Hira Williams v Toll Jalco T/A Toll People

[2016] FWC 6380

[2016] FWC 6380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Hira Williams
v
Toll Jalco T/A Toll People; Toll Personnel Pty Limited T/A Toll People
(C2016/800)

COMMISSIONER CIRKOVIC MELBOURNE, 6 SEPTEMBER 2016

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application

[1] On 8 April 2016 Mr Hira Williams (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondents to the application are Toll Personnel Pty Limited T/A Toll People and Toll Jalco T/A Toll People [(Respondents), (first Respondent) and (second Respondent) respectively)].

[2] The Applicant commenced employment with the first Respondent on 11 November 2013. The first Respondent is a labour hire and recruitment company that places workers on temporary labour hire assignments with its clients, including the second Respondent. The Applicant was placed by the first Respondent on assignment to the second Respondent. In his application the Applicant said that his dismissal from the second Respondent took effect on 17 February 2016. In his subsequent outline of argument and evidence at the hearing, the Applicant said that he requested an employment separation certificate from the first Respondent on 18 March 2016, as he believed that his employment with the first Respondent had ceased.

[3] The Applicant submits that the application was not lodged out of time. The Respondents submit that the Applicant was not dismissed.

Alleged Contravention

[4] The Applicant submits that he was dismissed because of absence from work. A breach of sections 346, 351 and 352 are alleged.

Background

[5] On 27 April 2016, the Respondents consented to the matter progressing to a conference prior to a determination of the extension of time.

[6] On 14 June 2016 a conference was conducted via telephone and at the conclusion of the conference the matter remained unresolved.

[7] On 1 July 2016, directions were issued for the filing of submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 11 July 2016, and the matter was allocated to me.

[8] During the hearing of 11 July 2016, it became evident that the first Respondent wished to rely on the evidence of Mr Shaun De Preez, a recruitment consultant at the first Respondent. The first Respondent was directed to file a witness statement for Mr De Preez and the matter was relisted for hearing on 28 July 2016.

[9] The Applicant was self-represented. The Respondent was self-represented.

Respondent’s Submissions

[10] The Respondents submit that there was never an employment relationship between the Applicant and the second Respondent. The Respondents submit that the Applicant was placed by the first Respondent on assignment to the second Respondent. The Respondents initially submitted that the second Respondent requested the first Respondent remove the Applicant from its business, and that this took effect on 28 February 2016. The Respondents submitted this was a consequence of the Applicant demonstrating poor performance over a period of time, in the form of regular late or non-attendance at work. 1 However, the evidence of Mr De Preez, during the telephone hearing of 28 July 2016, was that the Applicant was not terminated from the second Respondent, that instead the Applicant’s shifts were reduced and that the Applicant had informed the first Respondent that he wanted to increase his shifts. The Respondents submit that on 14 March 2016, the Applicant made threats to disrupt the Respondents businesses by making serious and unfounded allegations against employees and management.2

Legislative scheme

[11] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(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 (2).

[12] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[13] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 3where 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]

[14] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...
(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[15] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[16] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Was the Applicant dismissed?

[17] Section 386 defines dismissal in the following terms:

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[18] None of the exclusions set out in s.386(2) have application to the Applicant’s circumstances. I have concluded that, notwithstanding that s.386 relates to dismissal in the context of Division 3 of Part 3-2 and applies to unfair dismissals, the concept of dismissal as being an action at the initiative of the employer remains central to the concept of dismissal for the purposes of s.365.

[19] The Applicant’s evidence was that:

• He had been told by Mr David Ordanoski, a recruitment consultant at the first Respondent that he was on standby with the second Respondent.



• He made numerous phone calls to Mr Ordanoski from 17 February 2016 to 1 March 2016.



• A week prior to 1 March 2016, he had called Mr De Preez to find out what was happening with his employment with the second Respondent.



• He attended a meeting with Mr De Preez on 1 March 2016, to find out what was happening with his employment.



• During the meeting Mr De Preez informed him he had been dismissed by the second Respondent from 18 February 2016, due to absenteeism and that alternative employment would be found for him.



• He had told Mr De Preez that he had heard of another ‘host employer’ and that Mr De Preez had told him that he would get in contact with that employer.



• Mr De Preez had informed him he would be in contact in a few days with suitable employment.



• He was not contacted by Mr De Preez following the meeting of the 1 March 2016.



• He had left two messages with the first Respondent requesting Mr De Preez call him back.



• He contacted Centrelink because he was experiencing financial difficulties and that Centrelink advised him he would need a separation certificate.



• He requested a separation certificate from the first Respondent on 18 March 2016.

[20] The Applicant submits that his termination was effective as of 18 March 2016.

[21] The Respondents initially submitted that the Applicant requested an employment separation certificate at the meeting of 1 March 2016. Subsequently the witness statement of Mr De Preez, submitted that the Applicant requested a separation certificate on 15 March 2016. During the hearing of 28 July 2016, Mr De Preez gave evidence that the Applicant requested a separation certificate on 18 March 2016.

