you some money to get you thru. Not really feeling this on call thing. It’s just too unpredictable.”[12]
On 18 April 2022 after the Easter break Mr Marshall sent a text to Mr Hayhurst saying he needed to come back to work as he could not afford to live without income.[13] He said that he would ensure that the work vehicle was returned as soon as possible to the Respondent.[14] I take this to mean that he would return the vehicle as soon as possible once his partner went into labour. Mr Hayhurst replied on 18 April 2022 saying, “Did she have the baby yet?” to which Mr Marshall replied “Nah she hasn’t”. [15] Mr Hayhurst responded with “Do you have a date?” to which Mr Marshall text that there had been a few dates, the latest being 23 April 2022 and confirming that his partner was now 39 weeks pregnant.[16]
At the determinative conference Mr Hayhurst said that he had no communication with Mr Marshall between him going home on 4 April 2022 and 18 April 2022. I reject that evidence. It is clearly incorrect. Further, in his witness statement Mr Hayhurst provided no detail of any of the communications between himself and Mr Marshall in that period.
Mr Hayhurst’s evidence was that Mr Marshall “had taken two weeks of unpaid leave which I was under the impression were paternity leave.”[17] I reject that evidence also and am unable to see how Mr Hayhurst could have been under that impression. Firstly, Mr Hayhurst knew on 4 April 2022 when it was determined that Mr Marshall was to go home, that Mr Marshall’s partner was not yet in labour and had not given birth. Secondly, Mr Marshall expressly states in his email of 7 April 2022 that “the baby has not come yet and is somewhat unpredictable.” [18] Thirdly, it is clear from Mr Marshall’s text on 10 April 2022 that his partner has not given birth nor gone into labour. Fourthly, Mr Hayhurst says in that text exchange that Mr Marshall’s “probably got about a week in wages left in the tank. I’ll sort something out tomorrow and pay you some money to get you thru.”[19] Accordingly, at no stage in the period 4 April 2022 to 18 April 2022 could Mr Hayhurst have reasonably believed that Mr Marshall was taking paternity leave following the birth of his child.
On 20 April 2022 Mr Marshall wrote to Mr Hayhurst saying, amongst other things, that he needed to return to work and could not afford not to be earning.[20] He made reference to having been stood down and indicated that he had spoken to the Fair Work Ombudsman and been advised that he could not be sent home without pay unless that had been discussed and agreed.[21] He sought that he be paid for the period that he had not been at work and for any further period that the Respondent wanted him to take off until the birth.[22] He also made reference to his discussions with Mr Hayhurst regarding his desire to take annual leave following the birth to spend a third week at home with his partner and new baby.[23] The entire text of this email is set out in Annexure A to this decision.
Mr Hayhurst replied as follows:
“Hi Chris,
“You weren’t stood down.
It was a mutual decision on the fact of a 2cm dilation (which I think is a bit too much information FYI)We took the privilege of the ute from you because you were unreliable.
There have also been concerns that drilling two holes ended up with three days off an multiple chiropractor appointments.Ombudsmen are people that aren’t smart enough to be lawyers.
If they were, they’d be lawyers. You’re welcome to forward this to old mate who didn’t quite have the intellect to pass the bar.I’m thinking I pay you a weeks wage tomorrow (which is more than I owe you) and we go our separate ways.
How does that sound?”[24]
Mr Hayhurst’s evidence is that Mr Marshall’s email of 20 April 2022 was “confusing and contradictory”.[25] At the determinative conference he said that he was “trying to get to the bottom of what Chris is doing” and that he was “not getting any information out of the bloke at all”.
I reject that evidence. Firstly, I do not consider there is anything confusing or contradictory about Mr Marshall’s email of 20 April 2022. Secondly, I consider it clear that what Mr Marshall “was doing” from 7 April 2022 until 20 April 2022 was seeking to return to work because his partner had not yet given birth and he therefore had no need of parental leave. He made this plain on 7 April, 10 April, 18 April and again on 20 April 2022. Rather than Mr Hayhurst “trying to get to the bottom of what Chris was doing”, I consider that Mr Hayhurst fully understood what Mr Marshall was doing and found it inconvenient that he may need to leave work without notice to be with his partner once she went into labour and may not return the work vehicle immediately. I consider this is evidence by his comment that he was “not really feeling the on call thing. It’s just too unpredictable”.[26] As such, I consider that Mr Hayhurst found it simply more convenient for Mr Marshall not to be in the workplace at that time than to have to accommodate him once his partner went into labour.
