Graham Davies v Marlau Nominees Pty. Ltd
[2024] FWC 2011
•30 JULY 2024
| [2024] FWC 2011 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Graham Davies
v
Marlau Nominees Pty. Ltd.
(C2024/3698)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 30 JULY 2024 |
Application for the Commission to deal with a dismissal dispute under s.365 of the Act –application filed 4 days out of time – circumstances not exceptional – extension not granted – application dismissed.
On 4 June 2024, Mr Grahan Davies made application to the Fair Work Commission to deal with a general protections dispute involving dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). As Form F8 – General Protections Application Involving Dismissal (Form F8) filed by Mr Davies suggested that the application was not made within 21 calendar days after his purported dismissal took effect, Mr Davies was required to seek an extension of time in which to file his application. The Respondent to the application is Marlau Nominees Pty. Ltd t/a Paramount Liquor. In its Form F8A – Response to General Protections Application (Form F8A), the Respondent objected to Mr Davies’ application on the basis that it had been lodged out of time. The Respondent also asserts that Mr Davies was not an employee and therefore, not dismissed within the meaning of s.386 of the Act.
I conducted a determinative conference on 29 July 2024, with reference to the material filed by the parties and evidence adduced on the day. Mr Davies appeared with the assistance of Mr Murray Davies and gave evidence. The Respondent was represented, with permission, by Mr James Hooper of Counsel. Mr Nathan Rowe, CEO, gave evidence for the Respondent.
Legislation
Section 366 of the Act sets out the statutory requirements for the timing of an application made pursuant to s.365:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
The Act allows the Commission to extend the period within which an application under s.365 of the Act must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] 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.[2]
The requirement that the matters outlined in s 366(2) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr Davies’ application for an extension of time.
Background – Dismissal and Dismissal Date
Notwithstanding there is a dispute as to whether Mr Davies was an employee of the Respondent and dismissed, I will proceed on the basis of an assumption that Mr Davies was an employee and there was a dismissal solely for the purposes of considering whether this application has been filed within the prescribed 21-day time limit and if not, whether a further period should be allowed under s.366(2) of the Act. A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.[3]
I have noted there is a letter dated 25 June 2024 from Mr Rowe to Mr Davies that was provided to the Commission by Mr Davies. This letter states, inter alia, “As per your recent request, I am writing to formally inform you that your contractor agreement with Paramount Liquor has concluded effective May 1, 2024”. Based on the evidence given at the determinative conference, I am satisfied this letter was written by Mr Rowe as a result of a request from Mr Davies which was made after Mr Davies had filed the Form F8. At that time, Mr Davies was seeking to access benefits from Centrelink and required written confirmation of the termination. I do not therefore regard this letter as an indication of when Mr Davies first knew that he had been dismissed.
The Respondent says termination took place on 1 May 2024, based on a text message sent to Mr Davies that day which included the following:
a)“I really do feel for you mate, but I don’t think that working at Paramoint [sic] at this point in your life is the right thing for you. I think you need a fresh start and may enjoy doing something else for a change.”
b)“I just think it is time we called it a day and part ways in an amicable position, so that you can move on to bigger and better things.”
c)“Thank you again for everything you’ve achieved over the years at paramount…”
d)“All the best mate and I hope everything gets on track for you.”
While I am satisfied that Mr Davies understood that he had been terminated at that point, there is dispute as to what happened next. Mr Davies sent a text message in reply that included “if u able to call me that be great I’m not here trying to change your mind...” and said that he had a telephone discussion with Mr Rowe the next day (Thursday, 2 May 2024), which concluded with Mr Rowe telling him he would reconsider.
Mr Rowe does not recall telling Mr Davies that he would reconsider his decision. His evidence was that he did not think he offered to do this. I am satisfied the contention that there was no offer to reconsider the termination is consistent with the context of the relations between the Respondent and Mr Davies as at 1 May 2024, which included:
a)The Respondent having previously terminated the services of Mr Davies on 10 April 2024, which is not in dispute;
b)The Respondent advising, by letter dated 23 April 2024, that it would give Mr Davies another opportunity, based on a range of strict conditions; and
c)Mr Rowe’s statement in the text message to Mr Davies on 1 May 2024, “I stuck my neck out for you and overruled all leadership in the business to get you another chance.”
The Respondent maintains that the termination occurred on 1 May 2024 and therefore, the prescribed 21-day period expired at midnight on 22 May 2024 and the delay required to be considered in this case is the 13-day period that ensued until the Form F8 was lodged on 4 June 2024. Mr Davies maintained that Mr Rowe told him that he would reconsider but when the ensuing weekend passed and no return contact had been made by Mr Rowe during the following week, he concluded that the termination stood. When pressed, Mr Davies said he reached this conclusion on or about Wednesday 8 May 2024 and if not, certainly by 10 May 2024, when he sought advice from an HR consultant about making a claim related to his dismissal. If the submission of Mr Davies that he knew he had been dismissed when he engaged the HR Consultant on 10 May 2024 is accepted, the prescribed 21-day period expired at midnight on 31 May 2024 and the delay required to be considered is the 4-day period that ensued until the Form F8 was lodged on 4 June 2024.
I have decided to deal Mr Davies’ application for an extension of time having regard to the scenario of the 4-day delay he has advanced.
