Gary Teis v Matrix Global Real Estate Pty Ltd T/A Matrix Global Real Estate
[2020] FWC 1413
•18 MARCH 2020
| [2020] FWC 1413 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gary Teis
v
Matrix Global Real Estate Pty Ltd T/A Matrix Global Real Estate
(U2019/8044)
COMMISSIONER HUNT | BRISBANE, 18 MARCH 2020 |
Application for an unfair dismissal remedy – jurisdictional objections raised – whether employee or independent contractor – late discovery of application made outside of 21-day time limit – consideration of exceptional circumstances – no exceptional circumstances.
[1] On 21 July 2019, Mr Gary Teis made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Matrix Global Real Estate Pty Ltd T/A Matrix Global Real Estate (Matrix or the Respondent) was harsh, unjust or unreasonable.
[2] Mr Teis nominated the termination date within his completed Form F2 – Unfair dismissal application as 1 July 2019. If this was the correct date of dismissal, it would result in his application having been made within the statutory 21-day time limit.
[3] Matrix objected to the application on two jurisdictional grounds; firstly, that Mr Teis was not an employee of Matrix, and therefore could not have been dismissed within the meaning of s.386 of the Act. Secondly, Matrix contended that it is a small business, and if it were found that an employment relationship existed with Mr Teis, it had complied with the Small Business Fair Dismissal Code.
Determinative Conference
[4] On 2 December 2019, a hearing was scheduled to determine the Respondent’s two jurisdictional objections. Mr Teis appeared for himself and gave evidence. Ms Linlin Du, Director, appeared for Matrix and gave evidence. Ms Vivienne Dong, Director, was ordered to attend the hearing by telephone on account of her earlier failure to participate in a teleconference. After hearing from the parties I decided to hear the matter as a determinative conference.
[5] Following the determinative conference, I reserved my decision on the two jurisdictional issues.
Legislative Framework
[6] Section 394 of the Act provides the criteria required to obtain an unfair dismissal remedy:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…
(1) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Discovery that the application had been made out of time
[7] On 25 February 2020, the following correspondence was sent to the parties:
“Dear parties,
Upon review of this matter, it has come to the Commission’s attention that this matter appears to have been lodged out of time. The Commissioner notes that the Respondent did not raise this issue as a jurisdictional objection before the Commission.
Pursuant to s.396(a) of the Fair Work Act 2009 (the Act) the issue as to whether the application was made within the period required in s.394(2) of the Act must be decided before considering the merits of the application. Section 394(2) of the Act provides that:
“(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).”
Application lodged out of time
It is noted that the Applicant lodged the attached Form F2 – Unfair dismissal application on 21 July 2019. The Form F2 states that the dismissal took effect on 1 July 2019 (in which case would mean that the application was lodged in time). However, the subsequent attached outline of argument filed by the Applicant at question 3b, and the material filed by the Respondent including the attached email dated 28 June 2019, indicates that the dismissal took effect on 28 June 2019.
As the dismissal took effect on 28 June 2019, the application would need to have been filed by 19 July 2019 to meet the 21 day time limit. It appears that the application has been made two days out of time.
Submissions from the Applicant
The Commissioner directs the Applicant to file submissions as to why the Commission should allow a further period for the application to be made pursuant to s.394(3) of the Act (refer to attached extract), by no later than 4:00pm AEST Friday, 28 February 2020. The Applicant is also required to state why the Applicant has nominated 1 July 2019 as the date of the dismissal on the F2 application form.
Reply from the Respondent
Upon receipt of the submissions filed by the Applicant, the Respondent is granted the opportunity to file any material in reply, by no later than 4:00pm AEST Wednesday, 4 March 2020.
Decision
Upon receipt of the materials filed by both parties, the Commissioner will make a decision on the papers about whether the Commission allows a further period for the application to be made. The decision will be made on the papers, unless there is a requirement for a hearing on this issue involving a factual contest.”
[8] The basis of sending the above email to the parties, and requiring Mr Teis to address the criteria in s.394 of the Act is the email of 28 June 2019, sent at 11:50 am, headed ‘Termination’ and produced below:
“Dear Gary,
Thank you for working with Matrix Global Real Estate PTY LTD.
