Damian Jones v Motorola Solutions Australia Pty Ltd

[2016] FWC 3684

[2016] FWC 3684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Damian Jones
v
Motorola Solutions Australia Pty Ltd
(C2016/2810)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 JUNE 2016

Application to deal with contraventions involving dismissal.

[1] Mr Damian Jones alleged his employment was terminated Motorola Solutions Australia Pty Ltd in breach of the general protections provisions of the Fair Work Act 2009.

[2] At the hearing I granted permission for the parties to be legally represented. I accepted their submission that it would enable the matter to be dealt with more efficiently given the complexity of the matter.

When did the dismissal take effect?

[3] Mr Jones submitted that his application was made within 21 days of the date the dismissal took effect.

[4] Mr Jones did not dispute that on 28 October 2015 he was told by Ms Denise Towie, the local Adelaide Project Director, that his services would no longer be required from the end of the week. Mr Jones accepted that he last performed work on 30 October 2015 but he said he was required to travel back to Melbourne on 31 October 2015.

[5] Mr Jones submitted that there was some doubt about the date of the dismissal. He submitted that as he was not provided with anything in writing to confirm his termination his application should be considered to have been lodged within 21 days. He further submitted that termination “should be considered to occur when an employment contract is at an end and has been fully performed by all parties, inclusive of payment of all outstanding invoices, etc to an employee.” 1 Alternatively he submitted that termination took effect seven days after he returned to Melbourne.2

[6] Mr Jones did not have any authority for the proposition that dismissal did not take effect until his invoices were paid.

[7] Motorola submitted that Mr Jones was engaged as an independent contractor and it did not dismiss him. It submitted that it ceased to engage Mr Jones by agreement from 30 October 2015.

[8] For the purpose of determining this matter it is necessary to determine when Mr Jones’ engagement, be it as an employee or an independent contractor, came to an end. I do not accept the submission that Mr Jones remained engaged by Motorola until his dispute about unpaid invoices was resolved. Mr Jones on his own evidence was advised that his engagement would end at the end of the week. Further his engagement did in fact end. That he was not given written notice may be a breach of contract but it does not mean that the contract did not come to an end. That Mr Jones may be owed monies by Motorola does not mean that the contract did not come to an end.

[9] The engagement ended either on 30 or 31 October 2015 and hence his application was not made within 21 days after the engagement ended.

Extension of time

[10] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[11] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 3 where the Full Bench said:

“[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon." [Endnotes not reproduced]

(a) the reason for the delay;

[12] Mr Jones gave evidence that when he returned to Melbourne at the beginning of November 2015 his focus was on his parents’ business affairs. He returned to Adelaide with his parents from 8 November 2015 to 20 November 2015. He had purchased these tickets prior to being terminated and he would have lost the benefit of the tickets if he had cancelled the trip. He said he made these bookings because of representations by Motorola that he would still be employed and the change of Motorola’s position on 28 October 2015 was a negligent act and that Motorola is now estopped from relying on its act. He said this was unusual and out of the ordinary course of events. He said he was unable to meet with his solicitor in this time to consider his options.

[13] On 23 November 2015, Mr Jones met with his accountant to sort out his parents’ business matters and he further met with his solicitor. Mr Jones became aware at this time that Motorola had not paid him superannuation. As a result of obtaining advice Mr Jones prepared a letter and an invoice to go to Motorola. He then spent the rest of the week attending to his parents’ financial accounts.

[14] On 4 December 2015, Mr Jones uncle suffered a broken hip and he gave evidence that he and his parents sought advice about making a guardianship application should the need arise. Mr Jones’ father was notified on 7 March 2016 that he had power of attorney in relation to this person. Mr Jones submitted that his uncle’s ill health placed considerable emotional pressure as well as physical and time demands on Mr Jones and his parents.

[15] On 9 December 2015, Mr Jones sent Motorola an invoice for monies claimed. On 5 January 2016, Motorola advised they would respond but gave no timeframe. Mr Jones submitted that it was only reasonable for him to provide Motorola with an opportunity to resolve the dispute.

[16] On 1 January 2016, a close relative of Mr Jones died and his parents travelled to Queensland for the funeral and Mr Jones was required to attend to his parents’ affairs.

[17] He submitted that due to the Christmas/New Year he was unable to respond to Motorola as his solicitor was on leave from 23 December until 11 January.

[18] He gave evidence that he was required to assist his father with a planning application around Christmas as he was not able to attend to it.

[19] When his solicitor returned he sought advice about enforcing the nonpayment of monies owed.

[20] On 24 January 2016, a close family friend died and Mr Jones attended the funeral.

[21] On 1 February 2016, Mr Jones filed a form F10 application at the Commission on the basis of advice provided by his solicitor. He paid a filing fee which was returned on 4 February 2016. That application was referred to conciliation and while it was not before me, an examination of the Commission files indicates that Mr Jones filed a dispute in relation to provisions of the Professional Services Award 2010 and the Fair Work Act 2009. Mr Jones advised that dispute was about his claim that he was an employee and that Motorola had failed to pay him certain entitlements. Mr Jones sought orders that Motorola pay him his outstanding entitlements plus the costs of the proceedings.

[22] On 5 February 2016, he met with his lawyer to discuss his claim and he was advised to write to the Commission and seek to bring additional claims under the general protections provisions of the Act and to seek to have them dealt with at the same time as this dispute. He said he sent a letter on 15 February 2016 to the Commission but it was returned to sender on 17 February 2016. He said he then delivered the letter on 17 February 2016.