Mr Marshall submits that by sending him home on 4 April 2022, either ignoring or refusing his requests to return to work and not paying him for the period 4 April 2022 - 20 April 2022 the Respondent repudiated his contract of employment. His evidence was that upon receiving Mr Hayhurst’s reply on 20 April 2022 he considered that the Respondent did not intend to continue his employment and he was forced to find employment elsewhere.
Was Marshall’s contract of employment repudiated?
The High Court in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 described what constitutes repudiation as follows:
“…The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it...Secondly, it may refer to any breach of contract which justifies termination by the other party...There may be cases where a failure to perform, even if not a breach of an essential term ... manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.
In the past, some judges have used the word “repudiation” to mean termination, applying it, not to the conduct of the party in default, but to the conduct of the party relying upon such default. It would be better if this were avoided”[27]
In City of Sydney RSL & Community Club Limited [2018] FWCFB 5 the Full Bench said:
“The question whether there has been a repudiation of the contract of employment is determined objectively, it is unnecessary to show a subjective intention to repudiate[28] and is a question of fact not law.[29] Relevantly, for present purposes, repudiation may exist where an employer reduces the wages of an employee without the employee’s consent[30] or where there is a serious non-consensual intrusion on the nature of the employee’s status and responsibilities in a way which is not permitted by the contract.[31] Similarly, if an employer seeks to bring about a change in the employee’s duties or place of work which is not within the scope of the express or implied terms of the contract of employment, the conduct may evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an employee does not agree to the change, which if agreed would amount to a variation of the contract, the employee may claim to have been constructively dismissed.”[32]
In Wheeler v Philip Morris Ltd (1989) 32 IR 323 Grey J at 349 said:
“It is now well established that a contract of employment, like any other contract, cannot be terminated unilaterally otherwise than in accordance with its terms. See Turner v A/asian Coal and Shale Employees’ Federation (1984) 9 IR 87; 6 FCR 177 at 95-97 (IR); 189-193 (FCR) and Seymour v Stawell Timber Industries Pty Ltd (1985) 13 IR 289; 9 FCR 241 especially at 309-310 (IR); 265-266 (FCR) in the judgment of Gray J. If the breach by one party amounts to a repudiation of the contract, ie the breach evinces an intention by that party no longer to be bound by the contract, the other party has an option. He or she may elect to treat the contract as at an end, or to treat it as continuing. The option must normally be exercised soon after the wronged party becomes aware of the breach. If the election is to treat the contract as at an end, it is final, and the contract cannot thereafter be revived. Conduct inconsistent with a recognition of continuing obligations under the contract will ordinarily amount to an acceptance of the repudiation as bringing the contract to an end. The wronged party must act on the basis that both parties are still obliged to perform the contract, in order to demonstrate an election to keep it on foot. See generally Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 646, in the judgment of Stephen J.”
I have found that Mr Marshall was a permanent employee of the Respondent. Accordingly, whilst not required to provide Mr Marshall with work, the Respondent is required to pay Mr Marshall even when not performing duties, subject to Mr Marshall being ready, willing and able to perform his duties. I consider that by sending Mr Marshall home on 4 April 2022 and, most specifically, by not paying him for the period 4 April 2022 -20 April 2022 in circumstances where he did not consent to that course and was ready, willing and able to perform his duties the Respondent did, as contended by Mr Marshall, repudiate his contract of employment. I consider that the actions of the Respondent evince an intention to no longer be bound by the terms of the contract of employment. I further consider that Mr Marshall accepted that repudiatory conduct on 20 April 2022 following the receipt of Mr Hayhurst’s email[33] and brought the contract and the employment relationship to an end. After 20 April 2022 Mr Marshall did not contact the Respondent further, seek to return to work or indicate a willingness to do so, nor request payment pursuant to his contractual entitlements. As such, I consider that Mr Marshall’s conduct was inconsistent with a recognition of continuing obligations under the contract of employment and amounts to an acceptance of the Respondent’s repudiatory conduct.