This email is to confirm the termination of your independent contractor agreement with Matrix Global Real Estate PTY LTD, effect immediately.
Kind Regards
Linlin Du & Vivienne Dong”
[9] Mr Teis had earlier been sent a letter from Matrix dated 24 June 2019 explaining that Ms Du and Ms Dong, the two directors inter alia had different ways of doing business and had decided to close down the real estate agency and open up separate agencies. The letter explained that termination notices would be received by 30 June 2019, and those working for the agency were welcome to work for either of the two directors in their new enterprises, or seek work elsewhere. It is clear that none of the workers who were ‘let go’ from Matrix were dismissed because of poor performance or misconduct; it was simply that Ms Du and Ms Dong could no longer work with each other, and they decided to end their business relationship.
[10] Matrix continued as a corporate entity, only so that it might be a corporate vessel for long-term commissions owed to it on account of properties sold and hopefully realised. It ceased functioning, per se, and all workers (whether employees or purported independent contractors) were terminated effective immediately 28 June 2019.
[11] In the Form F2 completed by Mr Teis, he nominated the date he was notified of his dismissal as 28 June 2019, and the date the dismissal took effect as 1 July 2019. In the documents provided by him attached to the Form F2, the email above at [8] was included, however the header indicating the date that it was sent was not included. This prevented the Commission from being alerted, in its typical administrative review on receipt of an unfair dismissal application, that the dismissal may have taken effect on 28 June 2019, and not 1 July 2019.
[12] In replying to my request in [7] to address the Commission relevant to s.394(3) of the Act, Mr Teis responded on 25 February 2020 as follows:
“Applicant’s Response:-
24th June 2019 All staff received an email stating the business was closing and everyone would receive a termination letter by 30/6/19, but welcome to stay working out of the office until 31/8/19 (copy attached)
28th June 2019 The Applicant received a Termination email.
9th July 2019 5pm the Applicant finally got to meet with both of the Directors to discuss the mass terminations/closing of the business/my Agreement. Both Directors simply stated they had closed the business and therefore it, the staff’s Independent Contractor Agreements and my Agreement no longer existed. Neither wanted to try and understand how their decision effected staff or myself. Their legal advice was simply – sink the business and walk away.
General All Independent Contractor Agreements that Sales Staff had stated clearly in clause 9 that any termination notice needed to be in writing and 1 months notice given, yet were told on 24th June that the business closes 30/6/19.
My Agreement dated 20/4/18 was for 3 years.
Directors closed their business 30/6/19 and told staff they were welcome to go with either director or move elsewhere yet neither Director had a new business set up. No business name, no premises, no Corporation Licence etc to give staff a proper alternative. As corporate licenses take time to obtain, new premises and business names sourced. .etc, staff could not really wait as they need to earn money for bread and butter.
The Applicant desperately tried to get the meeting with both directors asap to try and keep the team together but got fobbed off until the 9/7/19.
In all of that unexpected confusion it appears that I have put the 1/7/19 probably because the business closed 30/6/19.
I usually always consider my age as an asset. In this particular case I appear to have put the wrong date on the initial form. That was not meant to mislead anyone and if it has, I sincerely apologise.”
[13] On 4 March 2020, Ms Du provided the following submissions on behalf of Matrix:
“The Applicant has not shown any exceptional circumstances required under s394(3) of the Fair Work Act 2009 for the FW to allow for such further period for the application by the Applicant.
It appears more than coincidental that the Applicant has stated the dismissal date as 1 July 2019 when he submitted the application on 21 July 2019, probably after finding out that the application must be submitted within 21 days of any alleged dismissal.
The Applicant has merely stated a series of events but has not provided any reason for the delay in making the application. The final meeting between the Applicant and the directors of the Respondent was on 9 July 2019 and the Applicant had ample time after that to file any application with the FWC.
The Applicant had been aware since 24 June 2019 that his services would be terminated and did receive an email to that effect on 28 June 2019.
As the Applicant had pointed out and confirmed, all contracts signed with the Sales Staff were Independent Contractor Agreements. It was the Applicant who advised the Respondent to sign independent contractor agreements with the Sales Staff. The Applicant’s contract with the Respondent was also an independent contractor agreement.”