[23] The dispute was referred to a conference on 24 February 2016 but it was not resolved. On 1 March 2016, Mr Jones filed a general protections application. In his covering letter he said that he had been given until 4 March 2016 to advise how he wished his dispute notification to proceed. He said that there had been a discussion of a general protections claim and that if he wished to pursue that claim it needed to be lodged separately. He said that both applications revolved around that same set of events. He therefore advised that he would not be advising about his dispute notification until the general protections claim had been dealt with.

[24] Mr Jones relies, in part, on representative error to explain why his application was not lodged in time as his solicitor advised him to notify the Commission of a dispute rather than make a general protections application. Further, his solicitor erred in telling him to notify the Commission of the general protections application by letter rather than by completing the correct form.

[25] Mr Jones relied upon the many factors that prevented him from lodging his form to establish that there were exceptional circumstances. He submitted that it was the combination of factors which, when taken as a whole, establish that there were exceptional circumstances.

[26] Motorola submitted that Mr Jones had not provided a reasonable explanation for the whole of the delay. It submitted that Mr Jones did not challenge the dismissal when he lodged the F10. It submitted that Mr Jones had only lodged this application after the member dealing with the F10 had explained that this application would be unsuccessful. Motorola submitted that none of the factors relied upon by Mr Jones prevented him from sending correspondence to the Managing Director. It submitted that given the length of the delay Mr Jones would need to establish compelling reasons for the delay.

[27] Accepting that Mr Jones was “dismissed” on 31 October 2015, he had until 21 November 2015 to file his application.

[28] Mr Jones took a number of steps to pursue his claim for underpayments but he did not, until he lodged his general protections application, allege that he had been dismissed because he exercised his workplace rights or any other reason prohibited by the Act.

[29] While I accept that Mr Jones faced a number of difficulties during this period which were out of the ordinary, I do not accept that Mr Jones has provided a reasonable explanation for the whole of the delay in lodging his application.

[30] During the time when he should have lodged his application, Mr Jones was in Adelaide with his parents having booked the fares and accommodation. There was no explanation as to why Mr Jones could not, whilst in Adelaide, contact his solicitor by telephone or research his options himself on the Commission’s website.

[31] While I accept that Mr Jones was required to assist with his parents’ and his uncle’s affairs, this did not prevent him from communicating with Motorola about his claim for unpaid entitlements. It is therefore difficult to explain how these activities prevented him from making this claim.

[32] Mr Jones did not seek legal advice until 23 November 2015 and there is no suggestion that he sought advice in relation to any matter other than his unpaid entitlements. There is no evidence that he sought advice on the termination of his engagement. There is no evidence that this occurred prior to 5 February 2016, by which time Mr Jones’ application was well outside the time frame set by the Act.

[33] Mr Jones was made aware on 24 February 2016 of the need to file a separate general protections application but he did not do so until 1 March 2016. To the extent that he relied upon representative error to explain why he did not lodge this application on 5 February or 15 February, it does not explain why it took him five days to lodge the lodge the application after the conference. Mr Jones said he was given until 4 March 2016 to advise the Commission about his dispute notification however as is clear from Mr Jones’s letter that was in relation to advising the Commission about what he wanted to happen to his dispute notification. There was no evidence that he was told he could delay lodging his general protections application.

[34] Mr Jones has not provided a reasonable explanation for the whole of the delay and this weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[35] Mr Jones was aware of the dismissal when it took effect and had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[36] Mr Jones said he asked why he was being dismissed at the time he was advised of his dismissal. He further gave Motorola an opportunity to respond to his demands that he be paid his entitlements. While I accept that Mr Jones pursued his entitlements he did not in his communication with Motorola raise any claim that the termination of his engagement breached the general protections provisions of the Act.

[37] This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[38] There was no evidence or submission about any prejudice to Motorola. While a lack of prejudice is an insufficient basis to grant an extension of time a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[39] In the matter of Kornicki v Telstra-Network Technology Group 4 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."  5

[40] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission "should not embark on a detailed consideration of the substantive case." 6 

[41] Mr Jones submitted that he was an employee of Motorola. Mr Jones provided labour to Motorola. Motorola submitted that he was not an employee but an independent contractor. Mr Jones alleged that his employment was terminated because he advised that he would be filing a complaint against Motorola for breaching his contract. Motorola did not call any evidence in relation to the merits of the matter. In those circumstances I find that Mr Jones has an arguable case and that weighs in favour of a finding of exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[42] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 7 considered this criterion and said:

“cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 8”

[43] There were no submissions that this criterion had any relevance to this application and I consider it to be a neutral consideration.

Conclusion

[44] I do not accept the submission that Mr Jones is required to establish compelling reasons for the delay given its length. However he is required to provide an explanation for the whole of the delay. For the reasons set out above I am not satisfied that he has provided a reasonable explanation for the whole of the delay and while other factors weigh in favour of finding exceptional circumstances they are not sufficient to outweigh his lack of a reasonable explanation for the whole of the delay.

[45] Mr Jones’ application for an extension of time is therefore dismissed and accordingly his general protection application is also dismissed.

DEPUTY PRESIDENT

Appearances:

J. Dunemann for the Applicant.

R. Catanzariti for the Respondent.

Hearing details:

2016.

Melbourne, by telephone link:

30 May.

 1   Exhibit A2 at [11]

 2   ibid

 3   [2011] FWAFB 975

 4   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 5   Ibid

 6   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 7   [2015] FWC 8885

 8   Ibid at [29]

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