Dishan Jayasekera v National Disability Insurance Agency & Chandler Macleod Group Limited
[2024] FWC 2855
•15 OCTOBER 2024
| [2024] FWC 2855 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dishan Jayasekera
v
National Disability Insurance Agency & Chandler Macleod Group Limited
(C2024/5829)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 15 OCTOBER 2024 |
Application to deal with contraventions involving dismissal – extension of time – exceptional circumstances not found – application dismissed.
Introduction
On 19 August 2024, Mr Dishan Jayasekera made an application to the Commission under s.365 of the Fair Work Act 2009 (Cth) (FW Act) to deal with contraventions involving dismissal. The application is made against two respondents: Chandler Macleod Group Limited (Chandler) and the National Disability Insurance Agency (NDIA). The Applicant contends that he was dismissed effective 3 June 2024, in contravention of sections 340 and 351 of the FW Act.
Both respondents have raised a jurisdictional objection that the application was not made within the prescribed time. In addition, the NDIA has raised a further jurisdictional objection that the Applicant was not an employee and was not dismissed by the NDIA. Chandler has also raised a further jurisdictional objection, that the Applicant has not been dismissed within the meaning of s.386 of the FW Act.
This decision deals only with the objections that the application was lodged more than 21 days after the dismissal took effect. For that purpose, I am assuming that the Applicant was dismissed as he contends, effective 3 June 2024.
Section 366 of the FW Act states that an application under section 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
The period of 21 days ended at midnight on 24 June 2024. The application was therefore filed 56 days outside the 21-day period.
For the application to proceed, Mr Jayasekera requires the Commission grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a hearing on 11 October 2024, at which the Applicant gave evidence in support of his application.
The NDIA sought, but was not granted, permission to be legally represented. I was not satisfied that any of the criteria in s.596(2) of the FW Act were satisfied given that the NDIA was not required to file any material (although did file comprehensive written submissions opposing an extension of time being granted), and where the onus is on the Applicant to satisfy the Commission that exceptional circumstances existed and that additional time should be granted.
Factual context
The Applicant was employed in the role of Director – Strategy at the NDIA since August 2022. He was approached by the NDIA about the role and after being interviewed was told that he would be hired through a labour hire agency. The Applicant was subsequently provided with a contract by Chandler, which he signed. He acknowledges that Chandler was his ‘technical employer’ and his ‘employer of record’.
On 18 June 2024, the Applicant made an unfair dismissal application (U2024/7033) against both the NDIA and Chandler. The Applicant submitted the application “after reviewing the Fair Work Commission website, including details on labour hire arrangements” and “after reviewing the website’s case studies”.[1] At that time, he did not seek legal advice due to cost concerns.[2] This unfair dismissal application was made within 21 days of the dismissal taking effect.
I note that the Commission’s website pages dealing with unfair dismissal matters includes:
People who work through a labour hire agency
A ‘labour hire worker’ is someone who has a work contract with a labour hire agency.
Examples of labour hire workers or agency staff are:· a nurse working for a nursing agency
· a cook working for a hospitality agency.
In this situation:
· the labour hire agency has a contract with the worker and pays them
· the labour hire agency has a contract with a host firm to supply workers
· the host firm pays the agency, not the worker.
If you are a labour hire worker you cannot apply for unfair dismissal against the host firm. You may apply for unfair dismissal against the agency. Labour hire agencies are national system employers.
On 23 June, he received correspondence from the Client Services team at the Commission. The correspondence included:
We have received your application saying you were unfairly dismissed.
There is missing or incorrect information in your application.
We need you to fix your application before we can go ahead with your case. You must do this by 7 July 2024. If you don’t, your application may be dismissed.
…
You have listed more than one employer in your application form. Each unfair dismissal application can only relate to a single dismissal by a single employer. Before your case can go any further, you need to update your application form to identify who your employer was. To confirm who your employer was, look for their ABN on your pay slip. Then go to the ABN Lookup website and search using their ABN. If you still aren’t sure who your employer was, you should get independent advice. You can find information about where to get legal help on our website.
The same day, the Applicant filed an amended application removing Chandler as a Respondent, and identifying the NDIA as his employer.
On 21 July 2024, the NDIA raised a jurisdictional objection to the application, on the basis that it was not and had never been the Applicant’s employer.