[14] On 6 March 2020, I informed the parties that my decision would be decided on the papers and my decision was reserved.
Applicable Case Law
[15] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd1where the Full Bench said:
‘[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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]
[16] For exceptional circumstances to arise as contemplated by s.394(3) of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
[17] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,2 a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers3 stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:4
‘As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.’ (original emphasis)
Consideration
What was the date of the dismissal?
[18] On 24 June 2019, Mr Teis was informed by Ms Du and Ms Dong that he would receive a termination notice by 30 June 2019. The letter stated that Ms Du and Ms Dong would use the premises up until 31 August 2019 individually in their own respective businesses, and workers were welcome to consider if they would like to work for one of the directors, or leave the corporation entirely.
[19] Whilst the letter stated that he would receive a termination notice by 30 June 2019, [my emphasis], he in fact received the notice on 28 June 2019, advising that the termination was immediate. In spite of any notice within the purported Independent Contractor Agreement requiring one month’s notice, the email dated 28 June 2019 was unambiguous; termination as of 28 June 2019 was immediate.
[20] I conclude that the date of the dismissal was 28 June 2019, and it was necessary to make the application by 19 July 2019. The application was made on 21 July 2019. Accordingly, it has been made two days out of time.
Subsection 394(3)(a) - The reason for the delay
[21] Mr Teis has not provided any reason for the delay in bringing the application two days late other than to state that he was awaiting a meeting with the two directors which didn’t take place until 9 July 2019. He has not provided any explanation for the time between 9 July 2019 and 19 July 2019 and up until 21 July 2019.
[22] Noting that the determination whether to grant an extension or not is a discretionary one, I have determined that the reason for the delay weighs against exercising the discretion to grant an extension of time.
Subsection 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect
[23] Mr Teis became aware of the dismissal on 28 June 2019, and not later. Mr Teis’ knowledge of the dismissal from 28 June 2019 weighs against exercising the discretion to grant an extension of time.
Subsection 394(3)(c) - Any action taken by the person to dispute the dismissal
[24] On the evidence before me, it appears that the only action taken by Mr Teis to dispute the dismissal, other than bringing the application, was to meet with the directors on 9 July 2019. Mr Teis stated in other evidence relevant to the jurisdictional objections raised by Matrix that after receiving the termination notice, he raised the issue with one of the directors that his contract was for three years, who “calmly told me that it would be a costly exercise for me to take legal action against the company and that the company would be closed as soon as possible to avoid any litigation and responsibility.”
[25] Mr Teis took some action to dispute the dismissal. I have determined that the action taken by Mr Teis to dispute his dismissal weighs in favour of exercising the discretion to grant an extension of time.
Subsection 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[26] In these particular circumstances, I do not consider there to be any prejudice to the employer of a two-day delay. This weighs in favour of exercising the discretion to grant an extension of time.
Subsection 394(3)(e) – The merits of the application
[27] It is an unusual scenario to have heard all of the evidence relevant to the jurisdictional objection as to whether Mr Teis was an employee, before dealing with the out of time issue.
[28] My decision on the jurisdictional issue was reserved, however I would have made a finding that Mr Teis was not employed by Matrix, and was, in fact, an independent contractor. It is not necessary for me to detail the reasons why I would have made such a finding given the decision I have made relevant to the out of time consideration.
[29] I have determined that the merits of the application weighs against exercising the discretion to grant an extension of time.
Subsection 394(3)(f) – Fairness as between the person and other person in a similar position
[30] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd:5
‘Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’
[31] Neither party made submissions that identify cases of a similar kind, from which consistent principles should be applied to ensure fairness as between them.
[32] This is a neutral factor when considering whether to exercise the discretion to grant an extension.
Conclusion
[33] I have considered each of the criteria set out in s.394(3) of the Act. I am not satisfied that there are exceptional circumstances for me to exercise my discretion to extend time for Mr Teis to make his application.
[34] Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Teis G, Applicant
Du L and Dong V, Directors of the Respondent.
Hearing details:
2 December 2019, Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR717554>
1 [2011] FWAFB 975.
2 [2018] FWCFB 901.
3 (2010) 197 IR 403 at [16]-[18].
4 [2018] FWCFB 901 at [38].
5 [2016] FWCFB 6963 at [41].
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