[22] Mr De Preez’s evidence was that:

• The meeting of 1 March 2016 came about as the Applicant had said he was not getting enough shifts.



• During the meeting he told the Applicant about a position that he thought was a good fit.



• During the meeting he offered the Applicant alternative roles that the Applicant had told him he wanted to wait and that he would get back to him.



• The Applicant was not terminated from the second Respondent and that he does not recall telling the Applicant that he had been terminated.



• The roles being considered for the Applicant were roles that would match the current skill set he was utilising with the second Respondent.



• On 2 March 2016, he called the Applicant to offer another shift and that the Applicant refused that shift.



• The first Respondent contacted the Applicant 20 times to offer him alternative work via text messages and phone calls and the Applicant did not respond to these offers.



• On 15 March 2016, the Applicant contacted Mr De Preez to say he had found out about an opportunity at Toll Express. He told the Applicant that he would have to talk to them and make a recommendation that he be put on the roster.



• On 18 March 2016, the Applicant contacted the first Respondent to request a separation certificate so that he could access unemployment benefits through Centrelink.



• After the 18 March 2016 the Applicant was still on the books and was still being offered work.

[23] The Respondents submit the Applicant was offered work until 5 April 2016. The Respondents submit that the Applicant’s request for a separation certificate was a resignation and that the Applicant’s employment came to an end at his own initiative.

[24] In response to a question from the Commission, to the Applicant, that he was offered work on numerous occasions after the meeting on 1 March 2016, the Applicant’s evidence was that:

• He was looking for an hourly rate of around $30 an hour.



• He does not remember a discussion taking place on 2 March 2016.



• He did not respond to the text messages offering work because he and his partner use the same phone and that by the time he checked the messages it was too late to respond and he thought the job would be unavailable by then.



• His partner would only occasionally tell him about the job offers via text message.

[25] The Commission put to the Respondents, that the evidence of Mr De Preez was not that there was a resignation, instead that his evidence was that the Applicant had contacted him to request a separation certificate so that he could access employment benefits and that after this the Applicant was still on the books and being offered work. In response the Respondents submitted that they eventually took the Applicant’s request as a resignation.

[26] The time limit for the making of a s.365 application commences from the time the dismissal took effect. Hence, if there was no dismissal there can be no basis upon which to grant an extension of time. Consequently, I have initially considered whether the Applicant was dismissed within the meaning of s.386 of the Act. In reaching my conclusions, I have had regard to the Australian Industrial Relations Commission Full Bench decision in O’Meara v Stanley Works Pty Ltd⁴. This decision considered the concept of “termination at the initiative of the employer”.

[27] In O’Meara v Stanley Works Pty Ltd the Full Bench stated:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” [Mohazab at page 205] Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

Finding on whether or not the Applicant was dismissed

[28] Whilst the application was made against the first and second Respondent, there is no dispute between the parties that the first Respondent engaged the Applicant to perform work for the second Respondent. On that basis I accept that the Applicant was not employed by the second Respondent.

[29] Having considered the evidence, I am not satisfied that the Applicant’s employment was terminated at the initiative of his employer, the first Respondent. I do not consider that the Applicant has established an action or actions on the part of the Respondent which were either intended or had the probable result of bringing the employment relationship to an end. When asked to explain why he failed to respond to the first Respondent’s offers of work from 1 March 2016 to 5 April 2016, he responded that as he was sharing his mobile phone with his partner he often checked his messages too late. I do not find this explanation convincing. I prefer the evidence of Mr De Preez, that the first Respondent contacted the Applicant at least twenty times after the meeting of 1 March 2016, via text messages and phone calls, to offer him alternative work, matching his current skill set, that was of a commensurate hourly rate and that the Applicant did not respond. The Applicant has failed to provide an acceptable reason for his failure to respond to the offers of alternative work. On 18 March 2016, the Applicant requested an employment separation certificate so that he could access unemployment benefits through Centrelink. I find that the Applicant’s employment was not terminated at the initiative of his employer.

[30] Accordingly, I do not consider that I have a capacity to determine an extension of time application. Any consideration of the factors set out in s.366(2) then becomes a hypothetical exercise in that I would need to assume that the Applicant was dismissed. This would be contrary to all of the credible material before me.

Conclusion

[31] I have concluded that the Applicant was not dismissed. Dismissal is a fundamental prerequisite for the making of an application pursuant to s.365. It follows that I do not think that the Applicant has made a valid application. However, the Act does not establish a jurisdiction upon which the Commission can dismiss an application on this basis.

[32]A certificate pursuant to s.368 will be issued. This certificate will advise that I consider the Applicant’s application has no reasonable prospect of success in that he was not dismissed and accordingly, on the material before me, the application cannot properly be made.

COMMISSIONER

Appearances:

Hira Williams, Applicant;

Rebecca Misfud, of the Respondent.

Hearing details:

2016

11 & 28 July (Telephone hearing).

 1   Employer Response to General Protections Application, lodged 22 April 2016, p.3

 2   Ibid.

 3   [2011] FWAFB 975.

4 PR973462

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