Following conciliation by Commission staff on 30 July 2024, the Applicant sought legal advice on 5 August 2024.
The Applicant submits that he was advised to file a Form F1 to amend his unfair dismissal application to a general protections application, and that this would be “assessed as an extension of time application”. He filed a Form F1 on 6 August 2024 which sought to:
· amend the Form F2 unfair dismissal application to a Form F8 general protections application;
· grant an extension of time for lodging the Form F8 general protections application; and
· add (or reinstate) Chandler as a second respondent.
The grounds for the application included:
“After I had lodged the application, I was made aware of the respondents’ jurisdictional objections in the respondent’s written response, and in the conciliation meeting. At this point, I sought legal advice, and was advised that my application is eligible to be considered under general protections, not unfair dismissal (as I had wrongly assumed, given my lack of previous experience navigating these channels for recourse). I was unaware of the distinction between the unfair dismissal process and general protections process, and was only made aware of this difference after seeking legal advice.”[3]
The Applicant submits that at a case management conference on 16 August 2024, he was made aware that the F1 application would not be assessed as an extension of time application. On 19 August 2024, the Applicant withdrew his unfair dismissal application and the F1 application, and advised that he would instead submit a Form F8 general protections application. He then made the current application three days later by email on 19 August 2024.
Extension of time
Additional time can be allowed under section 366(2) of the FW Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[4]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[5]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[6]
Relevant factors
Reason for delay:
The FW Act does not specify what reason for delay might support the 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 the applicant’s favour, however all of the circumstances must be considered.[7]
The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[8] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[9]
According to the Applicant, and as is apparent from the timeline set out above, he made an unfair dismissal application within the 21-day period. He made the decision to make an unfair dismissal application after reviewing the Commission’s website, but before obtaining legal advice. He did not seek legal advice until 5 August 2024, which was 11 days after the 21-day period had expired. The Applicant is an articulate tertiary-qualified individual who was working in a senior role at the NDIA during his employment with Chandler.
I am not satisfied that the Applicant has provided an acceptable explanation for the delay in making the application. Even accepting, although there is no evidence of the written legal advice the Applicant contends that he received and acted on, that there was some representative error involved that led to the Applicant making the Form F1 application, that does not explain the 11-day delay between 24 June 2024 when the 21-day period expired and 5 August 2024 when he sought legal advice.
In essence, after his dismissal, the Applicant decided to make an unfair dismissal application against both the NDIA and Chandler McLeod. He did so after taking steps to review the Commission’s website, which includes comprehensive information about both unfair dismissals and general protections applications. He then decided to discontinue the application against Chandler McLeod.
The Applicant contends that the delay is at least partly attributable to the complexity of his employment situation. However, I do not accept this to be a reasonable explanation for the delay. Firstly, labour hire arrangements are not particularly unusual or complex, as is clear from the information on the Commission’s website. More importantly, to the extent his employment arrangements were complex, the complexity was about who his employer was. It was not about whether a general protections or an unfair dismissal application was available or appropriate. Further, whatever the level of complexity involved in the Applicant’s employment relationship, the Applicant was able to, and did, make an unfair dismissal application within the time limit. The making of a general protections application is no more or less complex in the context of his employment arrangements. This is apparent as the unfair dismissal application and the general protections application that the Applicant made contain essentially the same substantive content.
I find that the primary reason for the delay was the Applicant’s lack of knowledge regarding unfair dismissal applications and general protections. As Mr Jayasekera said, he believed that an unfair dismissal application was the “most appropriate way” to challenge his dismissal and he did not know about general protections applications. Whilst I accept that Mr Jayasekera was unfamiliar with the options open to him, such unfamiliarity is neither exceptional, nor unusual or uncommon and will not usually provide an acceptable reason for a delay. The Commission’s website contains a great deal of accessible information about the types of applications that can be made, the eligibility requirements and nature of each, and the timeframes within which to lodge them. The Applicant had accessed the website, obtained information, and decided to make an unfair dismissal application. He subsequently decided to obtain legal advice and ultimately decided that a general protections application was more appropriate. He discontinued the unfair dismissal application and lodged the current application.