It is well established that in circumstances where an employer engages in repudiatory conduct, that conduct is accepted by the employee and the employment contract and relationship are thereby brought to an end, that there has been a dismissal for the purposes of section 386(1)(a) of the Act.
Accordingly, I find that Mr Marshall was dismissed within the meaning of section 386(1)(a) of the Act and that the dismissal took effect on 20 April 2022.
Extension of Time
The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[34]
The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[35] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.[36]
Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person 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 person and other persons in a like position.
Reason for delay
The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[37] or a reasonable explanation.[38] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[39] the Full Bench noted that the absence of an 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 the applicant’s favour, however, all the circumstances must be considered.[40] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[41]
I have found that Mr Marshall’s dismissal took effect on 20 April 2022. Accordingly, the GP Application was required to be filed by midnight on 11 May 2022. The GP application was filed on 18 May 2022 and was therefore filed 7 days out of time.
Mr Marshall’s evidence is that after contacting the Fair Work Ombudsman (FWO) and the Commission he contacted Circle Green Community Legal (Circle Green) for assistance with his dismissal.[42] His evidence is that on 2 May 2022 in a telephone call Circle Green suggested he contact the Department of Mines, Industry Regulations and Safety (Wageline) to ascertain whether the Respondent was a national system employer (NSE) and therefore subject to the Act, or a state system employer and therefore subject to the West Australian (WA) industrial relations system. At the determinative conference Mr Hayhurst was not able to identify who, at law, employed Mr Marshall, stating that he did not understand the employment structure utilised by the Respondent. I also note that the payslips provided to Mr Marshall are headed “PSI Systems”. At the determinative conference Mr Hayhurst was also not able to confirm the nature of that body or whether it was a corporate entity or a trading name. Subsequent to the hearing, upon direction of the Commission, accountants for the Respondent confirmed that the Respondent (being a partnership of family trusts) was the relevant employing entity and that PSI Systems was the business’ trading name. Mr Marshall’s evidence is that on 2 May 2022 Wageline suggested to him that PSI Systems was subject to the WA state based unfair dismissal scheme. Mr Marshall’s evidence is that he struggled to find the relevant documentation to lodge under the state system and accordingly, on 10 May 2022 sought advice from Workhelp Lawyers. He says that he spoke to Workhelp Lawyers on 11 May 2022, who advised him to lodge a Form F9 unlawful termination application immediately based on the advice of Wageline. On 17 May 2022 Wageline sent an email to Mr Marshall advising him that on the basis of the information now provided by the Respondent “it appears that the business concerned is in the national system” and that the legal name of the employer was “Telecaster Pty Ltd as the trustees for D Hayhurst family trust and Hayhurst Nominees Pty Ltd as the Trustee for JH Family Trust”. Wageline directed Mr Marshall to the FWO website.[43]
A search of the Commission’s file demonstrates that on 12 May 2022, the day after Mr Marshall lodged the F9 the Commission called Mr Marshall and left a voicemail regarding the filing fee and whether the Respondent was a NSE. The voicemail left a number and asked Mr Marshall to return the call. On that date the Commission also forwarded a letter by email to Mr Marshall stating that his employer may be a NSE and that Mr Marshall may be able to make a general protections application (NSE Letter). The NSE Letter also identifies that any such application must be made within 21 days after the dismissal took effect. Mr Marshall returned the Commission’s call in the morning of 13 May 2022. The Commission’s file provides that Mr Marshall was “annoyed and frustrated” at receiving the NSE Letter as he had sought advice from Wageline and an employment lawyer and been advised to lodge an F9. The Commission’s jurisdiction and the extension of time process were explained to Mr Marshall, who advised that he would obtain some further advice. As set out above, on 17 May 2022 Wageline advised Mr Marshall that the Respondent was an NSE.[44] On 18 May 2022 Mr Marshall telephoned the Commission’s helpline at 16.59 pm in relation to the advice received from Wageline. He was given information regarding an F8 General Protections Application and advised to not delay further. Mr Marshall telephoned the helpline a second time at 17.08 pm and verbally discontinued the F9. He lodged the Application later that evening at 10.46 pm.