Reason for the delay – s.366(2)(a)
The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from 10 May 2024 until the end of the 21-day period which, for the purposes of this decision, ended at midnight on 31 May 2024. However, the circumstances from 10 May 2024 must be considered when assessing whether there is a credible reason for the 4-day delay in this case, or any part of that delay, beyond the 21-day period.[4]
Mr Davies said that having consulted the HR Consultant on 10 May 2024, he heard nothing from her until 23 May 2024 when she advised that she would not be able to take on his matter dues to an illness in her family. Although this accounts for a 13-day period within the 21-day period, there was still a further 8 days within which Mr Davies could have made an application within time. The evidence before me discloses that Mr Davies commenced the process of preparing a F8 for lodgement after 23 May 2024.
Mr Davies stated that he did not know there was a 21-day limit, having assumed making a general protections application involving dismissal would have a similar time period to that applicable when making a Workcover claim. I have also noted that Mr Davies was receiving some assistance from his father, who appears to have become aware of the 21-day limit when searching the Commission’s website at some point after 23 May 2024. I can accept Mr Davies (and his father) may not have had prior experience with general protections laws and processes or dealing with the Commission. However, it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an application within the time prescribed[5] and unfamiliarity is not exceptional.
Mr Davies gave details of isolating himself and having withdrawn from outside contact following 1 May 2024 and also advised that he was upset at the state of his relationship with his daughter during that time. I accept that Mr Davies may have experienced stress and a negative reaction as a result of learning of what he understood to be a dismissal. However, this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions.
Mr Davies also cited mental health issues, although he provided no particulars of a diagnosis in this regard and stated that he had neither received medical treatment nor been required to take medication as a result. There was accordingly no material (medical or otherwise) that persuaded me that Mr Davies was so debilitated by mental health issues during the 21-day period after his dismissal had taken effect, that he could not (with or without the assistance of his father) have completed and filed a Form F8 within the 21-day period prescribed for making an application to the Commission to deal with a general protections dispute involving dismissal.
Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an application that provide a credible reason for the 4-day period of delay. Nor do I consider there was an acceptable or reasonable explanation for the 4-day delay, even taking into account the stated difficulty Mr Davies had when attempting to upload his Form F8 on 3 June 2024. The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal – s.366(2)(b)
Action taken by an employee to dispute a dismissal, other than lodging a general protections application, may weigh in favour of granting an extension of time.[6] I am satisfied Mr Davies gave notice that he wished to discuss his termination by sending his text message to Mr Rowe on 1 May 2024 and that they had a discussion on 2 May 2024. Even though Mr Davies had no further contact with Mr Rowe prior to filing his Form F8, taking these actions to dispute his termination weigh in favour of a finding that there are exceptional circumstances, but not to any great extent.
Prejudice to the employer – s.366(2)(c)
Neither party contends there is prejudice to the Respondent including prejudice caused by the delay. I cannot identify any greater prejudice that would accrue to the respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. This consideration is a neutral consideration.
Merits of the application – s.366(2)(d)
I am required to “take into account” the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory.
Mr Davies firstly asserted that he was terminated in breach of s.352 of the Act, arguing he was dismissed because he was temporarily absent from work because of an injury he had sustained to one of his legs. Mr Davies argued that even though the Respondent knew about the impact of his restrictions, it assigned him work that it knew would be difficult for him to perform. Mr Rowe said that Mr Davies was not rostered any work until he had obtained a medical clearance and had confirmed he was fit to work. Further, the Respondent submitted the reason Mr Davies was terminated was his lack of reliability and poor performance, which was acknowledged by Mr Davies in his text message to Mr Rowe on 1 May 2024, in which he stated “I really did let u n Paramoint down”.
Mr Davies further asserted that he had been engaged pursuant to a sham arrangement, classified as a contractor when he should have been treated as an employee. He purported to rely on s.358 of the Act. The Respondent submitted that having regard to the facts, the reliance of Mr Davies on s.358 was misconceived. It argued that it had always regarded Mr Davies as an independent contractor and therefore had no interest in dismissing him on 1 May 2024, only to re-engage him again as an independent contractor.
The weight to be given to the merits consideration in s.366(2)(d) is dependent on the extent to which there is merit in the substantive application.[7] While it does not appear the assertions of Mr Davies in relation to ss.352 and 358 are reasonably arguable based on the material currently before the Commission, I accept the merits of the application of Mr Davies, assuming he could establish he was an employee, would turn on contested points of fact that would need to be tested, including under cross-examination, if an extension of time were granted, the matter proceeded and the parties fulsomely presented their respective cases. As, I am not able to make any firm assessment of the merits at this stage, I do not consider they tell for or against an extension of time. This is a neutral consideration.
Fairness as between the person and other persons in a similar position – s.366(2)(a)
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. However, cases of this kind will generally turn on their own facts. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. The matters Mr Davies raised were essentially directed at his treatment while working for the Respondent. I therefore consider this factor to be a neutral consideration.
Conclusion
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
The task before me in determining whether to grant this extension of time application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd:
“[38] 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.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”[8]
I have had regard to and weighed each of the matters I am required to take into account under s.366(2), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2). Accordingly, I dismiss the application of Mr Davies to the Commission to deal with a general protections application involving dismissal. An Order to that effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
G Davies, Applicant with support from M Davies.
J Hooper of counsel for the Respondent.
Hearing details:
2024.
Melbourne (by Video using Microsoft Teams):
July 29.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Ayub v NSW Trains [2016] FWCFB 5500.
[4] 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].
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[7] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
[8] [2018] FWCFB 901.
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