I am also not satisfied that the Applicant has provided a reasonable explanation for the further period of delay between 16 August 2024, by which date he had decided to withdraw his unfair dismissal application against the NDIA and make a general protections application, and 19 August 2024, when he made the current application. The Applicant’s evidence was that he was busy with family life, with two young children, and he wanted to take the time to “do it properly”. The Applicant was aware that he was already outside the 21-day time limit, and I am not satisfied that this is a reasonable explanation for the further 3-day delay.
Taking into account all the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in making the application. Ultimately, the reason for the delay is the Applicant’s ignorance of the legal framework and options available to him, and that an alternative option to an unfair dismissal claim, being a general protections application, was available. As the Full Bench in Nulty said:
“In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”[10] (emphasis added)
The absence of an acceptable or reasonable explanation for much of the considerable delay in making the application, weighs heavily against a conclusion that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal:
The Applicant relies on this consideration to support a finding of exceptional circumstances.
It is clear that the Applicant took significant and prompt action to challenge his dismissal. He made an unfair dismissal application, in essentially the same terms as the general protections application, within two weeks of being dismissed. Both respondents were on notice, at least since 18 June 2024, when the unfair dismissal application was lodged, that the Applicant intended to challenge his dismissal.
This is a consideration that weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay):
There is no evidence of any particular prejudice to the respondents, and I have treated this as a neutral consideration.
Merits of the application:
As noted above, the Applicant acknowledged that his contract of employment was with Chandler and not the NDIA, and that Chandler was his ‘technical employer’ and his ‘employer of record’.
In the Form F8 application, the Applicant claims that the NDIA contravened s.340 of the FW Act by terminating his contract because the Applicant exercised or proposed to exercise a workplace right. Further, that Chandler and NDIA contravened s.351 of the FW Act by terminating his contract as a result of his request to maintain his flexible working arrangements.
In relation to the claims against the NDIA, considering the Applicant’s acknowledgement that Chandler, and not the NDIA, was his employer (which appears likely to be correct), then it is not clear how the NDIA is alleged to have contravened either section. As the host firm and not the employer, the NDIA was not in a position to terminate the Applicant’s contract of employment.
In relation to the claims against Chandler, Chandler submits that the Applicant was not dismissed. Chandler submits that whilst the Applicant’s assignment with the NDIA was terminated, he was subsequently offered assignments on 19 June, 27 June, 25 July, 8 August, 19 August and 12 September 2024, which the Applicant either rejected or did not respond to.[11] The Applicant acknowledges that further assignments were offered to him, but contends they were unrelated to his skill set and were at lower levels and that this does not detract from the fact that he was “dismissed from [his] substantive role at NDIA”. The alternative assignments offered to the Applicant may not have been attractive to him, but the fact that alternative assignments were offered does not indicate that Chandler terminated the Applicant’s employment. On this basis, it would seem that the Applicant faces major obstacles in establishing that he was dismissed by Chandler, his employer.
On the basis of the material before the Commission, it does not appear that the Applicant has a strong case. In the circumstances, I have treated this as a neutral consideration.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Mr Jayasekera’s claim. However, cases will generally turn on their own facts.
No party raised any relevant matters concerning this consideration, and I have treated this as a neutral consideration.
Conclusion
In summary, other than the action taken by the Applicant to dispute the dismissal, none of the considerations I need to take into account weigh in favour of a finding of exceptional circumstances. The clear and prompt action taken to dispute the dismissal does not outweigh the absence of an acceptable reason for the delay in making the application.
I am not satisfied that there are exceptional circumstances in this case. As a result, no additional time can be allowed for Mr Jayasekera to make his application.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
D. Jayasekera, the Applicant, appearing on his own behalf.
P. Simmons, appearing on behalf of the National Disability Insurance Agency.
S. Willett, appearing on behalf of Chandler Macleod Group Limited.
Hearing details:
2024
11 October
[1] Attachment A – Background and detail of events at [19].
[2] Ibid
[3] Form F1 filed in U2024/7033, Answer to Q2.2.
[4] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[5] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[6] Ibid.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[8] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[9] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
[10] Cheyne Leanne Nulty v Blue Start Group Pty Ltd[2011] FWAFB 975. See also Ferrus v Techforce Staffing Services Pty Ltd [2021] FWC 6007 at [51].
[11] Chandler’s Outline of Submissions dated 8 October 2024.
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