As to the reason for delay, Mr Marshall submits that the application was not necessarily made out of time as there was no official dismissal date, and he states that “it was therefore impossible to determine that my submission was 21 days after the date of dismissal”.[45] Mr Marshall says that his initial Form F9 application was filed in time and that he filed the Form F9 due to incorrect advice received from a lawyer. Wageline contacted Mr Marshall on 17 May 2022 to inform him that he had received the wrong information and Mr Marshall then lodged the Form F8 “as soon as possible” on 18 May 2022.[46]
The prior lodgement of an erroneous application to the Commission has been considered an acceptable reason for the delay in lodgement of a second application.[47]
In Hambridge v Spotless Facilities Services Pty Ltd[48] the Full Bench of the Commission said:
“… A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant’s access to the Commission’s jurisdiction.”
However, upon realising that an incorrect application has been made it is incumbent on an applicant to act swiftly in making the correct application.[49]
I reject Mr Marshall’s submission that the application was not necessarily filed out of time as there was no express date of dismissal. Mr Marshall’s own evidence was that following the receipt of Mr Hayhurst’s email on 20 April 2022 he considered that the Respondent no longer intended to be bound by the contract of employment and that he was compelled to find alternative employment. Further, following that date Mr Marshall contacted a range of bodies regarding his dismissal and his ability to challenge it. I consider that Mr Marshall knew on 20 April 2022 that he had been dismissed.
As to the filing of the Form F9, as set out above, at the determinative conference Mr Hayhurst could not identify to the Commission who, at law, Mr Marshall’s employer was, nor explain the role of “PSI Systems”. Notwithstanding that the Respondent is a small family run business, I find this extraordinary. As such, it seems entirely understandable that Mr Marshall had difficulty in ascertaining which application to bring. Further, it is to be noted that Mr Marshall is not employed pursuant to a written contract of employment which would, in the ordinary course, identify the employer, nor is the name of the employer contained on any payslips provided to him. The pay slips simply refer to the “PSI Systems”. Mr Marshall diligently sought advice from a range of sources, including a department of the West Australian Government and a private solicitor as to the correct application to make and to whom, and on the basis of that incorrect advice filed an unlawful termination application (Form F9). That application, although incorrect, was filed within time. Upon being advised by the Commission that an unlawful termination application may not be the correct application and confirmation from Wageline that it had provided the wrong advice and that the Respondent was a NSE, Mr Marshall acted expeditiously, contacting the Commission the next day, discontinuing the unlawful termination application and lodging the GP Application a few hours later.
In light of all of the above, I consider that Mr Marshall has provided a reasonable or acceptable explanation for the delay in lodgement. This weights in favour of the grant of an extension of time.
Action taken by the person to dispute the dismissal
As set out above, it is uncontested that the Applicant lodged a Form F9. This weighs in favour of granting an extension of time.
Prejudice to the employer
I cannot identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. Nonetheless, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
Mr Marshall submits that adverse action was taken against him in breach of section 351 of the Act and that he was dismissed because of his family or carer’s responsibilities.[50] The Respondent says that Mr Marshall agreed to take parental leave on 4 April 2022 and left his employment of his own volition.[51] I have earlier found that Mr Marshall was dismissed by the Respondent and accordingly adverse action as defined in section 342 of the Act has been taken against him. As to whether that adverse action was because of Mr Marshall’s family or carer’s responsibilities, although the matter has not been fully tested, on the material currently before me, I consider Mr Marshall’s claim to have merit. This weighs in favour of the grant of an extension of time.
Fairness as between the person and another person in a like position
Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[52] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[53] Neither party drew my attention to any persons or cases that would be relevant in relation to the question of fairness as between Ms Marshall and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
Having regard to the matters I am required to take into account under s 366(2), and all of the matters raised by the parties, I satisfied that there are exceptional circumstances. In my view, when all the various circumstances are considered together, they are exceptional. In particular, the inability of the Respondent to be able to identify who the employer at law was and the consequent difficulty in ascertaining the correct application to be made, the incorrect advice provided to Mr Marshall, including by a privately engaged solicitor as to the correct application, upon being advised of the error the expeditious manner in which Mr Marshall acted to discontinue the unlawful termination application and lodge the GP Application and the merits of the matter are circumstances which, when taken together, are out of the ordinary course, unusual, special or uncommon. As such, I am satisfied that there are exceptional circumstances.
Accordingly, I grant an extension of time under s 366(2) for the lodgement of the Application until 18 May 2022.
The matter will now be referred for further management in accordance with section 368 of the Act.
DEPUTY PRESIDENT
Annexure A
20 April 2022 email from Marshall to Hayhurst
“Hi Dave and Joe,
As already mentioned I really need to be at work and cannot afford to not be earning, especially with a baby on the way. We are well into a third week now.
There is no valid reason to stand me down like this and, after talks with you and Joe, it seems to be entirely based on the possibility that you may have to collect the work Ute from the hospital if Teneale goes into labour during the working day, or wait for me or a family member to drop it off as soon as possible.
I have done some research into this and spoken to the Fairwork Ombudsman who has advised me that at no point can I be sent home without pay unless it has been discussed and agreed upon, which did not occur.
I am entitled to and request tthat I be backpaid for the time I have been asked to take off and paid for any further time off you wish for me to have, from and including the 4th of April until the baby is born and I return to work.
As mentioned to Dave previously after the baby is born a 2 week Centrelink payment will be supplied to me where I believe you may not have to pay me. As also mentioned to Dave I would like to use my annual leave to allow a thirst week off so I could be at home with Teneale and the baby.
At this stage I would also like to bring to your attention that a payslip for all employees must be supplied. I think this is a rather important aspect and would request that it please becomes something that is the weekly normality on pay day.
Please send me a confirmation that you have received and are considering this email.
Regards,
Chris”
[1] Form F8, 1.2, Court Book (CB) pg 5
[2] Form F8A, q.4.1 at 2.1, CB pg 53
[3] Ibid at 2.2
[4] CB pg 36-38
[5] Witness statement of Christopher Marshall, CB pg 18
[6] Ibid
[7] Witness statement of David Hayhurst, CB pg 62
[8] Witness statement of Christopher Marshall, CB pg 18
[9] Item 4, CB pg 35
[10] Item 4a CB pg 67
[11] CB pg 68
[12] Ibid
[13] Item 6, CB pg 40
[14] Ibid
[15] Ibid
[16] Witness statement of Christopher Marshall, CB pg 19-20; Item 6, CB pg 40
[17] Witness statement of David Hayhurst, CB pg 62
[18] CB pg 68
[19] Item 5, CB pg 39
[20] Item 3A, CB pg 33
[21] Ibid
[22] Ibid
[23] Witness statement of Christopher Marshall, CB pg 20-21, Item 3A CB pg 33
[24] Item 3B, CB pg 34
[25] Witness statement of David Hayhurst, CB pg 62
[26] Item 5, CB pg 39
[27] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, at [44] and [45], see [44] –[55]
[28] See for example Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [32] – [41] and Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1 at [126]
[29] See Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693 at 698,699-700, 701-702
[30] See for example Rigby v Feredo Ltd [1988]ICR 29 and Brockton Holdings No V Pty Ltd v Kara Kar Holding Pty Ltd (1994) 57 IR 28
[31] See for example Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [41] – [46], [68] and Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1 at [126]
[32] City of Sydney RSL & Community Club Limited v Balgowan, Roxana[2018] FWCFB 5 at [18]
[33] Item 3B, CB pg 34
[34] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
[35] [2011] FWAFB 975
[36] Ibid at [13]
[37] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[38] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[39] [2018] FWCFB 901
[40] Ibid at [39]
[41] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
[42] Applicant’s Outline of Argument: extension of time, q.1d, CB 13; Item 2D and 2E, CB pg 29-30
[43]Item 2, CB pg 25
[44] Ibid
[45] Applicant’s Outline of argument: Extension of time at 1d; CB pg 13
[46] Ibid
[47] Lane v Kangaroo Island Drive & Adventures Pty Ltd[2010] FWA 3939; Nash v Discovery Holiday Parks Barossa – Tanunda[2015] FWC 380; Green v Bilco Group Pty Ltd[2018] FWC 6818
[48] [2017] FWCFB 2811 at [41]
[49] Kelly v The Alphabet Academy Sydney Pty Ltd T/A The Alphabet Academy[2017] FWC 3090 at [15]
[50] Form F8, q.3.2; CB pg 8
[51] Form F8A, q.5.1; CB pg 54
[52] Wilson v Woolworths [2010] WA 2480 at [24-29]
[53] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
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